The Tech Herald

Senators Wyden and Udall still fighting against Patriot Act secrecy

by Steve Ragan - Mar 19 2012, 21:55

Did a recent reversal of law offer freedom of speech to spammers? (IMG:J.Anderson)

For sometime now, U.S. Senators Wyden and Udall have fought the Obama Administration’s view that they can secretly interpret the Patriot Act, and they’re not the only ones. The New York Times and ACLU have pressed the issue, filing FOIA lawsuits in order to compel the release of information on how law is interpreted. Recently, the Justice Department has asked that the lawsuits be dismissed.

Senators Wyden and Udall are just two voices in a growing crowd who feel that the administration is taking an overly broad interpretation of the law. The problem is that no one knows if their views are correct, because intelligence officials have already stated that explaining their interpretation of the law would disclose classified information.

The New York Times and the ACLU are fighting to change this, but the Justice Department has recently filed to have their FOIA lawsuits dismissed. The suits themselves are seeking information on how the Patriot Act is interpreted by government, especially when it comes to section 215, or the business records provision.

Section 215 is in the spotlight because FISA (Foreign Intelligence Surveillance Act) courts have issued legal opinions on the section in secret. It’s a public statute, but how it is interpreted by the FISA courts, or anyone else in the government for that matter, is unknown. However, it’s clear that the section vastly expands the government’s power when it comes to intelligence collection.

While the government has given Congress details on their interpretation, the data was so highly classified that most Congressional members do not have anyone on staff with the clearance to read them.

In a letter sent to Attorney General Holder by Senators Wyden and Udall, this fact was highlighted, along with a note that if their colleagues were fully aware of the data, they would likely be “surprised and angry” to learn how the Patriot Act has been dealt with in secret. So would everyone else the letter says.

“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what they government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says,” the Senators wrote.

As mentioned, the Justice Department wants to have the pending lawsuits dismissed. They maintain that keeping the official interpretation of the law secret is a protective measure. If that information is made public, then adversaries would fully understand the limits and reach of law when it’s used by the various intelligence agencies. On top of this, in their dismissal request the Justice Department noted that it is the executive branch’s responsibility to determine the best way to protect the secrecy of intelligence sources and methods.

This true, but Wyden, Udall, and countless others feel that the executive branch has developed a habit of bypassing checks and balances. In other words, the letter states, when intelligence officials argue that something should stay secret, policy makers often seem to defer to them without carefully considering the same issue themselves.

“Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected...,” the letter adds.

“However, in a democratic society – in which the government derives its power from the consent of the people – citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to now how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don't think that government officials should be writing secret laws.”

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