Schumer, Israel want secret court less secret

U.S. Sen. Charles Schumer (D-N.Y.) addresses a news U.S. Sen. Charles Schumer (D-N.Y.) addresses a news conference in Washington. (July 25, 2012) Photo Credit: Getty Images

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WASHINGTON -- A month after leaks revealed that the National Security Agency collects millions of U.S. telephone and Internet records, two federal lawmakers representing Long Island say they want the secret court that OKs spying and surveillance programs to be more transparent and accountable.

Sen. Charles Schumer (D-N.Y.) and Rep. Steve Israel (D-Huntington) are backing or drafting legislation to require the court that interprets the Foreign Intelligence Surveillance Act, or FISA, to publish its rulings, or at least summaries, to make public their legal reasoning.

Israel said he's writing a bill that also changes how judges are appointed to the court.

A debate over making the FISA court orders public would help answer questions about whether the NSA programs are legal and effective, Schumer said.

But Rep. Peter King (R-Seaford) cautioned that publishing secret FISA court orders could inadvertently alert terrorists and enemies to helpful facts and spying methods. "I'd be willing to consider it, but I'd be very reluctant," he said.

The FISA court, created 35 years ago, operates out of public view and seldom publishes any of its orders or opinions. The court acts as arbiter on the legality of NSA, FBI and other requests for spying using surveillance and data collections.

After the leaks by former NSA contractor Edward Snowden, however, the problem is that "no one is quite sure if the FISA court is a real arbiter," Schumer said.

"The problem is basically that no one knows how the FISA court is interpreting the word 'relevant,' " he said, referring to a FISA clause requiring surveillance to be relevant to terrorism or other investigations.

"In other words, is getting a list of 10 million phone calls relevant to security needs?" he said. "And if you saw the decision of the FISA court you could debate whether they're being an effective arbiter."

Schumer won FBI director nominee James Comey's promise to work with him on making the court orders public at his confirmation hearing last week.

Schumer is backing a bill by Sen. Jeff Merkley (D-Ore.) to require the U.S. attorney general to declassify FISA court orders so the court can publish them, or summaries if that is necessary to protect national security interests.

Israel said he's drafting a similar bill that also requires the court to report the number of orders it did not publish because of national security.

His bill also spreads the authority to appoint judges to the FISA court from the chief justice of the Supreme Court, who would appoint one judge instead of all 11 as is the case now, to the president, who would name two, and House and Senate leaders, who would appoint eight.

That would create bipartisan accountability, Israel said.

Steven Aftergood, director of the Federation of American Scientists' government secrecy project, said making FISA court orders public would be a good start.

"This is the right direction to go in, but it's a lot easier said than done," Aftergood said. The government says it can't declassify FISA court orders because if it releases the legal reasoning, it discloses the programs, he said.

Yet he said that while "officials deplore them, it may be [that] the leaks make this job easier because what they wanted to keep secret is already public."

Rep. Tim Bishop (D-Southampton) said the NSA programs are legal and effective, and he voted for them. But he said a law sometimes "takes on a larger role than we thought." He's reviewing bills that boost accountability.

Sen. Kirsten Gillibrand (D-N.Y.) declined to be interviewed. In a statement, she said she backs NSA programs but is looking at transparency bills.

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