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Wyden, Feinstein, Roberts
Senators Wyden, Feinstein and Roberts in Intelligence meeting (Kevin Lamarque/Reuters)

Senators Ron Wyden (D-OR) and Mark Udall (D-CO) have been on a tear for months about the intelligence community’s reliance on secret interpretations of surveillance law, arguing that the Justice Department has allowed for a secret interpretation of the law that is beyond the bounds of the law and allowing for broad surveillance of Americans.

They're now accusing the Justice Department of "making misleading statements about the legal justification of secret domestic surveillance activities that the government is apparently carrying out under the Patriot Act."

The lawmakers — Ron Wyden of Oregon and Mark Udall of Colorado, both of whom are Democrats on the Senate Intelligence Committee — sent a letter to Attorney General Eric H. Holder Jr. calling for him to “correct the public record” and to ensure that future department statements about the authority the government believes is conveyed by the surveillance law would not be misleading.

“We believe that the best way to avoid a negative public reaction and an erosion of confidence in U.S. intelligence agencies is to initiate an informed public debate about these authorities today,” the two wrote. “However, if the executive branch is unwilling to do that, then it is particularly important for government officials to avoid compounding that problem by making misleading statements.”

The Justice Department denied being misleading about the Patriot Act, saying it has acknowledged that a secret, sensitive intelligence program is based on the law and that its statements about the matter have been accurate.

Wyden and Udall aren't buying it, as Marcy Wheeler explains.

They cite two examples of such mischaracterizations: First, when a number of Justice Department officials claimed,
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.

[snip]

As you know, Section 215 authorities are not interpreted in 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 is interpreted in practice.

What they don’t say, but presumably mean to suggest, is that the claim Section 215 is like a grand jury subpoena is false, since the latter are routinely used to collect the “tangible things” (and even ephemeral things like cell phone tracking data) of completely innocent people..

Much of what Wyden and Udall are concerned about comes from the classified information they have access to as members of the Intelligence committee, but that they can't share in an unclassified letter. Which leads Marcy, an expert in this, to speculate: "[W]hile the bigger issue in this letter seems to be the government’s continued pretense that warrants for surveiling innocent Americans are just like warrants for investigating suspects, I’m beginning to suspect the bigger story is the unusual means by which the Administration got 'authority' to spy on innocent Americans."

Originally posted to Joan McCarter on Fri Sep 23, 2011 at 09:56 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  DOJ Holder A Big Disappointment (13+ / 0-)

    The country would have been better served if he stayed in his job defending giant corporations.

    Existence is no more than the precarious attainment of relevance in an intensely mobile flux of past, present, and future.~~~ Susan Sontag

    by frandor55 on Fri Sep 23, 2011 at 10:21:54 AM PDT

    •  Holder serves at the pleasure of the President. (4+ / 0-)

      imho, it is difficult to judge his actions without the benefit of insider witnesses to conversations.  

      Perhaps some members of Congress are beginning to compare US violations of privacy to those of the Soviet FSB (formerly KGB).

      http://www.guardian.co.uk/...

      ….
      The federal security service (FSB's) operation involves breaking into the private homes of western diplomats – a method the US state department describes as "home intrusions". Typically the agents move around personal items – opening windows, or setting alarms – in an attempt to demoralise and intimidate their targets.

      The FSB operation includes bugging of private apartments, widespread phone tapping, physical surveillance, and email interception. Its victims include local Russian staff working for western embassies, opposition activists, human rights workers and journalists. The clandestine campaign is revealed in Mafia State, a book by the Guardian's former Moscow correspondent Luke Harding, serialised in Saturday's Weekend magazine.

      ….
      According to former Stasi officers the aim was to "switch off" regime opponents by disrupting their private or family lives. Tactics included removing pictures from walls, replacing one variety of tea with another, and even sending a vibrator to a target's wife.

      Usually victims had no idea the Stasi were responsible. Many thought they were going mad; some suffered breakdowns; a few committed suicide.

