President Barack Obama's response to the troubling news of indiscriminate government collection of communication information was meant to be reassuring: The NSA is operating under supervision by all three branches of government, he assured us.

Even if this were true -- and it is not -- this purported defense should make us more nervous, not less, because it suggests that Washington has become entirely comfortable with keeping basic information from the American public about what powers of surveillance the government claims it can lawfully use.

The secret court that apparently authorized this program operates nothing like the judicial branch contemplated by the Constitution as a check on abuses of governmental power and a neutral evaluator of whether governmental conduct complies with the Constitution. Its decisions are made in secret and not generally subject to appellate review. And there is no role built into the system for someone to counter the government's arguments.

As for the legislative branch, it's unclear how many in Congress understood the situation. In 2012, Sens. Ron Wyden, D-Ore., and Mark Udall, D-Colo., wrote to Attorney General Eric H. Holder Jr. about "the dangers of relying on secret interpretations" of the Patriot Act.


Advertisement

They warned that, because the documents outlining the administration's interpretations of the law were so highly classified, "we can state with confidence that most of our colleagues in the House and Senate are unfamiliar with these documents, and that many of them would be surprised and angry to learn how the Patriot Act has been interpreted in secret."

Moreover, because of rules governing classified information, members of Congress were strictly limited in what they could say publicly. Wyden and Udall, both members of the Senate Select Committee on Intelligence, grew increasingly worried about the government's interpretation and application of Section 215 of the Patriot Act, which greatly expanded the government's ability to collect information, but they could do no more than publicly hint at their concerns. As a result, their warnings went largely ignored by the public, which couldn't decipher them.

The debate we are now having about government surveillance -- to ensure that the government is complying with publicly enacted laws and acting in a manner consistent with American values -- has become possible only because of "unauthorized disclosures" to the media. Instead of calling for an investigation of whistle-blowers, we should be asking ask why government officials were not the ones to disclose freely how they interpreted and applied the Patriot Act.

It is scandalous that the president didn't see the need for the debate earlier and bring it to the public's attention himself. If the president truly welcomes this debate about surveillance, as he has now indicated, he will make sure Americans have the information they need to meaningfully engage in the discussion. He should start by releasing the government's secret interpretation of Section 215 of the Patriot Act.

Hector Villagra is executive director of the ACLU of Southern California.