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Senate Democrats Proposa FISA Court Reform


The NSA surveillance programs have raised questions about the balance between privacy and national security. Much of the debate has focused on something called the FISA court, named after the Foreign Intelligence Surveillance Act. It was this court that approved the NSA spying programs that have caused such a stir. This past week, a group of Democratic senators put out a plan to change how the court works. Senator Tom Udall of New Mexico is one of those lawmakers. He told me that the problem with the court is that it's secret.

SENATOR TOM UDALL: We have a situation where you have civil liberties in the Constitution and the right to privacy and counterbalancing that with national security. I think it's impossible in a way to have that kind of discussion if you have all of this secrecy surrounding the court rulings involving the Patriot Act and the Foreign Intelligence Surveillance Act.

MARTIN: So what are you proposing? Because the government would argue that the court is a secret because the information it is dealing with is highly sensitive, highly classified information. And revealing it or making that public would indeed jeopardize national security interests.

UDALL: Well, I think there are ways that we can work around that. For example, I think you could ask the court to tell us how you legally reason the conclusions you come to in your opinions, what are those opinions, taking out the national security data. That would allow the American people and all the legal scholars and law schools and people that are concerned about this to be involved in the discussion.

MARTIN: You and the other senators who have proposed these changes have also suggested making the court more, quote, "adversarial." Can you explain what that means?

UDALL: Oh, absolutely. First of all, everybody knows the hallmark of our system of justice in the United States is an adversarial system. For example, if we're talking in a criminal case, if you have the government trying to prove beyond a reasonable doubt that somebody's committed a crime, of course, Americans would say on the other side you're going to have an attorney that represents the person who's been charged. And so through that argument, we reach as close as we can to what we would call justice. So...

MARTIN: I'm sure, though, that judges who are appointed to the court would argue that that is exactly their job, is to weigh the arguments made by the government against privacy rights.

UDALL: I think judges always will acknowledge that they do a better job if they hear both sides. They're only hearing one side here.

MARTIN: Just so we're clear, do you have a problem with the NSA surveillance programs specifically or just the way they were approved by this court?

UDALL: I think what has happened, I was someone who voted against the Patriot Act. I thought this has huge potential for abuse. And what has happened is exactly what I thought would happen. We have seen rulings and we have seen actions taken that I believe are well beyond where we should be in terms of our Constitution.

MARTIN: Even after the changes you have proposed have occurred - if they were to be approved - the court would remain secret. I mean, are you convinced that the changes you're suggesting would have prevented these kinds of surveillance programs from moving forward in the first place?

UDALL: I think - this is always going to be something where we need to be vigilant. When it comes to our constitutional rights, you need to be looking at these kinds of things every day and evaluating where we are. So, I believe we've put something in these two pieces of legislation that can make a big difference in terms of putting forward the argument. Whether or not we come out in the right place, we're going to have to see.

MARTIN: Democrat Tom Udall, senator from New Mexico. Thank you so much for talking with us.

UDALL: Thank you, Rachel. Transcript provided by NPR, Copyright NPR.