Wednesday, June 01, 2011

The Secret Patriot Act : Dispatches from the Culture Wars

Posted on: June 1, 2011 9:31 AM, by Ed Brayton

My former colleague Spencer Ackerman writes about a "secret" Patriot Act, or more accurately a secret interpretation of that act held by the Obama administration that allows them to violate the 4th amendment at will.

Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation -- an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy "dragnets" for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.

"We're getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says," Wyden told Danger Room in an interview in his Senate office. "When you've got that kind of a gap, you're going to have a problem on your hands."

This is not at all surprising to me. It is, in fact, quite in line with a speech that I gave on Constitution Day in 2009 at Cooley Law School. We have known since at least the publication of Mark Stein's book Wiring Up the Big Brother Machine that the NSA collects and archives nearly every single electronic communication made in the United States -- phone calls, emails, text messages, virtually everything. That they have a secret legal interpretation that allegedly allows them to do this is hardly a surprise.

Incidentally, you can hear my interview with Klein on my radio show from August, 2009 here.

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can't precisely explain without disclosing classified information. But one component of the Patriot Act in particular gives him immense pause: the so-called "business-records provision," which empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any "tangible things" it deems relevant to a security investigation.

"It is fair to say that the business-records provision is a part of the Patriot Act that I am extremely interested in reforming," Wyden says. "I know a fair amount about how it's interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it."

That's why Wyden and his colleague Sen. Mark Udall offered an amendment on Tuesday to the Patriot Act reauthorization.

The amendment, first reported by Marcy Wheeler, blasts the administration for "secretly reinterpret[ing] public laws and statutes." It would compel the Attorney General to "publicly disclose the United States Government's official interpretation of the USA Patriot Act." And, intriguingly, it refers to "intelligence-collection authorities" embedded in the Patriot Act that the administration briefed the Senate about in February.

That amendment failed, of course. This whole idea of secret interpretations of the law is anathema in a free society. But of course, neither party seems to have the slightest interest in doing anything about it.

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