A nation of secret laws?

There’s more potentially good news in the battle to ensure open government when it comes to the judiciary.

As a Nevada Supreme Court commission begins to take steps to reverse a dangerous trend that has seen more and more state judicial cases sealed from public view, a federal court has also given indications that it believes openness must be the proper default setting.

On Friday, the American Civil Liberties Union announced that a secret government court in Washington, D.C., has ordered the Bush administration to respond to arguments that its rulings which approved the National Security Agency’s domestic wiretap program should be made public.

The ACLU made the request, arguing that the expansiveness of the program warranted that the public be given a modicum of information about its approval.

“This is an unprecedented request that warrants further briefing,” wrote U.S. District Judge Colleen Kollar-Kotelly in ordering the Bush administration to respond to arguments by the end of the month. Judge Kollar-Kotelly serves as the Foreign Intelligence Surveillance Court’s presiding judge.

While there are many skeptics who argue the ACLU will ultimately still fail to pry loose the information it seeks, the fact that the court didn’t dismiss its request out of hand is seen as progress.

“We’re extremely encouraged by today’s development because it means that, at long last, the government will be required to defend its contention that the orders should not be released,” the ACLU said in a written statement.

Contrary to the perception created by many Bush administration critics, the secret court isn’t the creation of the current president. It’s been around since 1978 — brought to you by Democratic President Jimmy Carter and a Democratic Congress. It is responsible for reviewing cases in which the government seeks to secretly spy on someone within the United States.

“Its rulings generally are made in complete secrecy, because the government presents classified information in its warrant applications,” The Baltimore Sun reported. But the ACLU argued that the court’s approval of the Bush administration’s “Terrorist Surveillance Program” was far more broad than just the approval of a single secret warrant and thus merited some limited public disclosure.

According to The Washington Post, the secret court has made a ruling public only once in its 29-year history.

“The order is unusual, and the request is also unusual,” David B. Rivkin Jr., a former Justice Department officials with the Reagan administration told the Post. “But I would be amazed if that request were granted in the end.”

The Bush administration is expected to vigorously oppose the ACLU’s motion. But why? Any disclosure of the court’s ruling would not include classified information. It would simply give Americans a better sense of the ongoing debate over our anti-terrorism policies.

“We’re not a country of secret laws,” Suzanne Spaulding, a former CIA counsel, told the Baltimore Sun.

Indeed. At the very least, the secret court’s willingness to entertain the ACLU’s request indicates that the burden the government must meet in order to keep its operations secret may becoming more stringent.

And that’s good.