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.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+1Email to someone

7 Responses to Transpartisan Arguments the Government Won’t Want to Succeed

Emptywheel Twitterverse
bmaz @IlyaSomin @APribetic I love you law guys. So serious!
JimWhiteGNV RT @DionNissenbaum: Full statement from @MSF on US military investigation of Afghanistan attack that inaccurately targeted hospital: https:…
JimWhiteGNV @goldietaylor Wow. Mind blown. Will have to do that soon.
emptywheel How can you have Green Bean Poutine for Thanksgiving? Doesn't Canada still have the Queen on their money?
JimWhiteGNV @goldietaylor Wait. My Mom always served hers cold. Do you eat it warm or room temp?
emptywheel @JimWhiteGNV Maybe I'll Tandoori 13 of my enormous bird, which will still leave me more bird than I planned on baconning. . . . . . . Nah.
emptywheel RT @ModFarm: It wasn't on the first #Thanksgiving table. So, why is #cranberry sauce a turkey-day staple? https://t…
emptywheel @HuyTDo I'm sure they were. Point being Paris terrorists didn't avail themselves of Snowden revelations for OpSec tips @matthew_d_green
bmaz @ZoeTillman Restrepo??
bmaz @dmataconis Exactly, Candy! Does nobody else remember this??
bmaz @jaketapper Happy Thanksgiving Mr. Tapper.
July 2013
« Jun   Aug »