'It's Almost As If There Are Two PATRIOT Acts'


Last week Mike Riggs noted Ron Wyden's warnings about the Obama administration's "secret interpretation" of the PATRIOT Act, which he said undermines democracy, the rule of law, and ultimately the public's support for anti-terrorism efforts. Here is some of what Wyden, an Oregon Democrat who serves on  the Senate Intelligence Committee, had to say on the subject in a floor speech on Thursday:

When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.  And they will be asking senators, "Did you know what this law actually permits?"  "Why didn't you know before you voted on it?" The fact is that anyone can read the plain text of the PATRIOT Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified. 

It's almost as if there are two Patriot Acts, and many members of Congress haven't even read the one that matters. Our constituents, of course, are totally in the dark. Members of the public have no access to the executive branch's secret legal interpretations, so they have no idea what their government thinks this law means….

While Americans recognize that government agencies will sometimes rely on secret sources and methods to collect intelligence information, Americans also expect that these agencies will operate at all times within the boundaries of publicly understood law.

I have served on the Senate Intelligence Committee for ten years, and I don't take a backseat to anybody when it comes to the importance of protecting genuinely sensitive sources and collection methods. But the law itself should never be secret—voters have a need and a right to know what the law says, and what their government thinks the text of the law means, so that they can decide whether the law is appropriately written and ratify or reject decisions that their elected officials make on their behalf….

Government officials must not be allowed to fall into the trap of secretly reinterpreting the law in a way that creates a gap between what the public thinks the law says and what the government secretly claims that it says….When the public eventually finds out that government agencies have been rewriting surveillance laws in secret, the result is invariably a backlash and an erosion of public confidence in these government agencies. 

Wyden likened the Obama administration's classified understanding of the PATRIOT Act to Harry Truman's telegram-intercepting Project Shamrock, the CIA's domestic spying, the Reagan administration's Iran-contra scandal, and the Bush administration's secret approval of warrantless wiretaps. But what exactly does this twisting of the PATRIOT Act entail? Wyden can't say, because it's classified. (Duh!) But Cato Institute privacy specialist (and Reason contributing editor) Julian Sanchez argues, based on clues going back to comments that two other senators, Richard Durbin (D-Ill.) and Russell Feingold (D-Wis.), made more than a year ago, that the shocking secret probably has something to do with mass collection and analysis of cell phone geolocation data under Section 215 of the law.

Look for my column tomorrow about the rush to renew the PATRIOT Act.