From The International Herald Tribune:
The court that is not heard
Published: December 21, 2007
The U.S. Foreign Intelligence Surveillance Court, the special court that reviews government requests for warrants to spy on suspected foreign agents in the United States, seems to have forgotten that its job is to ensure that the government is held accountable to the law - not to help the Bush administration keep its secrets.
Last week, the court denied a request by the American Civil Liberties Union to release portions of past rulings that would explain how it has interpreted the Foreign Intelligence Surveillance Act (FISA). There are legitimate national security concerns at stake, but the court should share its legal reasoning with the public.
After the 9/11 attacks, the National Security Agency engaged in domestic spying that violated both FISA and the Constitution. Earlier this year, after a court ruled that the program was illegal, the Bush administration said that in the future it would conduct surveillance with the approval of the intelligence court. At the same time, the administration said that a judge of the court had issued orders setting out how the program could proceed.
The administration has repeatedly referred to these orders, but has refused to make them public. Much of the information the intelligence court handles must be kept secret, of course. What the American people should have is access to the court's legal interpretation of the act it enforces.
The idea of courts developing law in secret and handing down legal principles that the public cannot know about should not be part of the American legal system.
That is especially true when the subject matter is as important as the government spying on its citizens.
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