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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

Thu, Sep 22nd 2011 4:00pm — Mike Masnick

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.

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.

Separately, they note that when the truth comes out, the government is going to be severely embarrassed:

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

39 Comments

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Pixelation, 22 Sep 2011 @ 4:25pm

"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."

Eventually? How about we know there is a gap already.
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Thomas (profile), 22 Sep 2011 @ 4:52pm

Moot point.
It really doesn't matter what the law says or what people the DOJ says; the government will ignore any provision of any law in order to do whatever they feel like.

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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Anonymous Coward, 22 Sep 2011 @ 5:12pm

America is over
Seriously... secret courts? Secret rulings? We no longer have a democracy... Due process is no longer possible
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DOlz (profile), 22 Sep 2011 @ 5:20pm

Double secret probation
"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."

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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DCX2, 22 Sep 2011 @ 5:37pm

Re:
We know there is a gap between the public's understanding of a law and it's interpretation, in much the same way that we knew the government was listening to our conversations without warrants before December 16, 2005.
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blaktron (profile), 22 Sep 2011 @ 5:54pm

Re:
Not only that, but the methods used are clearly being used to spy on foreign nationals in their own countries that happen to access American resources. This is a huge violation of a number of trade treaties, but if the US Fed wants it.......
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Anonymous Coward, 22 Sep 2011 @ 5:59pm

Well, there was a declaratory judgement by the exec. branch sometime back that declared that "...all internet traffic is inherently international in nature...." Since the NSA is legally charged to listen to ONLY international traffic, that means they can now listen to pretty much anything across the US, including all those troublesome VoIP calls. How that for interpretation?
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PRMan, 22 Sep 2011 @ 6:01pm

Re: Double secret probation
In danger?
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Anonymous Coward, 22 Sep 2011 @ 6:32pm

Re:
How can da internets be international in nature to allow wiretapping without a warrant but local enough to apply CA sales tax to Amazon purchases?
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Rob, 22 Sep 2011 @ 7:12pm

Wyden, Udall
OK Wyden and Udall. Man up. Grow some stones. Find your cajones. Whatever you need to call it -- fucking tell us what you know. Spill your guts. Don't just go around saying you know something -- tell it, dammit!

Seriously, are you loyal to your oath to the Constitution or not?
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Anonymous Coward, 22 Sep 2011 @ 7:41pm

Re: Wyden, Udall
They're pushing it already. You know what happens to people who inform the public about government corruption...
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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Beta (profile), 22 Sep 2011 @ 8:42pm

What am I missing?
There are times when I get the feeling that I am fundamentally, neurologically different from most of the public.

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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Anonymous Coward, 22 Sep 2011 @ 8:51pm

Ron Wyden takes grand standing to a whole new level. If you can't see him as the slimy politico that he is, you really missed the boat. All of this yelling and screaming isn't to solve the issues, it's seems mostly intended to get him press.

Too bad Mike falls for it every time.
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Larry, 22 Sep 2011 @ 9:25pm

Don't we get it?
For decades, the CIA's turf was outside the US border and communications outside of that border. FBI = inside.

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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Larry, 22 Sep 2011 @ 9:25pm

Don't we get it?
For decades, the CIA's turf was outside the US border and communications outside of that border. FBI = inside.

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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Jay (profile), 22 Sep 2011 @ 10:42pm

Re:
And Wyden's grandstanding how...?
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The eejit (profile), 22 Sep 2011 @ 11:08pm

Re: Double secret probation
And we all know what happened to France when that happened...maybe we'll get a more humane execution tool than the guillotine.
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LyleD, 22 Sep 2011 @ 11:18pm

Re:
wow, that's some stretch...
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Aerilus, 23 Sep 2011 @ 12:53am

these two senators make me wonder what the rest of our elected officials seem to be doing besides sitting on their butts and keeping quiet. this is what elected representatives are supposed to do: go out and stir things up, ask questions, and fight for the people. I get the feeling that the rest of congress and the senate think that actually doing something is too much effort and are just waiting till they can retire into there industry "government advisory" jobs.
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Jay (profile), 23 Sep 2011 @ 1:18am

Re:
I'd probably say it's more to do with divide and conquer. Nothing conspiratorial, but think about how each Senator is given committee assignments. Nothing is ever done with all members present. So the committees maintain individual influence over certain things until it comes to a vote.

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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Wolfy, 23 Sep 2011 @ 3:43am

When it comes down to it, islam is a vastly more violent religion than christianity. Given that religion is the most common motivation for terror, and that religion is a form of mental illness, I want these crazies kept under watch. But the Gov't. should NOT be in the business of lying to it's population.
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Josh in CharlotteNC (profile), 23 Sep 2011 @ 4:09am

Re: What am I missing?
Can you imagine what a judge would say to that?

