Editorial: The law should not be hidden

Published 4:00 am Saturday, December 29, 2012

Here’s an idea: Don’t hide the law from the public. It’s simple and it’s important. But it’s also not possible for Americans to know some interpretations of their government’s laws.

The United States has a secret court — the Foreign Intelligence Surveillance Court. It was established by Congress in 1978. Seven federal district court judges make up the court.

When the U.S. government wants to conduct surveillance on a foreign spy or a U.S. citizen who may be engaged in a crime, it can go to the court and, in secret, seek a warrant.

There are many reasons sensitive matters make a secret court necessary. But what if there are significant interpretations of the laws covering surveillance inside and outside the United States? What if the interpretations are quite different than a plain reading of the law passed by Congress?

It has been publicly reported that it has happened, allowing the United States to be governed partly by secret laws.

Oregon Sens. Jeff Merkley and Ron Wyden, both Democrats, proposed an amendment Thursday to the reauthorization of the intelligence bill. They were joined by Sen. Mike Lee, a Utah Republican. The amendment asked that significant opinions of the Foreign Intelligence Surveillance Court be declassified.

“Secret law is inconsistent with democratic governance,” the amendment says, in part. “In order for the rule of law to prevail, the requirements of the law must be publicly discoverable.”

The amendment attempts to shelter the need for the government to keep secrets about intelligence sources, methods and who it’s spying on.

Opinions and orders would be declassified when possible. For more sensitive matters, the amendment would only require disclosure of unclassified summaries. And if the Attorney General determined that even a summary could not be released without endangering national security, the amendment still requires that an estimate of the number of such decisions be made public.

The amendment failed.

Merkley said Thursday he would try again next year. He should. The law should not be a secret.

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