Udall and Wyden Complain About Misleading Patriot Act Surveillance Reports

U.S. Senators Mark Udall and Ron Wyden have written this letter to Attorney General Eric Holder, 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."

Wyden and Udall have been raising this issue about Section 215 of the Patriot Act, which allows the Government to obtain business records, for months.

[T]he senators contend that the government has also interpreted the provision, based on rulings by the secret national security court, as allowing some other kind of activity that allows the government to obtain private information about people who have no link to a terrorism or espionage case.

They want DOJ to release the legal interpretations they are relying on to enforce the provision. [More...]

[T]here are secret legal opinions controlling how Patriot Act is being interpreted — it’s just that they were issued by the national security court.

“In our judgment, when the legal interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law,” they wrote.

DOJ says the law isn't secret, and it's okay to have secret interpretations. The Senators say secret interpretations of public laws render the laws secret.

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    Hmmmmm (5.00 / 1) (#2)
    by MO Blue on Thu Sep 22, 2011 at 09:37:32 AM EST
    Barack Obama official campaign position paper, 2008:

    Revise the PATRIOT Act. Barack Obama believes that we must provide law enforcement the tools it needs to investigate, disrupt, and capture terrorists, but he also believes we need real oversight to avoid jeopardizing the rights and ideals of all Americans. There is no reason we cannot fight terrorism while maintaining our civil liberties. Unfortunately, the current administration has abused the powers given to it by the PATRIOT Act. A March 2007 Justice Department audit found the FBI improperly and, in some cases, illegally used the PATRIOT Act to secretly obtain personal information about American citizens. As president, Barack Obama would revisit the PATRIOT Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision. link

    President Obama promised on the campaign trail that he would have the most transparent administration in history. That doesn't seem like it is working out real good either.  

    I think the explanation is obvious: (5.00 / 2) (#5)
    by Anne on Thu Sep 22, 2011 at 09:54:19 AM EST
    the "transparency" was meant to work only in one direction.  They want to and will use whatever means at their disposal to see into the lives of as many people as possible; for national security reasons, of course, that glass they are looking through is one-way.

    You just need to update your Obama-speak dictionary.  Again.


    Well as Josh Marshall was fond (5.00 / 1) (#8)
    by MO Blue on Thu Sep 22, 2011 at 01:25:01 PM EST
    of saying all the while he played WORM, I just don't understand "nuance."

    Thanks for explaining the "nuance" in Obama's "transparency" policy for me. ;o)


    I find it more than disturbing that I (5.00 / 1) (#9)
    by Anne on Thu Sep 22, 2011 at 01:32:28 PM EST
    am reaching the point - as I did years ago when taking French - where I don't have to consciously translate from one language into another to comprehend what is being said...trust me when I tell you that becoming fluent in Obama-speak really creeps me out...really.

    My comment about nuances (5.00 / 1) (#10)
    by MO Blue on Thu Sep 22, 2011 at 01:45:03 PM EST
    was mainly done in jest. I am pretty good at parsing what Obama and his political colleges are really saying.

    What I find frustrating is when others go off tangents of wild enthusiasm over statements that were design to confuse and do not mean what many think they mean. Example: The Obama's Buffett sound bite compared to Obama's real policy as explained by Gene Sperling on the White House website (hint tax reform that lowers overall rates).


    Yeah, I read that, too, and (5.00 / 1) (#11)
    by Anne on Thu Sep 22, 2011 at 02:09:31 PM EST
    continue to be amazed at how easily people are satisfied by little more than buzz words; some days, I feel - as I'm sure you and a lot of people who comment here do - like no one really thinks anymore.

    Night after night, as I'm making dinner and my husband has the news on, I marvel not only at how much the media doesn't tell people, but that much of what they do "report" on is done without the proper context, lacking any real substance and often - just plain wrong.  And people still believe that if Brian, Diane or Scott tell them something, well, it must be so.

