For months, Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) have been sounding the alarm 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.
In fact, on Thursday they sent a letter to Attorney General Holder in support of a Freedom of Information Act request by the ACLU and The New York Times for information about the interpretation the government is using. The letter reads, in part:
We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the governmentsecretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn't know what its government thinks the law says.
The provision in question, Sec. 215, allows the government to gain access to records of citizens' activities being held by a third party. It gives the FBI the power to force doctors, libraries, bookstores, universities and internet service providers, for example, to turn over records on their clients or customers.
Coincidentally, also on Thursday, the government confirmed that it does indeed have a secret interpretation of Sec. 215, as Sens. Wyden and Udall have been arguing. That confirmation comes in a document release to the ACLU from their FOIA request, but doesn't yet enlighten on what exactly that interpretation—which the senators say will shock and enrage the public—says.
Although we're still reviewing the documents, we're not holding our breath for any meaningful explanation from the government about its secret take on the Patriot Act. We do know now that there are two memos from the Office of Legal Counsel (the same Justice Department group that issued the torture memos) relating to Section 215. But as has become a routine practice for the Justice Department, the OLC is keeping those memos entirely secret.
This secrecy is overbroad and unnecessary. Americans have a right to know how their government is interpreting public laws, especially when those laws give the government sweeping authority to collect more and more of our personal and private information.
While the administration is touting its Consumer Privacy Bill of Rights
for how private
companies should protect consumer information, the government apparently feels it should have complete access to that same information about American citizens.