Transpartisan Arguments the Government Won’t Want to Succeed

Justin Amash, Paul Broun, Tulsi Gabbard, Morgan Griffith, Rush Holt, Walter Jones, Barbara Lee, Zoe Lofgren, Thomas Massie, Tom McClintock, Eleanor Holmes Norton, Beto O’Rourke, Steve Pearce, Matt Salmon, Mark Sanford, Ted Yoho.

Well, that’s got to be a group of people the Powers That Be don’t want to see joining together?

Captain Tulsi Gabbard, Physics PhD Rush Holt, Appalachian Trail Hiker Mark Sanford, and Paleocon Walter Jones. With my libertarian Congressman, Justin Amash apparently leading the bunch.

All on a court motion together, calling for the court to release the FISC opinion explaining why the government’s Section 702 collection was unconstitutional because without it they can’t do their job. Which includes, in part, informing the American people.

As important, whatever information Members of Congress learn about secret FISC opinions and orders, they are unable publicly to discuss or debate them because any disclosure is still subject to secrecy requirements.


In light of recent disclosures regarding the existence of a “classified intelligence program,” related to the “business records” section of FISA, the Director of National Intelligence has acknowledged that “it is important for the American people to understand” the limits of the program and the principles behind it.


Notwithstanding the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA, even the amici — Members of the U.S. Congress — cannot meaningfully participate in that public debate so long as this Court’s relevant decisions and interpretations of law remain secret. They cannot engage in public discussion on the floor of the Senate and the House about the government’s surveillance programs. And they cannot engage in dialogue with their constituents on these pressing matters of public importance.


Informed, public debate is central to Congress’s role as a coequal branch of the federal government. The Constitution acknowledges the unique importance of open debate to Congress’s role in the Speech or Debate Clause. Debate in Congress serves no only the institution’s internal goal of creating sound public policy. Courts have recognized a second crucial purpose of informed, public debate in Congress: to inform the American people about the issues affecting their government.

Now, I think they may overestimate the degree to which this opinion pertains to the Section 215 collection (indeed, if it pertains to Internet metadata collection, it pertains to Section 214 of PATRIOT instead). [Update, 9/13/13: I’m mistaken here–it was exclusively Section 215.]

And I think their Speech or Debate argument has confused people about whether these members of Congress have seen what’s in the opinion. Holt used to be on the House Intelligence Committee, but no longer is, so I assume none of the Members on this brief know what the opinion is. In any case, the House has much more restrictive rules about who can access intelligence secrets than the Senate.

But I am rather fond of the argument that Congress can’t do its job with all the secrecy the Executive is operating under.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

7 replies
  1. [email protected] says:

    Why doesn’t Wyden the wimp or Udall the eunuch read what they know into the Congressional Record ?

    That’s what Mike Gravel did back in the days when men were men. Feinstein is certainly welcome to strut her stuff as well … just saying that outloud brings home the absurdity of the whole idea. In fact expecting any sort of courage or integrity from the Corporate Lawyers and Just Plain Goons ‘representing’ us is absurd.

  2. erichwwk says:

    The late Senator Daniel Patrick Moynihan’s chapter on “The Experience of WW II”, before the chapter on “The Bomb” in his book “Secrecy” ends:

    “By the 1960’s, it would be routine, for, say, the Johnson administration to give classified material to friendly journalists and Congress, and almost certainly to friendly governments as well. But in this instance as in much else, it appears that FDR was the first to scout out the new territory. The essential “strategic” fact was that the secrets were created by executive regulation, and thereafter executives would feel free to use them as they might” p. 134

    PS For those unfamiliar with the role of the bomb in establishing executive privilege and state secrets, try Garry Wills here:

  3. harpie says:

    Captain Tulsi Gabbard, Physics PhD Rush Holt, Appalachian Trail Hiker Mark Sanford, and Paleocon Walter Jones. With my libertarian Congressman, Justin Amash apparently leading the bunch.

    A small addition in my own mind:

    Barbara Lee, who “stood up on the floor of the Congress a mere three days after the 9/11 attack in order to cast the lone vote against the AUMF”

  4. C says:

    @[email protected]: I am curious about that myself although to be fair to them the cases are somewhat different. At the time Senator Gravel made the papers public it was not a felony to do so. For those who came in late he read them into the minutes of the Senate Subcommittee on Buildings and Grounds thus making the bulk of them public. He also helped to force an end to the Vietnam war by twice filibustering attempts to extend the draft.

    I suspect that Sens Wyden and Udall think that by working as they are they are acheiving more but I would not be surprised to see them face some very well-funded challengers in the next elections.

  5. Bill Michtom says:

    “it is important for the American people to understand” the limits of the program and the principles behind it.

    I’m thinking “no limits” and “no principles.”

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