    Where is Howard Beale when you need him?  When will we ever see Brian Williams start into a report, stop, and say, "I'm not reading this pile of crap to the audience and pretending it's the truth.  It's not.  So, listen up, people, here's the real deal...?"  When will Scott Pelley open a report with, "hey, folks, settle in, we've got a big steaming load of lies, distractions and misdirections for you tonight!...?"  When will Diane Sawyer give us that lovely smile, lean into the camera and say, "Tonight, we wanted to go in a different direction.  For the first time, World News Tonight will bring you the real news, tell you who's behind the leaks and anonymous sources, and reveal just how much we are normally controlled by our corporate owners.  What did we want to say that got cut?  What did we learn and who didn't want you to know it - and why...?"

    As if.  Sometimes I crack myself up.

    So, who cares if the "Buffett Rule" isn't really a rule at all, but just a Trojan Horse, inside of which is what is intended to be the real policy?  

    Oy, I can't stand much more.


    I would love to see that (none / 0) (#14)
    by jbindc on Thu Sep 22, 2011 at 02:48:00 PM EST
    "terrrrrrrrrrrorsssssssts" (none / 0) (#6)
    by Mr Natural on Thu Sep 22, 2011 at 10:55:38 AM EST
    It all depends on whom you intend to terrorize with your definition of terrorist.

    "The Enemy is Us," - Pogo (none / 0) (#7)
    by Mr Natural on Thu Sep 22, 2011 at 10:57:01 AM EST
    Well.... (none / 0) (#12)
    by Edger on Thu Sep 22, 2011 at 02:30:19 PM EST
    He did promise to be transparent......................................

    Marcy Wheeler weighs in: (5.00 / 1) (#4)
    by Anne on Thu Sep 22, 2011 at 09:44:55 AM EST
    Bold is mine.

    The other problem-one they probably can't lay out in an unclassified letter-is the precedent of the In re Sealed Case decision by FISCR. As I've laid out, Cheney's illegal wiretap program appears to have been in tension if not outright conflict with the FISCR for a year and a half, until Jack Goldsmith purportedly resolved that conflict with specious (though still classified) arguments. Given that DOJ has apparently not laid out what they're actually doing with Section 215 and geolocation in an OLC memo, it increases the likelihood that the language of the FISC opinions may not precisely apply to the behavior of DOJ (as an OLC opinion might). Furthermore, in that previous case, DOJ sent a bunch of lawyers who weren't even briefed into relevant activities to argue before the court.

    There's no affirmative evidence DOJ is doing such things in this case. But the In re Sealed Case precedent, the unexplained chose not to get OLC to approve this activity, as well as the Obama Administration's precedent of overriding OLC when its lawyers counseled against continued Libyan bombing all raise real questions about the legal process by which the Administration came to claim this stuff has some kind of legal sanction.

    In other words, while 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.


    Do we have any rights anymore?

    Change we can believe in (none / 0) (#1)
    by BobTinKY on Thu Sep 22, 2011 at 09:35:25 AM EST

    Happy to learn two (none / 0) (#3)
    by oculus on Thu Sep 22, 2011 at 09:38:30 AM EST
    Senators are concerned and breathing down DOJ's neck.

    Naive? (none / 0) (#13)
    by mmc9431 on Thu Sep 22, 2011 at 02:42:32 PM EST
    What surprises me is that there's anyone alive that didn't realize that the Patriot Act would be abused and misused.

    When you relinquish your rights and allow decisions to me made by a secret court, you shouldn't be surprised at anything that happens.

    When all these laws were enacted, no one in Congress bothered to actually define "terrorism". So it's open season for whatever they chose it to be.

    I'm sure John Yoo could write a paper connecting anything you want directly to terrorism.

    Connecting anything EXCEPT... (5.00 / 0) (#15)
    by Dadler on Thu Sep 22, 2011 at 05:14:37 PM EST
    ...John Yoo himself.  His sh*t smells like lilacs, donthca know?

    And Berkeley is still happy to have him as a professor apparently.  (Insert vomiting sound here.)