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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lucidrenegade (profile), 23 Sep 2011 @ 6:03am

Re: Re: Double secret probation
Oh crap. Here come the US Marshals again.
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Anonymous Coward, 23 Sep 2011 @ 6:18am

Re: Re:
He just generally seems to jump in front of any hot button issue and tries to act like he can stop the tide. It's not about getting anything done, it's about getting his name in the news, it seems to me.
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Anonymous Anonymous Coward, 23 Sep 2011 @ 7:23am

Legislative Intent
Whatever happened to legislative intent? I have read about the supreme court arguing about legislative intent. Aren't all the 'sub' courts required to follow legislative intent? Is it normal practice for the Executive to re-interpret congresses intent?
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Jay (profile), 23 Sep 2011 @ 10:04am

Re: Re: Re:
As compared to Leahy, Franken, or any of his peers...?
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John Fenderson (profile), 23 Sep 2011 @ 10:39am

Re: Wyden, Udall
Wyden's my senator, and he's one of the rare ones who is more than 50% good. If he were to spill the beans outright, it would mean that he'd lose his position on important committees such as the one that lets him be aware of this stuff in the first place. His replacement almost certainly would be one of the very bad senators.

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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ClarkeyBalboa (profile), 23 Sep 2011 @ 10:44am

Re: Re: Double secret probation
Mike is always advocating the importance of good execution, but i don't think we're talking about the same thing.
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John Fenderson (profile), 23 Sep 2011 @ 10:44am

Re: Re: Re:
Actually, he does this far less than most. He has a core set of issues that he cares about and on those, he is very loud and public. Unlike grandstanders, though, he doesn't shift to contradictory issues because that will get him press, and he doesn't tend to shout loudly about just anything that happens to be the hot topic. (Not to say he never does -- he is a politician, after all -- but he does it far less than average).

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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John Fenderson (profile), 23 Sep 2011 @ 12:11pm

Re: Legislative Intent
I have read about the supreme court arguing about legislative intent. Aren't all the 'sub' courts required to follow 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.

Is it normal practice for the Executive to re-interpret congresses intent?

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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The eejit (profile), 23 Sep 2011 @ 1:33pm

Re: Re: Re: Double secret probation
Hey, I'm just pointing out the parallels between the circumstances now and the circumstances then.
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Anonymous Coward, 23 Sep 2011 @ 6:03pm

Re:
You've really stepped up the irony today.
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CypherDragon (profile), 24 Sep 2011 @ 1:24pm

Re:
Never heard of the Crusades then? The Spanish Inquisition? The complete and total elimination of the Greco/Roman religion? How about the Salem witch hunts? Those happened here in the grand old USofA and not that long ago, historically speaking. If not, I would suggest you educate yourself...Christianity's history is littered with violence, conquest, terrorism, greed, etc. etc...

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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Elizabeth Conley, 24 Sep 2011 @ 6:43pm

Sign the Petition to End the Patriot Act
https://wwws.whitehouse.gov/petitions#!/petition/end-patriot-act/nH20qwfr

The Patriot Act needs to go.
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Elizabeth Conley, 24 Sep 2011 @ 6:43pm

Sign the Petition to End the Patriot Act
https://wwws.whitehouse.gov/petitions#!/petition/end-patriot-act/nH20qwfr

The Patriot Act needs to go.
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Aerilus, 24 Sep 2011 @ 8:51pm

Re: Re:
I don't think so, Most discussion and decisions do not happen on the floor of the house or the senate. that is just an area for grand-standing and making the opposite party look bad, go watch cspan, first notice all the empty chairs, then notice all the grand speeches and finger pointing, by the time a representative arrives to the floor their decision has already been made and discussed thoroughly, I would think that all of the representatives and senators would have roughly the same clearance. I could be wrong though and could discuss pretty much any issue with each other
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T, 26 Sep 2011 @ 3:50am

Terrorists?
CypherDragon, thank you for your comment - it warms my heart (as A Muslim) to see that people are looking beyond the foolishness of the media.

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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F, 10 Oct 2011 @ 7:50pm

Wyden
Wyden is my Senator as well. He is awesome, which is very unusual for a Congressman.
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kilfridg, 29 Jun 2012 @ 2:31pm

Re: Double secret probation
Yes, but thank God King "W" (Bush) who inacted the (un) patriot act is no longer in office. But instead learning how to read english in Texas.
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