That's what David D. Cole, Jameel Jaffer and Theodore B. Olson want to know, and that's why they wrote the linked Op-Ed piece in the NYT. Well, they also wrote the piece so the rest of us would know they're asking that question, via a petition to the SCOTUS.
In case you're not familiar with these three legal musketeers, they're actually fairly prominent in the legal world:
Mr. Cole is the legal director of the American Civil Liberties Union. Mr. Jaffer is the executive director of the Knight First Amendment Institute at Columbia University and was a deputy legal director at the A.C.L.U. Mr. Olson was a solicitor general under President George W. Bush and is a member of the Knight Institute’s board.
What they're doing in their quixotic attempt to get to the bottom of exactly what the Foreign Intelligence Surveillance Court (FISC) is up to is this:
The three of us have different views about how expansive the government’s surveillance powers should be. One of us, as solicitor general of the United States, defended the broad authority granted to federal officials to track and intercept communications for law enforcement and intelligence-gathering purposes under the U.S.A. Patriot Act; the other two have been among that law’s most active critics.
But we agree about one crucial point: The needless secrecy surrounding the surveillance court is bad for the court, the intelligence agencies and the public — and it is also unconstitutional.
We said this to the Supreme Court in a petition filed in April on behalf of the American Civil Liberties Union, arguing that the public should have access to the surveillance court’s decisions. And in briefs filed with the Supreme Court last week, many others — including former intelligence officials, civil society groups and a major technology company — reinforced that point.
I happen to agree with the late Robert Bork (and others) that FISA is, in fact, unconstitutional. Our three legal heroes present the usual hagiographical version of what FISA was about:
Congress created the surveillance court in 1978 after a congressional committee found that the intelligence agencies had abused their surveillance powers in ways that violated Americans’ rights and jeopardized our democracy. The court was charged with overseeing certain kinds of surveillance conducted for national security purposes. In its original incarnation, its role was narrow. It authorized a few hundred wiretaps a year.
The fact is that FISA was a direct infringement by Congress upon the Executive's National Security powers. This infringement was done for purposes of political grandstanding and to get a whip hand over the president.
Things have changed a bit, since then. Since 9/11 the Deep State has gotten the whip back and is on steroids. Just ask Chuck Schumer--he'll tell you what the Deep State can do to its enemies. Those enemies can even include presidents, as we've learned. The fact is, if FISA were ever challenged and held to be unconstitutional we'd simply return to the status quo ante FISA--before Congress heroically stood up for our rights as citizens. The good old days, we're to believe.
However, to be clear, our three heroes are not arguing that FISA itself--the statute--is unconstitutional. They just want to be able to read more of the FISC's opinions than they're currently able to. Well, I suppose I'd like to, as well. Not that I imagine it will make much difference.
The reality is simply this. America is no longer a constitutional republic--at least not in any sense that would be recognizable to the Founding Fathers.
That was all pretty much laid to rest by the beginning of World War 2. The New Deal put paid to that, creating a centralized federal government that has only continued to grow in its powers vis a vis its subjects.
More to the FISA point, after the war the US--the only nation that had successfully prosecuted major wars on two fronts simultaneously--became ipso facto the American Empire. And so it remains. Up until 9/11 the two branches of the American Empire--foreign and domestic--remained (at least to most in-country observers) somewhat distinct. But with the GWOT the national security state and the administrative state with its domestic duties combined into an indissoluble unity. Ask yourselves--is there any significant part of the federal government that does not have some role in "national security"--which very much includes domestic security?
No world empire has ever run its affairs on the basis of transparency. There will always be some reason for the rulers to hide what's going on from the subjects--the public. Perhaps the FISC will publicly release a few more of its opinions, but sources and methods will always trump transparency.