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 conducted 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.
However, in the debate leading up to the reauthorization, Senator Jeff Merkley sponsored a straightforward amendment, with bipartisan support, that would have provided the public with a greater understanding of the FAA and the government’s interpretations of the law. Here’s a picture of the Senator, with a not-so-subtle visual aid describing the effect his amendment would have.
The amendment was a measured nudge towards greater transparency: it would have required the government to either declassify Foreign Intelligence Surveillance Court (FISC) opinions, or provide unclassified summaries of those opinions; or, even failing that, just give a progress report on the status of trying to declassify FISC opinions. Despite outspoken advocates for FAA reform like Senators Merkley, Wyden, Udall, and Paul, the Senate voted down the Merkley Amendment, 54-37.
Want to see what Senator Merkley was talking about? What the Senate decided they didn't need to address? Here is a sample of the government’s response to EFF’s FOIA lawsuit for the secret FISC opinions that found the government's FAA surveillance unconstitutional: