AP Members Only #ReleaseTheMemo Wasn’t About Transparency But if Republicans are truly interested, let’s talk about the real threats to Americans’ civil liberties: Section 702 of FISA.

Ron Wyden is a U.S. senator representing Oregon.

As someone who has spent the past decade working to reform government surveillance and rein in unnecessary secrecy, the weekend furor over Rep. Devin Nunes’ laughable memo has been as disorienting as waking up in Wonderland.

Overnight, the very same people who just weeks ago passed a sprawling government surveillance law and scoffed at plans to protect Americans’ rights now profess the deepest concern for civil liberties. The same politicians who said there was no need to reform intelligence programs now attack the integrity of career law enforcement and intelligence officials.


What it comes down to is this: Representative Nunes and his partners in the White House are acting in mind-boggling bad faith. They talk of privacy, but selectively declassify information to smear career law enforcement officials and mislead the public. They talk of preserving the rule of law, but work hand in hand with this administration to undermine special counsel Robert Mueller’s investigation and obstruct justice.

Ultimately, #ReleaseTheMemo is the scenario civil rights advocates have warned about for so long: An administration and its congressional enablers are selectively releasing classified information to shield a corrupt administration from facing justice. What is so frustrating about this transparently bogus campaign is how it perverts legitimate concerns about overclassification and government surveillance that civil liberties advocates have fought so hard to bring to light.

In my 17 years on the Senate Intelligence Committee, I’ve heard plenty of warnings about risks to national security resulting from greater transparency. I’ve always listened to those warnings and always stuck to the classification rules. But there is no question that those rules have been abused, over and over again.

So, are the House Republicans who released this memo over the FBI’s objections part of a broader campaign for transparency, accountability and the constitutional rights of Americans? Hardly. If they were, they would not have spent years fighting tooth and nail against these very principles.

The allegations in the memo center around court-ordered warrants, which, while absolutely worthy of oversight, are the least controversial aspect of the Foreign Intelligence Surveillance Act. Much more concerning are those parts of FISA that authorize the government to spy on innocent Americans without any checks and balances at all.

Just a few weeks ago, Congress debated Section 702 of FISA, which allows the government to target foreigners without a warrant and then conduct warrantless searches for innocent Americans swept up in the surveillance. House Intelligence Committee Republicans fought reforms to Section 702 at every turn, including by opposing warrants for backdoor searches of Americans. They were particularly vociferous about any effort to require more transparency and accountability.

The same members of Congress who just revealed the specifics of a court-ordered wiretap opposed requiring the government to reveal even the general categories of people targeted without a warrant under Section 702. And the same members of Congress now calling for accountability resisted any effort to allow Americans to challenge warrantless surveillance. These weren’t reasoned arguments, either—House Intelligence Committee Republicans distributed flyers with pictures of spies and terrorists and bombs exploding and every other kind of misleading scare tactic we’ve come to associate with the most disingenuous enemies of reform.

But if the Nunes memo has changed any minds in the last few weeks, the door is still open for common ground in the fight for reform. And for that we’ll need some ground rules. The most important is the critically important distinction between sources and methods, which were revealed in the Nunes memo, and secret law.

Sources and methods are techniques related to collecting truly sensitive information, the kind of information that if it is revealed, will truly harm national security or cost American lives. The law on the other hand has to be public, because otherwise you can’t have an informed citizenship.

When Americans read the laws their representatives pass, they don’t expect to be lied to. So when the PATRIOT Act said that the government could collect communications that were “relevant” to an investigation and when government officials likened it to a grand jury, the public was shocked to learn that the law was secretly being used to collect the telephone records of millions of innocent Americans. That is why secret law is not only an affront to democracy, it undermines public trust in the government and, in particular, the intelligence community, the FBI and the Department of Justice.

Secret law can take many forms. It can be secret opinions issued by the Department of Justice, like the infamous torture memos. It can be secret FISA Court opinions, like the ones that approved the bulk collection of Americans’ telephone records. It can be a decision by some intelligence community lawyer. Often, only a tiny handful of members of Congress know. And the public is in the dark.

The problem of secret law continues to this day.

During the debate over Section 702, I asked the director of national intelligence whether this surveillance authority—which does not require a warrant—could be used to collect communications the government knows are entirely domestic. After a lot of back-and-forth, the DNI told me that the whole thing was classified. That’s not sources and methods. It’s about what the law does or doesn’t mean. Amazingly, Congress reauthorized Section 702 without the public ever getting an answer to this fundamental question.

Members of Congress with access to classified information can and must change tack. When we learn that the public is being misled with secret interpretations of the law, we must take these matters seriously. As representatives of the public and as members of a separate branch of government, we must, repeatedly and persistently, challenge those in the executive branch who reflexively resort to secrecy. And just as the corrosive problem of secret law has extended across Democratic and Republican administrations, members of Congress from both parties should acknowledge their responsibility to let in sunshine where it is most needed. Because, at the end of the day, the credibility of the U.S. Congress is also at stake.

For years, the leadership of the intelligence community has hidden secret law and rejected transparency. They have never been shy about expressing their views on these topics. Now they need to be asked directly: Did you oppose the release of the Nunes memo? Was the president wrong? Because if a partisan document describing the details of a secret court order can be released just to protect the president, then Americans have the right to know whether their laws and their Constitution are protecting them.

