Ellen Nakashima and Spencer S. Hsu have an article in The Washington Post on the new FISA rules of procedure which I wrote about here and here. Their take:
...the FISC has drafted a revision to its rules of procedure to clarify, among other things, who has standing to challenge surveillance orders, and to give judges more discretion in disclosing rulings. While it's not a giant leap for civil liberties and transparency, privacy advocates and some industry lawyers say it's a step in the right direction.
* * * *
The court rarely releases opinions, but when it chooses to do so, existing rules require it to submit the opinion to the executive branch first for redaction. Under the new rules, the court "may" seek executive branch review.
Giving the court more discretion "is a good thing," said Melissa Goodman, staff attorney for the American Civil Liberties Union, which has sued unsuccessfully to participate in FISA court proceedings. But "it would be even better if the FISA court went further and said there would be a presumption in favor of disclosure of important and significant legal rulings."
Unfortunately that's where the article ends. The ACLU says it's a "good thing" and even argues that it would be better if rulings were presumptively disclosed, end of story. I disagree with the ACLU's prescription, but I understand their reasoning and motives. What I don't understand is why the Post's authors didn't seek counterarguments? They fail to quote anyone who thinks that increasing the court's discretion to disclose information without consulting with the Executive branch is potentially harmful to national security. That's a viewpoint expressed in my prior posts and one that countless former government officials would echo. From the perspective of institutional competence (e.g. familiarity with the entire intelligence picture) and democratic accountability, there are very good reasons to make disclosure decisions a collaborative effort, not one purely at the discretion of the FISC. That might mean tweaking the rules to strike the right balance, but doing so is preferable to how the rules are currently drafted. The Washington Post should have quoted both sides in this important debate, failing to do so is a disservice to their readers.
Comments