Draw back the curtain

Make secret court rulings public to allow a national debate about privacy, security

Revelations that the National Security Agency has been collecting the telephone records of millions of Americans has set off howls of outrage across the political spectrum. Neither Democrats nor Republicans should be surprised that this has been going on. The responsibility for it lies with Congress and with both presidential administrations since Sept. 11, 2001.

That news was followed by the release of another NSA program, called PRISM, that collects online activity directly from the servers of companies such as Google, Microsoft, Facebook and Yahoo. PRISM is not supposed to target Americans, but avoiding that is easier said than done.

A national conversation about this official snooping, as President Obama has urged, is essential. The only way that can happen is to bring the rationale for the surveillance out in the open, without revealing sources or methods.

To that end, a bipartisan group of U.S. senators, including Oregon's Rod Wyden and Jeff Merkley, have introduced a bill to declassify some rulings of the Foreign Intelligence Surveillance Court. The FISA court operates in secret, giving government agencies authority to conduct surveillance inside and outside the United States.

In the most recent case, the FISA court ordered Verizon, one of the country's largest phone companies, to give the NSA "metadata" of all phone calls on its system on a daily basis — regardless of whether any Verizon customer was suspected of terrorist activity.

This kind of large-scale data mining became an issue in 2006 during the George W. Bush administration when it was revealed that the NSA was collecting massive quantities of phone, Internet and email records and sifting through them for clues to terrorist activity without any suspicion that a specific crime had been committed by anyone in particular.

President Bush authorized that data mining in an order weeks after the terrorist attacks of Sept. 11, 2001. Congress also enacted the PATRIOT Act, giving government unprecedented powers to collect information that might reveal terrorist activity.

According to the first reports of the latest NSA activity by the Guardian newspaper in England, the Obama administration has been interpreting the "business records" portion of the PATRIOT Act in new ways to justify wholesale snooping. Wyden, a member of the Senate Intelligence Committee, is briefed on what the government is doing, but is constrained from revealing classified information.

Still, he and his colleague, Sen. Mark Udall, D-Colo., have been warning that the Obama administration is relying on extreme interpretations of the law to justify unprecedented intrusions into the privacy of Americans.

The fear and vulnerability Americans felt in the aftermath of the 9/11 attacks naturally led the public to accept broad security measures to prevent more such attacks — measures they still support, according to new polls. But it should come as no surprise that special government intelligence-gathering powers in place for more than a decade would naturally grow increasingly intrusive.

Intelligence agencies need to be able to conduct secret surveillance when it is warranted. Preventing terrorist acts by detecting them in advance can save lives.

But there ought to be limits on how far the government may go without any specific suspicion. Where to set those limits should be the subject of a public debate. It is not possible to have that debate without knowing the rationale the FISA court relies upon in granting government surveillance requests.

The legislation introduced by Sens. Wyden; Merkley; Mike Lee, R-Utah; Dean Heller, R-Nevada; and several others would require the attorney general to declassify those FISA court opinions that discuss the legal rationale for government surveillance. It should receive prompt consideration.

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