How Secret Does A Secret Court Need To Be?

The Foreign Intelligence Surveillance Court, or FISA court, is the legal body that decides whether wiretaps and other surveillance methods used by the intelligence community are legal. Officials seem to agree that the procedures need to be more transparent, but how that would happen is anything but clear.

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Here's another question Congress took up today: Do secret courts always have to be secret? The Foreign Intelligence Surveillance Court decides whether wiretaps and other surveillance methods used by the intelligence community are legal. It's staffed by federal judges, but their work takes place in the shadows.

So today, Congress joined the debate over whether there's a better way. At a hearing, lawmakers and top intelligence officials all seem to agree that the FISA court could be more transparent. But as NPR's Dina Temple-Raston reports, they didn't figure out how to make that happen.

DINA TEMPLE-RASTON, BYLINE: Nearly everything about the FISA court - its deliberations, its opinions, its orders - is secret and classified. And some members of Congress think that has to stop.

REPRESENTATIVE JOHN CONYERS: There's no legitimate reason to keep this legal analysis from public interest any longer.

TEMPLE-RASTON: That's the top Democrat on the House Judiciary Committee, John Conyers of Michigan.

CONYERS: And if we are to strike the right balance with these surveillance authorities, then we must bring the public into the conversation as soon as it's appropriate and without delay.

TEMPLE-RASTON: The question is how to strike that balance, the balance between national security and openness. That's what lawmakers grappled with today. Republican Congressman Spencer Bachus of Alabama put the basic question to the top lawyer for the intelligence community, Robert Litt.

REPRESENTATIVE SPENCER BACHUS: Do you have any objection to the court opinions and periodic reports being made available to all members of Congress?

ROBERT LITT: I think we'd have to take that back. I think the answer is probably no, but I think we'd have to think about the implications of that.

TEMPLE-RASTON: These secret court rulings are now at the center of the debate over surveillance and privacy. It's no accident that one of the first things that former NSA contractor Edward Snowden leaked was a classified FISA court decision. It revealed how the court permitted the NSA to collect, but not analyze, basic data on US phone calls.

Snowden criticized the FISA court again last week during a press conference from the Russian airport transit lounge where he's marooned. He said because the FISA court works in secret, its decisions are illegitimate and immoral. Stewart Baker, the former general counsel at the NSA, says that while that sounds like a reasonable argument, on closer inspection, it doesn't hold up.

STEWART BAKER: Wow, you know, the Supreme Court's proceedings from the time of argument till they produced the opinion are secret. I've never heard somebody say, well, that makes their deliberations immoral.

TEMPLE-RASTON: What's more, Baker says, the FISA court's decisions are not all secret. There's some precedent for more openness. Already, there are discussions about how the public could see more of how the court operates. One possibility: the release of rulings overturned on appeal. Another option, imitate the Federal Reserve Bank and have the court release minutes or decisions after the fact. That option has its limits, though.

BAKER: With the Fed, after six months you can pretty much figure out what they did. With intelligence, you know, you might use a really good technique for 30 years and it has to be classified throughout that time.

TEMPLE-RASTON: Officials have told NPR that the administration is looking at FISA court documents it might redact and release; the most likely at this point, an 80-page document that explains the legal reasoning behind the FISA court decision Snowden leaked. He provided only a couple of pages of the court's order and not the underlying supporting material that explained the decision. There's no indication when the administration might release that supplemental material. Dina Temple-Raston, NPR News.

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