The FISA court's secret opinions authorized the surveillance programs that have gotten so much attention of late. The current system has effectively led to the creation of a body of secret law, crafted by appointed judges, that permits the government to vacuum up a massive amount of personal data about private citizens without violating the Fourth Amendment.
As The New York Times recently reported: "All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents."
In an e-mail to me, Schiff said: "Given the breadth of the FISA court opinions and their virtual unreview-ability, the selection of FISA judges should be subject to nomination and confirmation, and not left to the sole discretion of the Chief Justice."
A few lawmakers have advanced ideas to address the secrecy surrounding the FISA court. An effort supported by more than a dozen senators would compel declassification of the key FISA court opinions authorizing surveillance; there is a companion measure on the House side. An effort being pushed by Sen. Richard Blumenthal, D-Conn., would bring transparency to the court by, among other things, providing for a privacy advocate to argue on the public's behalf. This would prevent decision-making from occurring only with input from the government.
Unfortunately, none of these efforts has gotten much ink. For all the reporting on the surveillance programs, next to no attention has been given to the various policy changes that would pierce the secrecy surrounding the programs' legal rationales an aspect that everyone should agree is problematic, no matter what people think of the programs themselves.
"Congress has the opportunity to increase transparency and make real reforms to the FISA court," Schiff told me. "This must not be lost in the crush of media attention that has accompanied (Edward) Snowden's encampment in a Moscow airport."
Congressional support for the surveillance programs is widespread. But is the support for the secrecy shrouding them all that widespread? That's less clear.
Some Democratic leaders are now on record supporting declassification of the FISA court's opinions, and President Obama has allowed that concerns about this secrecy are legit.
So you'd think these efforts would merit a bit more attention.