Monday, September 26, 2011

Public Said to Be Misled on Use of the Patriot Act

Public Said to Be Misled on Use of the Patriot Act

By Charlie Savage

New York Times

Published: September 21, 2011


WASHINGTON - Two United States senators on Wednesday

accused 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.


The lawmakers - Ron Wyden of Oregon and Mark Udall of

Colorado, both of whom are Democrats on the Senate

Intelligence Committee - sent a letter to Attorney

General Eric H. Holder Jr. calling for him to "correct

the public record" and to ensure that future department

statements about the authority the government believes

is conveyed by the surveillance law would not be



"We believe that the best way to avoid a negative public

reaction and an erosion of confidence in U.S.

intelligence agencies is to initiate an informed public

debate about these authorities today," the two wrote.

"However, if the executive branch is unwilling to do

that, then it is particularly important for government

officials to avoid compounding that problem by making

misleading statements."


The Justice Department denied being misleading about the

Patriot Act, saying it has acknowledged that a secret,

sensitive intelligence program is based on the law and

that its statements about the matter have been accurate.


Mr. Wyden and Mr. Udall have for months been raising

concerns that the government has secretly interpreted a

part of the Patriot Act in a way that they portray as

twisted, allowing the Federal Bureau of Investigation to

conduct some kind of unspecified domestic surveillance

that they say does not dovetail with a plain reading of

the statute.


The dispute has focused on Section 215 of the Patriot

Act. It allows a secret national security court to issue

an order allowing the F.B.I. to obtain "any tangible

things" in connection with a national security

investigation. It is sometimes referred to as the

"business records" section because public discussion

around it has centered on using it to obtain customer

information like hotel or credit card records.


But in addition to that kind of collection, the 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.


Justice Department officials have sought to play down

such concerns, saying that both the court and the

intelligence committees know about the program. But the

two lawmakers contended in their letter that officials

have been misleading in their descriptions of the issue

to the public.


First, the senators noted that Justice Department

officials, under both the Bush and Obama

administrations, had described Section 215 orders as

allowing the F.B.I. to obtain the same types of records

for national security investigations that they could get

using a grand jury subpoena for an ordinary criminal

investigation. But the two senators said that analogy

does not fit with the secret interpretation.


The senators also criticized a recent statement by a

department spokesman that "Section 215 is not a secret

law, nor has it been implemented under secret legal

opinions by the Justice Department." This was "extremely

misleading," they said, because there 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.


That part of the dispute appeared to turn on semantics.

The department said that while the national security

court's opinions interpreting the Patriot Act are

classified, the law itself is public.


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