Democratic Senators Issue Strong Warning About Patriot Act

For more than two years, several Democrats on the Senate intelligence committee have warned that the federal government has been secretly overstepping its bounds when interpreting the surveillance power granted to it under the Patriot Act. In fact some have stated that the American public, or even others in Congress, would be alarmed if they knew about it.

On Thursday, two of those senators, Ron Wyden of Oregon and Mark Udall of Colorado, took their warnings even further. They said a top-secret intelligence operation, based on that secret legal theory, that executive branch officials have claimed is crucial to national security is not actually all that crucial at all.

The senators, who also said that Americans would be “stunned” to know what the government believes the Patriot Act allows 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 Justice Department believes that any disclosure of information regarding its interpretation of the Patriot Act could alert enemies of the state to the methods used by the government to collect certain intelligence.

The Dept. is also seeking to have two Freedom of Information Act lawsuits dismissed. The suits were filed by The New York Times and the American Civil Liberties Union. They are related to how the Patriot Act is being interpreted.

The senators agree that certain operations must be kept secret. However they also said that 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 revolves around 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” such as business records that are deemed “relevant” to a terrorism or espionage investigation.

There appears to be both an ordinary use for Section 215 orders, like 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 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.”

Obama administration looking to circumvent Freedom of Information Act

President Obama promised on the campaign trail that his administration would make a dedicated commitment to transparency, but so far his presidency has done the exact opposite.

For one he said his attempt to reform healthcare for the American people would be debated on C-Span, but what eventually became to be known as the Healthcare Affordability Act was in fact written behind closed doors by healthcare insurance and pharmaceutical insiders. He has invoked the “state secrets” privilege to derail litigation about government misdeeds in the war on terror just like the previous republican administration. He has refused to release his secret interpretation of the Patriot Act, which led Democratic Senator and member of the Intelligence Committee Ron Wyden to say:

“I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,”

The Obama administration has also blocked the release of photographs documenting the abuse of prisoners by U.S. service members. All of that pales in comparison though to the administration’s latest attempt to hide their actions from public scrutiny. The Justice Dept. recently proposed to allow government agencies to lie about the existence of documents being sought under the Freedom of Information Act, or FOIA.

The way the law works currently is that if the government doesn’t want to admit the existence of a document it believes to be exempt from FOIA, it may advise the person making the request that it can neither confirm nor deny the document’s existence. Under the new proposed regulation, an agency that withholds a document “will respond to the request as if the excluded records did not exist.” This would basically make FOIA completely irrelevant as government agencies would be able to outright lie to U.S. citizens about the existence of documents.

The Freedom of Information Act doesn’t provide a blanket right to public access to government documents. It’s reasonable to have exceptions for certain classified national security or foreign policy documents if their release would damage American interests. It is also reasonable that documents that fall into that category be subject to review by the courts, but it is completely unacceptable as well as undemocratic to just lie about their existence. Change? Without a doubt, change for the worse.

Congress to extend Patriot Act…

The “Patriot Act”, passed a month after the September 11th terror attacks on the Twin Towers and Pentagon, has been a controversial issue often criticized by civil libertarian members of both the Republican and Democratic parties as an assault on American rights and freedoms. Congress has reached a deal to extend three key parts of the bill that were soon set to expire and progressives can forget about their bi-partisan happy president doing anything about it.

The three parts being extended are the lone wolf, roving wiretaps and  business records or “tangible things” provisions. The lone wolf provision allows for a change to the definition of an agent of a foreign power under the Foreign Intelligence Surveillance Act (FISA). FISA is a special framework for gathering foreign intelligence in the U.S. It has always been limited to persons with links to foreign governments. Under lone wolf FISA can be used against people who do not have ties to any foreign group. Roving wiretaps allow law enforcement to expand warrants to cover all means of communication, i.e. pay phones, without authorities having to go back to a judge for permission or identifying the intended target by name. The business records or “tangible things” provision also known as Section 215 allows investigators to obtain an order from the FISA court permitting them to compel the production of any tangible item deemed relevant to an investigation. Any record or other thing that can be tied to a suspected agent of a foreign power or someone in contact with them is considered to be “presumptively relevant.” Judges have no discretion to deny these type of requests. The records don’t even have to belong to anyone who is thought to be guilty of anything.