Published by The Lawfare Institute
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On October 5, Third Way and the R Street Institute sent a joint request to the respective leaders of the House and Senate intelligence committees. The letter asks the committees to declassify records of the legislative negotiations leading up to passage (and subsequent reauthorization) of the FISA Amendments Act (FAA) of 2008.
Currently the public enjoys precious little insight into what Congress was thinking when it passed the FAA. During debates on the floor, supporters made general pronouncements in favor of a stronger intelligence capability, but the specific tradeoffs contemplated during committee consideration remain largely hidden. Votes on amendments indicate which ideas failed to gain traction, but cannot reveal the decisive questions at issue in each case. A commitment by the intelligence committees to declassify their deliberations could rectify this problem and contribute to our national security in two critical ways.
First, as Title VII of the FAA expires in December 2017, transparency into the original debate promises more informed arguments going into the next one. Many members who voted for the FAA have left Congress. Those who remain would benefit greatly from examining their former colleagues’ positions. Lawmakers who are new to intelligence may learn why previous attempts to reform the statute were defeated, and perhaps choose to question that reasoning in light of new information.
Second, naysayers aside, legislative history is in reality an important source in interpreting Title VII’s many vague provisions. For example, Section 702 arguably permits the acquisition of electronic communications that simply refer to or describe an authorized target (i.e., the target need not be party to the exchange). The ACLU, among others, argues that this reading violates the Fourth Amendment’s “reasonableness” requirement—a standard the statute explicitly adopts. Did Congress foresee the NSA’s eventual legal construction? Assuming they prove justiciable, current and future court cases are likely to raise similar questions, but as of now, they are difficult to answer.
The executive branch deserves credit for declassifying a vast trove of documents relating to post-9/11 surveillance authorities. It is time for the Congress to catch up.