    •  he has stayed at that job defending big biz (5+ / 0-)

      without the ants the rainforest dies

      by aliasalias on Fri Sep 23, 2011 at 03:33:51 PM PDT

      [ Parent ]

  •  Because of so many rightwing attacks (10+ / 0-)

    on so many aspects of our society, and especially direct economic ones, that all need exposure, push back, or immediate reform, the spying and misuse of information isn't getting nearly the attention that it needs.

    Neither any appreciable degree of freedom or democracy can survive in a universal surveillance society.  I do not trust a unitary executive/benevolent dictatorship or a benevolent oligarchy.

    If we aren't yet ready for the sunlight, at the least I would hope more would join the honorable work toward disinfectant by Wyden and Udall, and the progressive bloggers supporting them.  These flashlights at least illuminate the many, many allegations of over-reach and misuse that have surfaced during the last decade.  Though almost all of our problems with the rightwing attacks on government and humanity itself are inter-related, I wish that a movement could develop to give this most problematic set of new policies and constitutional exemptions national attention.

    Given the multiplicity of issues that need urgent attention, I appreciate the Dkos' effort with the excellent work of McJoan and others here.

    It is not all books that are as dull as their readers. Thoreau

    by blueoasis on Fri Sep 23, 2011 at 11:00:34 AM PDT

  •  Gov: can't live with it; can't live without it. nt (1+ / 0-)
    Recommended by:
    JML9999

    We Will NOT Compromise On Fairness.

    by franklyn on Fri Sep 23, 2011 at 07:08:07 PM PDT

  •  Wyden and Udall Have Absolute Immunity (3+ / 0-)
    Recommended by:
    squarewheel, macdust, David Kaib

    For anything they say on the floor of the Senate.  They absolutely cannot be prosecuted for any classified information they reveal from the floor of the Senate.

    So if it's so important, why don't they just spit it out?

    This aggression will not stand, man.

    by kaleidescope on Fri Sep 23, 2011 at 07:08:18 PM PDT

  •  These are a Few of my “tangible things” (3+ / 0-)
    Recommended by:
    franklyn, jnhobbs, foresterbob

    The Hills are alive with the sound of warrant less wiretapping...

    So it's The Why do you hate this country You're Obsessed with misquoting me out of context while I was in the process of misspeaking with the sun in my eyes while chowing down and bashing Sharia law God Bless America defense.......

    by JML9999 on Fri Sep 23, 2011 at 07:08:56 PM PDT

  •  Remember when... (8+ / 0-)

    we expected Obama to change out Bush's law violations in a wholesale manner?

     - Balkingpoints / www

    •  Is this why the (4+ / 0-)

      left "blogosphere" has been completely disengaged? Is Obama-worship -- that blind obedience with the kind of gang-style lock-step "no dissent" methods they used campaigning -- the reason any and all concern with things like the Patriot Act have dissappeared from the blog pages of the political left? Notice this diary isn't drawing comments anywhere near a diary on sports -- the classical political distractor used on us for years.

      Yes, I remember, and I am frightened. The whole movement was about this stuff, and the crowd suddenly went silent. If it is that easy to turn off political dissent when dismantling the very guts of the Constitution, I'm about out of hope.

      It's good there are people like Wyden and Udall to bring back to the floor the most important things we are struggling with (and it ain't mortgages and the death penalty). A few more years of Soviet style secret policing and mortgages and death penalties will be moot points.

      Fiction is obliged to stick to possibilities. Truth isn't.
      Mark Twain

      by phaktor on Fri Sep 23, 2011 at 07:29:23 PM PDT

      [ Parent ]

    •  Yep (0+ / 0-)

      that was the promise, and the hope.
      Sold another bill of BS.

      In someways, BHO is worse than Bush. We knew he was an asshole.

  •  About time! (2+ / 0-)
    Recommended by:
    Gordon20024, capelza

    Gasoline made from the tar sands gives a Toyota Prius the same impact on climate as a Hummer using gasoline made from oil. ~ Al Gore

    by Lefty Coaster on Fri Sep 23, 2011 at 07:16:03 PM PDT

  •  There's been a lot of buzz on this lately: (8+ / 0-)
    It has come to light that the National Intelligence Service has been using a technique known as “packet tapping” to spy on emails sent and received using Gmail, Google’s email service. This is expected to have a significant impact, as it proves that not even Gmail, previously a popular “cyber safe haven” because of its reputation for high levels of security, is safe from tapping.

    The NIS asserted the need to tap Gmail when applying to a court of law for permission to also use communication restriction measures [packet tapping]. The court, too, accepted the NIS’s request at the time and granted permission for packet tapping.

    Unlike normal communication tapping methods, packet tapping is a technology that allows a real-time view of all content coming and going via the Internet. It opens all packets of a designated user that are transmitted via the Internet. This was impossible in the early days of the Internet, but monitoring and vetting of desired information only from among huge amounts of packet information became possible with the development of “deep packet inspection” technology. Deep packet inspection technology is used not only for censorship, but also in marketing such as custom advertising on Gmail and Facebook.

    The fact that the NIS taps Gmail, which uses HTTP Secure, a communication protocol with reinforced security, means that it possesses the technology to decrypt data packets transmitted via Internet lines after intercepting them.

    “Gmail has been using an encrypted protocol since 2009, when it was revealed that Chinese security services had been tapping it,” said one official from a software security company. “Technologically, decrypting it is known to be almost impossible. If it turns out to be true [that the NIS has been packet tapping], this could turn into an international controversy.”

  •  I'm glad someone is following in Feingold's (0+ / 0-)

    footsteps on this.  And while I'm glad for every voice speaking out on this, I wonder why none of them, including Feingold, ever took their immunity while on the floor of the Senate into consideration, like kaleidescope said above.

  •  Good on my senator, (1+ / 0-)
    Recommended by:
    foresterbob

    Mark Udall.  I believe he's going to turn out to be a statesman.  We haven't had many of those in recent years.

  •  It does surprise me that so little attention (0+ / 0-)

    is paid to privacy issues.  You'd think that lefties, conservatives, and libertarians would all be in agreement on this.  

    There's all this lip service about following the Constitution, and getting government off our backs.  But when it gets down to it, not many people seem to care what's going on.  Everything we say, do, or click on is fair game.

  •  I'm shocked, shocked to find that giving (1+ / 0-)
    Recommended by:
    macdust

    intelligence agencies broad, sweeping powers would lead to abuse of those powers.

    and let's remember, the majority of those NSLs are going to prosecuting drug cases.

    We are all terrorists now.

    big badda boom : GRB 080913

    by squarewheel on Fri Sep 23, 2011 at 09:22:41 PM PDT

  •  This whole situation reveals one of the weaknesses (1+ / 0-)
    Recommended by:
    roadbear

    of the constitution, in that it doesn't provide for an ongoing mechanism by which the executive branch's interpretation of the law is subject to regular review and if called for correction and cessation.

    There is, of course, the standard legal process by which an administration's legal overreaches (a term of art meaning crimes) can be prosecuted or civilly sued. But the DoJ is hardly going to prosecute itself, and state and pivate suits against an administration tend to be rare and thrown out for lack of standing or because crucial evidence isn't admitted due to "states secrets", on which the courts have proven to be excessively and unconscionably deferential.

    There is also the mechanism of congressional hearing and investigation, but as we all too well know, these tend to be quite rare and toothless.

    What's left is a process by which the courts or some quasi-independant agency could be asked to review the legality or constitutionality of executive action and interpretation, and have a binding enforcement mechanism when violations are revealed. This might not be constitutional at present, requiring an amendment to set up. But it's clear that our three branch system is failing on this matter, quite possibly due to systemic weaknesses either not forseen or not accounted for by the framers. And it's a very dangerous weakness, because it opens the door to totalitarianism under the guise of being at war.

    There needs to be a truly independant OLC.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Fri Sep 23, 2011 at 09:44:07 PM PDT

    •  These things aren't weaknesses (0+ / 0-)

      of the Constitution - they are are evidence that it is being undermined.  

      Private suits could serve this purpose if not for the judiciary's Orwellian approach to standing and state secrets. Violations of the 4th Amendment are clearly cases arising under the Constitution - and thereby clearly within the jurisdiction of the federal judiciary.

      Congressional oversight is hampered by an extra-constitutional view that says the executive is largely free to conduct foreign and security policy without interference from Congress. But the entire executive apparatus as it pertains to these policies is a creation of Congress, the power to enforce secrecy or engage in surveillance, if they exist anywhere, come from the necessary and proper clause (i.e. a congressional power).

      The basic idea of the Constitution is that all power flows from the people, so the claim that government can act without public knowledge is simple nonsense.  

      Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

      by David Kaib on Sat Sep 24, 2011 at 05:46:18 AM PDT

      [ Parent ]

      •  The executive is simply too powerful (0+ / 0-)

        And the seeds of that are in the constitution, by design. Washington was the president of the constitutional convention and quietly guided the proceedings towards making the executive very powerful, by his intent. Yes, both the courts and congress have been way too deferential to the executive, but in the context of its having too much power to begin with. This was demonstrated by some of Washington's early actions as president, such as imposing an unfair excise tax on small whiskey distillers (but not on large ones such as himself), and then raising a huge army (for its time) when they dared to refuse to pay it and took up arms.

        There need to be more institutional checks on executive power that are not currently there by design, in addition to the ones currently there but not being enforced. The presidency is simply way too powerful right now.

        Which is kind of ironic given how little use Obama's made of it so far domestically, on the sorts of things he needs to be more aggressive on. Not so much abroad.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Sat Sep 24, 2011 at 12:37:38 PM PDT

        [ Parent ]

        •  I suppose it depends on what you mean (0+ / 0-)

          by powerful.

          Both the powers to raise taxes and armies are explicitly given to Congress, and even then, Washington had to get a judge to certify that it was appropriate to call out the militia (according to the statute that governed this at the time).  

          It seems to me the issue isn't the lack of checks, but the fact that they aren't used, and even more that we (collectively) fail to realize that Article II gives very few powers, and most of the powers President's exercise are given through legislation.  To paraphrase Elizabeth Warren, the first thing to do is to not do those things.

          That failure is a conceptual one that is not limited to either presidents or members of Congress. That said, I'm open to more checks, although I'm not sure what those would be.   (Giving Congress and their staffers access to classified material and ending state secrets privileges, which could be done with legislation, would be the two at the top of my list).

          Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

          by David Kaib on Sat Sep 24, 2011 at 01:12:13 PM PDT

          [ Parent ]

          •  Also, re-empowering the FISA court (1+ / 0-)
            Recommended by:
            David Kaib

            to have the power to regularly review and, if called for, shut down executive branch operations that it deems to be unconstitutional or unlawful.

            Congress and the regular court system have refused to properly employ their constitutional powers and obligations to check the executive, so I think that another, quasi-branch such as FISA (of which we have quite a few at this point, e.g. the Fed, FCC, FDIC, etc.) should be empowered and required to do this. One of the main objections to the FISA revision bill that Obama promised to help filibuster and then promptly helped pass was that it took away such powers from FISA. They need to be not only restored, but enhanced. Unchecked power is an invitation to abuse, and the regular mechanisms simply don't work anymore.

            "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

            by kovie on Sat Sep 24, 2011 at 01:39:21 PM PDT

            [ Parent ]

  •  snicker... (0+ / 0-)

    i like the CA interpretation of "215" better

  •  what can we do about it? (0+ / 0-)

    I, and people I know, we hate the Patriot Act and everything it stands for. We hate the warrantless wiretapping even more. It's shameful and against the spirit of our constitution and our ideals as American citizens. We know it's going on, but, with the gov hiding behind national security and no judicial review, what do we do? How do we stop it if members of Congress can't even TALK about it candidly? Obama said he would end these practices. Instead, we find the administration making use of these practices just like the Bush / Cheney regime did. [and if rumors are true, it's even been escalated]

    "Watch what you say or they'll be calling you a radical, a liberal, fanatical, criminal..."-7.75, -7.28

    by solesse413 on Fri Sep 23, 2011 at 11:29:53 PM PDT

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