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.”