Ron Wyden and Mark Udall have been waging a lonely battle to make public information about the Justice Department’s interpretation of the Patriot Act, which they claim violates civil liberties in as-yet undisclosed ways. They tried to force this into the public sphere on the Senate floor. Senate Intelligence Committee chair Dianne Feinstein promised hearings that never materialized.
Wyden and Udall continue to press the issue and force it into the open. Charlie Savage writes of their latest effort:
They said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained.
The senators, who also said that Americans would be “stunned” to know what the government thought the Patriot Act allowed 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 has argued that disclosing information about its interpretation of the Patriot Act could alert adversaries to how the government collects certain intelligence. It is seeking the dismissal of two Freedom of Information Act lawsuits — by The New York Times and by the American Civil Liberties Union — related to how the Patriot Act has been interpreted.
The assumption is that the issue concerns Section 215 of the Patriot Act, which allows the government to receive relevant tangible information, be it business records or other private communications, to assist in terrorism investigations, if they clear it with the Foreign Intelligence Surveillance Court. However, Wyden and Udall allege that Section 215 is being interpreted much more broadly, in ways that they, at least, object to. The specific interpretation is classified, and Wyden and Udall would like that interpretation to be opened. But so far there’s a shroud of secrecy over it.
In other secrecy news, the ACLU just filed in DC Circuit Court an appeal to have the CIA honor a FOIA request about their drone program. It asks for the underlying legal documents that authorize using drones to carry out targeted killings, and data on the collateral damage of those operations, including civilian casualties. The CIA, to this date, has not confirmed or denied the existence of the drone program. The appeal uses statements acknowledging the drone program’s existence from the likes of Defense Secretary Panetta and President Obama to force disclosure.
So much of Administration national security policy is not fully known despite the best efforts of a scattered few lawmakers and civil liberties advocates.
UPDATE: In some breaking news, the ACLU indicates it has confirmation that the government has made a secret interpretation of the Patriot Act’s Section 215.
Late last night we received the first batch of documents from the government in response to our Freedom of Information Act request for any files on its legal interpretation of Section 215. The release coincided with the latest in a string of strong warnings from two senators about how the government has secretly interpreted the law. According to them both, the interpretation would shock not just ordinary Americans, but even their fellow lawmakers not on the intelligence committees.
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.