As 2012 came to a close, Congress reauthorized the FISA Amendments Act (FAA) for another 5 years. Yes, the same FAA under which the government cohttp://www.google.com/nducted unconstitutional surveillance; the same FAA for which the government refuses to estimate the number of Americans who have been spied on; and yes, the same FAA that has been interpreted in substantial ways within secret court opinions. . . .
Senators have repeatedly complained that provisions of FISA have been secretly interpreted in ways that differ markedly from the language of the statute. These interpretations, according to the Senators, are contained in opinions issued by the FISC.
But perplexingly, both the executive branch and other members of the Senate have taken the position that, despite the secrecy of the FISC opinions, those opinions do not constitute “the law” or “secret law.” . . .
But this much is clear: when a court issues an opinion containing a significant interpretation of a public statute, that court’s opinion is the law. When the court’s opinion is withheld from the public, that opinion is a “secret,” even if the statute the opinion interprets is already publicly available. Because a court’s opinion constitutes the “law,” refusing to disclose those opinions to the public results in “secret law.”
The basis for the government’s secrecy claim is irrelevant: the law is still “secret” whether the opinion is classified, protected by the attorney-client privilege, or kept secret for any other of the host of legal privileges available to the government.
The only relevant issue is whether the law is publicly disclosed. And EFF joins with Senators Merkley, Wyden, Udall, Paul, and the other 33 Senators that voted to support this simple principle: when the government interprets federal surveillance law in a way that fundamentally affects citizens rights, that interpretation must be disclosed.