Senators Wyden & Udall To DOJ: Stop Saying Patriot Act Isn't A Secret Law When You Know It Is
from the will-it-matter? dept
Senators Ron Wyden and Mark Udall have been pressing the feds for a while now concerning their secret interpretation of the Patriot Act, which appears to go way, way, way beyond what most in the public believe on simply reading the bill. While the two Senators had put forth an Amendment to explain these secret interpretations when certain provisions of the Patriot Act were up for renewal, they eventually dropped the Amendment in exchange for some other concessions, and a promise that hearings would be held on the issue. Since then, the Senators have continued to press the feds on this issue at every opportunity, leading to quite a lot of doublespeak from the feds.The latest development is that the two Senators have sent a letter to Attorney General Eric Holder, saying that Justice Department representatives are clearly misleading the public about the interpretation of the law. Basically, they say that there's a classified ruling about the interpretation of the law, which some in the government (including Wyden, Udall and Holder) are clearly aware of, but which likely interprets the law vastly differently than most in the public would. And the statements from the Justice Department improperly imply that the details surrounding the law are publicly known -- when they are not.
Shorter version: There's a secret court ruling out there that says the government can spy on a ton of people under the Patriot Act, even though the text of the law seems to suggest otherwise. And the Justice Department is implying that the text of the law is an accurate representation of what the law actually is -- when the secret court ruling seems to say otherwise.
While we are sure that you would agree that government officials should not describe government authorities in a way that misleads the public, during your tenure Justice Department officials have -- on a number of occasions -- made what we believe are misleading statements pertaining to the government's interpretation of surveillance law.Separately, they note that when the truth comes out, the government is going to be severely embarrassed:
The first set of statements that concern us are the repeated claims by Justice Department officials that the government's authority to obtain business records or other 'tangible things' under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena. This comparison -- which we consider highly misleading -- has been made by Justice Department officials on multiple occasions, including in testimony before Congress. As you know, Section 215 authorities are not interpreted the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are "analogous" they provide the public with a false understanding of how surveillance law is interpreted in practice.
More recently, we were troubled to learn that a Justice Department spokesman state that "Section 215 [of the Patriot Act] is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department." This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions -- and the legal interpretations they contain -- continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law.
Americans will eventually and inevitably come to learn about the gap that currently exists between the public's understanding of government surveillance authorities and the official, classified interpretation of these authorities. We believe the best way to avoid a negative public reaction and an erosion in confidence in US intelligence agencies is to initiate an informed public debate about these authorities today.
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Filed Under: eric holder, fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate
Reader Comments
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Eventually? How about we know there is a gap already.
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Moot point.
Need warrant for spying? Simply ignore the need and go ahead and spy.
Are you arabic and muslim? You're definitely a probable terrorist who needs to be watched and there is no need for any warrants or other such silly judicial games.
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America is over
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Double secret probation
So in other words we no longer have the rule of law, but instead the word of the king is the law. When the citizens no longer are allowed to know the laws of their country until they run afoul of them and then still aren't told what they did wrong (Puerto80), we truly are in danger of becoming a police state.
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Re: Double secret probation
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Re: Double secret probation
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Wyden, Udall
Seriously, are you loyal to your oath to the Constitution or not?
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Re: Wyden, Udall
They'd probably make decent martyrs, but I think we're better off in the long run with them in their current position.
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Re: Wyden, Udall
Personally, I would prefer that he be able to stay to continue to do what he's doing. His statements on this have done more to bring sunlight to the issue for more people than if he had just spilled the beans outright and then been disappeared from public view. If he did what you wanted, then sure -- a small percentage of people would have the full truth. And the vast majority would write off that truth as nutbaggery only believed by nutbags.
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What am I missing?
By inquiring after this "interpretation", we give it legitimacy, we imply that it has weight. If I had the power of a Senator, I wouldn't be trying to get the Department of Justice to go public with its secret "interpretation" of the law; I'd be investigating whether any agent of the DoJ had broken the law (the actual law, not the "Simon Says" version), and if so, typing up some indictments, clearing the court calendar and airing out a couple of prison cells.
"Don't worry about it, your Honor, we have our own interpretation of the law that says that what we did was totally fine." Can you imagine what a judge would say to that?
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Re: What am I missing?
The problem with that is that from the article it mentions that a FISA Court is the source of the interpretation.
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Too bad Mike falls for it every time.
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I rather suspect that his issues simply differ from yours, or that you disagree with his positions. Which is fair, but doesn't make him a grandstander.
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Don't we get it?
Now, the intertubes have broken that paradigm and the only "solution" that the US Govt can come up with is a grand deal called the "patriot act".
This has been thrust upon us in the name of "security" and keeping our children "safe" from the terrorists. Please.
Bad news is, an election probably won't fix this.
Oh, good news too: Well, I lied. No good news.
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Don't we get it?
Now, the intertubes have broken that paradigm and the only "solution" that the US Govt can come up with is a grand deal called the "patriot act".
This has been thrust upon us in the name of "security" and keeping our children "safe" from the terrorists. Please.
Bad news is, an election probably won't fix this.
Oh, good news too: Well, I lied. No good news.
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So think about how Wyden is on the Intelligence committee and Demint is on the Finance committee. They probably won't talk to each other about copyright issues until it's on a full scale vote. Even then, there probably will be little time to debate. So you have to wonder how informed these people truly are concerning the issues they vote on.
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Religious fundamentalists (of ANY religion) are the problem, not the religion itself. But go on, keep believing that Islam is the problem without having even trying to think for yourself. All you do is prove the old adage "better to keep your mouth closed and have everyone think your a fool, than to open it and prove them correct."
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Legislative Intent
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Re: Legislative Intent
The courts, even the supreme court, are not required to follow legislative intent as such. The three branches of government are supposed to be equal in power, each supreme in their own domain, and so the courts often try to discern what the legislative intent was when deciding whether or not the law is being adhered to as a matter of good government and deference to the co-equal branches. The supreme court is a little different in that it primarily determines the constitutionality of laws or the enforcement of laws. If the legislative intent is contrary to the Constitution, then the supreme court absolutely can and should go against it.
Yes. It's not necessarily right (although sometimes is), but it's been common for as long as we've had a government. The deal is that the executive branch has supreme authority about how to enact the laws. This can give quite a lot of leeway for being technically correct even when the implementation of the law results in something clearly different than the intent.
Also, how do we know that in this case the executive is doing anything counter to the intent? I don't know what congress's true intent was. Do you?
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Sign the Petition to End the Patriot Act
The Patriot Act needs to go.
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Sign the Petition to End the Patriot Act
The Patriot Act needs to go.
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Terrorists?
I find it interesting that "Islamic terrorists" are where all the focus is - yet the financial terrorists have brought the world to ruin and no one, absolutely no one, wants to focus on them? Not one arrest for those bastards who have wrought such suffering on many.
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Wyden
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