DOJ: Secret Interpretation Of PATRIOT Act Just Like Grand Jury Subpoena If You Ignore 'Factual Context'

from the these-are-not-the-legal-interpretations-you're-looking-for dept

A couple months ago, Senators Ron Wyden and Marc Udall -- who have been banging the drum about the feds' secret interpretation of provisions of the PATRIOT Act -- asked the Justice Department to stop claiming it wasn't a secret law. The DOJ, in the form of Assistant Attorney General Ronald Weich, has responded (embedded below) and the response can be summarized as:

There is no secret law, it's just a classified interpretation of a public law.

As if that's any different? The DOJ defends all this by saying:

To be sure, the FISA Court opinions and orders relevant to the use of section 215 and many other intelligence collection authorities are classified. This is necessary because public disclosure of the activities they discuss would harm national security and impede effectiveness of the intelligence tools that Congress has authorized. This is true of many other intelligence activities that our government throughout its history has carried out in a classified manner in the interest of national security. Since it is not possible to disclose these activities to the public, Congress established the Senate and House intelligence committees to ensure that Congress is able to perform its proper oversight role on behalf of the American people.

Sounds nice, but it's actually ridiculous. No one is asking the DOJ to reveal its intelligence activities. They're asking it to reveal its secret interpretation of the law. Even if we grant the claim that activities should be classified, the interpretation of the law should never be secret.

The DOJ also claims that since the intelligence committees are briefed on its secret interpretation, and the PATRIOT Act extensions keep passing anyway, that's proof that Congress is fine with the secret interpretation. Of course, as Wyden has pointed out on the floor of the Senate in the past, the problem is that the vast majority of Congress has no idea how the DOJ is actually interpreting the law. They're basing the extensions on the plain reading of the law, and the obvious implication is that the DOJ is interpreting the law way beyond what the text appears to say.

Finally, at the end of the letter, Weich tries to suggest that the info the DOJ scoops up under the PATRIOT Act really isn't that different than what a federal prosecutor can get under a grand jury subpoena process, and in fact claims that the standard under the PATRIOT Act is higher, but then at the very end states that "the factual context" in which the PATRIOT Act is used may be different than "ordinary criminal matters." Uh, isn't that the whole point? The "factual context" is the difference between legal and illegal. Driving sober and driving drunk are analogous, other than the "factual context." Withdrawing cash from a bank and robbing a bank are analogous, other than the "factual context." Selling insurance and extorting payments are analogous, other than the "factual context." In other words, the "factual context" is pretty key here, as it's the entire difference between legal and illegal.

Is it any wonder that the DOJ wants to hide that factual context?

Filed Under: doj, factual context, interpretation, marc udall, patriot act, privacy, ron wyden, secret law