Senator Ron Wyden (D-Ore.), one of the few Senate Democrats who wants to amend the PATRIOT Act before reauthorizing it, has struck a deal with Majority Leader Harry Reid (D-Nev.) and withdrawn an amendment that would "require government to end the practice of secretly interpreting law." According to a statement Wyden gave on the Senate floor this morning, Reid and Senator Dianne Feinstein (D-Calif.) offered Wyden the chance to hold hearings on secret law, and, if his concerns were not met, propose his amendment at a later date.
Here's the body of the Wyden amendment, which was co-sponsored by Senator Rand Paul (R-Ky.):
Purpose: To require the Attorney General to publicly disclose the United States Government’s official interpretation of the USA PATRIOT Act.
(a) SENSE OF CONGRESS.—It is the sense of Congress that—
(1) in democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances;
(2) the United States Government has an inherent responsibility to protect American citizens from foreign threats and sometimes relies on clandestine methods to learn information about foreign adversaries, and these intelligence collection methods are often most effective when they remain secret;
(3) American citizens recognize that their government may rely on secret intelligence sources and collection methods to ensure national security and public safety, and American citizens also expect intelligence activities to be conducted within the boundaries of publicly understood law; it is essential for the American public to have access to enough information to determine how government officials are interpreting the law, so that voters can ratify or reject decisions that elected officials make on their behalf;
(5) it is essential that Congress have informed and open debates about the meaning of existing laws, so that members of Congress are able to consider whether laws are written appropriately, and so that members of Congress may be held accountable by their constituents;
(6) United States Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws, and should not describe the execution of these laws in a way that misinforms or misleads the publi.
As Jesse Walker noted in his morning roundup, Spencer Ackerman wrote yesterday at Wired about Wyden's efforts to reform secret elements of the PATRIOT Act:
“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.”
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.