Public Said to Be Misled on Use of the Patriot Act
By Charlie Savage
New York Times
Published: September 21, 2011
WASHINGTON - Two
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
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
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
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 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
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.