In the wake of two newly published orders from the Foreign Intelligence Surveillance Court (FISC) by The Guardian, two American legislators have introduced a bill that would require the government to declassify FISC opinions that describe how the secret court has interpreted Section 215 of the PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Those two parts of federal law are the official legal justification as to why the government has the authority to engage in programs like the one the National Security Agency (NSA) has with Verizon (and presumably other telecom providers), as well as other related covert digital surveillance often conducted by the spy agency. The new bill in the house complements a similar bill introduced in the Senate last week.

"In order to have an informed public debate on the merits of these programs, it is important for the American people to know how such programs have been authorized, their limits and their scope," said Rep. Adam Schiff (D-CA) in a statement.

"Particularly now that the existence of these programs has been acknowledged, I believe there is much more that can be shared with the public about their legal basis," Schiff said. "It is my hope that this legislation will increase transparency and inform the national debate about the surveillance authorities provided to the Intelligence Community. I also believe that requiring additional disclosure would provide another valuable check on any potential expansion of surveillance under these authorities, whether by this or any future Administration.”

No one argues against the government at FISC

Established under the Foreign Intelligence Surveillance Act of 1978, the court’s mandate is to approve special surveillance warrants (FISA warrants) against suspected foreign agents to be used by American federal agencies, typically the NSA or the FBI. One of eleven judges who are tapped from existing posts in the federal circuit can then grant that warrant’s approval. In the court’s history, warrants (and related orders) are approved more than 99 percent of the time. The court’s publicly accessible docket is pretty short—in fact, the website didn't even exist until recently.

“I think one has to be disturbed to learn as we recently have that more than 1,800 applications and [around] more than 1,800 approvals have been made by the court,” Gary Hart, a former Colorado senator who sat on the Church Committee, told Ars. That select senatorial committee was created in the 1970s, and its recommendations paved the way for FISA and FISC.

“I would be a little more comfortable if there were more rejections,” he said.

“The glass half-full is that properly trained and qualified judges are hearing persuasive cases. But as a lawyer, this is not a typical judicial proceeding that we're familiar with, because there's no other side. Unlike virtually everything else [in the legal system,] it's not adversarial. The judge hears [the government’s case,] but there's nobody else to argue the other side. If you're a constitutionalist as I am, that's disturbing.”