Let's open this thing up already

Today, I’m told, a bipartisan group of Members of Congress will introduce a bill in the House that would compel the declassification and release of these opinions. The bill is a companion House version to the Senate bill — spearheaded by progressive Jeff Merkley and Tea Partyer Mike Lee — that would do the same.[...]

There is no telling how many members of Congress will end up supporting declassification. Currently there are roughly a dozen Senators on board with the Merkley-Lee proposal. And Schiff says he expects that many more Representatives — from both parties — will join his proposal. But the question remains: How many members of Congress — how many Democrats in Congress — are willing to support this step? This push will seriously test just how far the alliance between the libertarian right and civil liberties left can go.

Meanwhile, it seems clear that Obama himself could declassify the opinions if he wanted to. As noted here yesterday:

To his credit, Obama has said that concerns about the secrecy shrouding these programs are “legitimate,” and has promised to push for more public disclosure. Voicing support for the declassification and release of key FISA opinions would be a good place to start, and would help bring about the “debate” Obama says he wants. Alternatively, if there is some reason why this is not a good idea, the President should tell us what it is.

Schiff adds: “In the interim, we’d like to see the administration act on its own to declassify these opinions to the maximum degree possible.”

In March, the presiding judge of the Fisa court, Reggie Walton, wrote to Wyden and Udall to inform them that he "would not anticipate" releasing many of the court's opinions, given their "fact-intensive nature".

These [FISA] documents are often compared to the warrants the government ordinarily needs for searches of Americans. But they’re dramatically different from a conventional search warrant. A warrant is supposed to “particularly” describe who will be targeted by a search. It will typically include a suspect’s name, as well as the address to be searched or the phone number to be wiretapped.

The documents released by the Guardian don’t look like that at all. The first document is nine pages long and explains in some detail the factors the NSA uses to determine whether a potential surveillance target is a “US person”—if the answer is yes, then the agency cancels the planned surveillance. The second document, also nine pages, describes what the NSA does if it accidentally collects the private communications of Americans.

These documents look more like legislation than search warrants. They define legal concepts, describe legal standards to be applied and specify procedures for NSA officials to follow. For example, the second document states that “a person known to be an alien admitted for permanent residence loses status as a United States person if the person leaves the united States and is not in compliance with 8 USC § 1203 enabling re-entry into the United States.”
But rather than being drafted, debated and enacted by Congress, the documents were drafted by Obama administration lawyers and reviewed by the FISC.

Congress is much better equipped than the courts to review this kind of quasi-legislative proposal. It has thousands of staffers and can spend months debating the details of a proposal. Members have the power to call witnesses and to amend legislation if it’s not to their liking. And they debate in public, giving academics, public interest groups and members of the general public an opportunity to point out flaws and suggest improvements.

In contrast, the FISC has only 11 members and a limited staff. In most cases it hears testimony only from the government, and only in secret. It must make decisions within 30 days. In principle it has the power to modify proposed orders, but it lacks the manpower and expertise to exercise this power effectively. The FISC’s secretive review process leaves no meaningful opportunities for third parties to point out flaws in the government’s proposal and suggest alternatives.

And once the courts sign off on these general targeting procedures, no one outside the executive branch performs the function traditionally performed by the courts: double-checking that the government actually follows the rules. The government has some internal oversight mechanisms, but no one in the judicial branch verifies that the individuals the government targets for surveillance are actual foreigners, as the law requires.