Secret law exists inside the United States.
As we wrote a few weeks ago, one of the main issues discussed on the Senate floor during the FISA debate was secret law. Under the law, makes secret interpretations and secret rulings about something that should never be secret: our constitutional rights. Sen. Jeff Merkley (D-OR) fought for an amendment that would have required the administration to release the court鈥檚 opinions, to provide unclassified summaries of them, or to certify how many there are and why they can鈥檛 be released.
While that amendment failed, Merkley extracted a promise from Intelligence Committee Chairman Dianne Feinstein to find some way to get the information in those court opinions out into public view. The administration has been reviewing those opinions for a few years now with an eye towards disclosure but hasn鈥檛 released any of them or explained where they are in the process. Having the top dog on intelligence in the Senate pressing for disclosure may provide the extra oomph to shake them loose.
Let鈥檚 hope so, because a FOIA from the Electronic Frontier Foundation has that is literally a white out. In 2012, EFF filed FOIA requests for secret court opinions, referenced in the New York Times, which found government surveillance under FISA unconstitutional. In return, the EFF received: 1) notice from the Department of Justice鈥檚 National Security Division that there are several documents that they won鈥檛 see, at all, ever, and 2) copies of the administration鈥檚 classified testimony on FISA鈥 completely redacted. (You can find copies .)
This is why the American people need senators like Merkley. Without pressure from Congress, the national security establishment will continue sucking up communications of people inside the United States without transparency or accountability.
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