"Trust us" will never be good enough. Not when accused are not able to know the charges against them. Not when you can be held indefinitely without judicial recourse. Not when prosecutors demand ludicrous sentences for accessing a public API. Not when the executive has the apparently legal ability to assassinate opponents without oversight.
No. Sorry, there can be no trust in such an arrangement. You want trust? Don't have secret courts.
What's even their reasoning for having the Court secret? That terrorists will threaten them or attack them? Come on, that has the be the fear every single judge has to live with, and I think a normal judge who has to decide on a drug lord's case has a lot more to fear than some random terrorists, just because they agree to letting the NSA spying on everyone.
I think being secret has a lot more to do with them being able to abuse the laws, and not letting the public know about it. There's no good reason to keep the FISA Court secret.
The court was created during the cold war. It has basically been repurposed for the war on terror. The original foe had sophisticated intelligence agencies and keeping the rulings secret was at least a plausible argument in the spy-vs-spy mindset of the era.
But the war on terror involves a handful of college kids and peasants. They don't have anything more than the ability to do google searches. Joe Paranoid doesn't need confirmation from guys like Snowden, he just assumes the worst and goes from there.
The massive secrecy around the war on terror (there are now over 4 million active clearances, nearly 1.5 top-secret clearances, that's twice the population of DC) is an artifact of the cold-war regulations that provides little to no tactical advantage but practically eliminate oversight.
> there are now over 4 million active clearances, nearly 1.5 top-secret clearances, that's twice the population of DC
Clearances simply represent that someone was screened for access to national security information within the past 5/10/15 years. They are not all actively in use, and due to compartmentalization even the active ones do not mean that they are actually doing work that involves national security.
For instance, the cook on a submarine? He has a SECRET clearance since he may come across information of that classification in the course of his duties, but frying eggs and standing "sump" watch does not mean he is personally oppressing the populace. :P
Likewise, merely having a clearance doesn't eliminate oversight. That depends entirely on the job being done, and in any event has a simple answer: Just give whoever is providing oversight equivalent clearances.
Now, you might be thinking that means the whole public can't provide oversight that way, and you'd be right. But remember the division of responsibility rule: If everyone is responsible for providing oversight on something, then no one is responsible for oversight. It's easy for evil to lurk in plain sight when everyone thinks that someone else is responsible for spotting it.
Yes, that is correct, there are a small number of people who have clearances purely for mechanical reasons, like janitors and such. However, it is useful to recognize that the total number of clearances is at roughly the same level as at the peak of the cold war. When the enemy was entire countries, not a few thousand guys living in caves.
RE: secrecy
I was referring to the FISA court's secrecy being an artifact of the cold war, not the secrecy every single classified program. There is no reason beyond inertia and the ease that comes with lack of accountability for the FISA court to be so secretive. However, I am stunned by the leap of logic it requires to say that public knowledge results in no oversight.
Please don't be the guy who hides behind literalist excuses.
The intent is clear - to reference the "division of responsibility rule" in this context and then deny the obvious intent is disingenuous. "I didn't say public knowledge results in no oversight, I was just randomly pointing out that if everyone is responsible than no one is responsible. Just throwing that out there, your conclusions are your own."
The "obvious intent" is to reinforce the idea that oversight is a function like any other business process and there should be organizations whose actual responsibility is to handle that function.
That doesn't have to mean another government office, it can mean something like the EFF, ACLU, or some other non-profit dedicated to performing that function on behalf of the people.
Simply making the glass transparent has no value if no one looks through it. If we as people don't setup some form of oversight or advocacy (and just wait for someone else to do it) then it doesn't matter how transparent the government is.
No. Sorry, there can be no trust in such an arrangement. You want trust? Don't have secret courts.