Wyden, Udall Blow Whistle on Patriot Act Abuse

Civil libertarians have blasted the Obama administration for a long time for refusing to release publicly their legal interpretation of the Patriot Act. The ACLU has sued to get the document but the DOJ has argued in court that doing so would cause terrible harm to national security. Now two of the more civil libertarian members of the Senate Intelligence Committee are telling us that the document gives the executive branch unprecedented powers.

For more than two years, a handful of Democrats on the Senate intelligence committee have warned that the government is secretly interpreting its surveillance powers under the Patriot Act in a way that would be alarming if the public — or even others in Congress — knew about it.

On Thursday, two of those senators — Ron Wyden of Oregon and Mark Udall of Colorado — went further. They said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained.

The senators, who also said that Americans would be “stunned” to know what the government thought the Patriot Act allowed it to do, made their remarks in a letter to Attorney General Eric H. Holder Jr. after a Justice Department official last month told a judge that disclosing anything about the program “could be expected to cause exceptionally grave damage to the national security of the United States.” …

The senators wrote that it was appropriate to keep specific operations secret. But, they said, the government in a democracy must act within publicly understood law so that voters “can ratify or reject decisions made on their behalf” — even if that “obligation to be transparent with the public” creates other challenges.

“We would also note that in recent months we have grown increasingly skeptical about the actual value of the ‘intelligence collection operation,’ ” they added. “This has come as a surprise to us, as we were initially inclined to take the executive branch’s assertions about the importance of this ‘operation’ at face value.”

The dispute centers on what the government thinks it is allowed to do under Section 215 of the Patriot Act, under which agents may obtain a secret order from the Foreign Intelligence Surveillance Court allowing them to get access to any “tangible things” — like business records — that are deemed “relevant” to a terrorism or espionage investigation.

There appears to be both an ordinary use for Section 215 orders — akin to using a grand jury subpoena to get specific information in a traditional criminal investigation — and a separate, classified intelligence collection activity that also relies upon them.

The interpretation of Section 215 that authorizes this secret surveillance operation is apparently not obvious from a plain text reading of the provision, and was developed through a series of classified rulings by the Foreign Intelligence Surveillance Court.

The letter from Mr. Wyden and Mr. Udall also complained that while the Obama administration told Congress in August 2009 that it would establish “a regular process for reviewing, redacting and releasing significant opinions” of the court, since then “not a single redacted opinion has been released.”

You can read the full letter here. Anyone who is at all surprised by this clearly hasn’t been paying attention. But there’s nothing Wyden and Udall can do about this because the leadership of their own party is absolutely complicit in those abuses. Diane Feinstein, who chairs that committee, has a terrible record on civil liberties, and Harry Reid has done anything the administration has demanded on these issues.

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  • D. C. Sessions

    So what happens if a member of Congress releases “secret laws” to the public? You’re on a collision course between Congressional immunity and an Administrative policy of secrecy that doesn’t seem to be backed by any actual statute.

    Does the Member of Congress just suddenly disappear, with all inquiries answered by invocation of the State Secret Privilege?

  • slc1

    Once again, this is a failure of the other two branches of government to rein in the executive. As long as the courts and the Congress shirk their responsibilities, it doesn’t make an iota of difference who gets elected president, relative to civil liberties. The executive will expand to fill the vacuum left by the other two branches.

  • The Lorax

    Maybe we need a new amendment to the Constitution; all citizens have a constitutional right to know exactly what policies the government has in place, so that the citizens can decide whether or not they approve of it.

    Power to the people.

  • gshelley

    I can’t see that first link.

    Is the executive actually arguing that not only do they not have to show the courts they are following the law, they don’t even have to let anyone know what they think the law allows them to do?

    I can see that there is an argument that secret operations should be kept secret, but how can they possibly argue that the law itself is a secret?

  • D. C. Sessions

    Maybe we need a new amendment to the Constitution

    While we’re at it, maybe we could add one guaranteeing the right of Habeas Corpus.

  • cottonnero

    Dianne, not Diane.

  • The only way to keep power from corrupting is to keep it secret.