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Friday, May 27 2011 - 9/11 Consequences
4 senators win promise of a Patriot Act hearing/There's a Secret Patriot Act, Senator Says
May 26, 2011
WASHINGTON -- Four Democratic senators won the promise Thursday of a Senate Intelligence Committee hearing into what they say is a secret and expansive Justice Department interpretation of the information collection the Patriot Act allows.
The criticism by Intelligence Committee members Ron Wyden of Oregon and Mark Udall of Colorado came as Congress moved to extend the government's Patriot Act powers to search records and conduct roving wiretaps.
Wyden said there is a growing gap between what the law says and what the senators call a classified interpretation of the law by the Justice Department.
Udall said his constituents "would be alarmed if they knew" how the Patriot Act was being carried out.
Sen. Jeff Merkley of Oregon complained that "the government won't even tell the American people how it interprets these provisions, or whether it sees any limits on its authority at all." Sen. Tom Udall of New Mexico said almost 10 years after the Patriot Act's passage, "we still haven't had the debate that we need to have on this piece of legislation." All four senators voted against the Patriot Act extension. Merkley and Tom Udall are not on the intelligence committee.
The four senators proposed an amendment that would require Attorney General Eric Holder to file a public report on the legal rationale for intelligence collection activities. Wyden vowed to offer the amendment in the fall "if we don't get results" through the hearing process.
The wording of the amendment seemed to suggest that Wyden and Udall have been concerned about the issue since Feb. 2, when the intelligence committees on the Hill received a secret report from the attorney general and the director of national intelligence. The amendment says that the attorney general must publish in the Federal Register the legal basis for the intelligence collection activities described in the Feb. 2 report.
On the Senate floor, Intelligence Committee Chairwoman Dianne Feinstein said she intends to call a hearing with intelligence agencies, senior policymakers and the Justice Department after the Memorial Day break and to make changes "if changes are needed." The hearing will be closed to the public.
At the Justice Department, spokesman Dean Boyd said the department has "gone to great lengths to ensure that the public's elected representatives are fully informed of the ways in which we interpret and use these authorities."
Boyd said the provisions of the Patriot Act are subject to extensive oversight by the Foreign Intelligence Surveillance Court, by Congress and the executive branch.
"We have made available detailed information on the use of these Foreign Intelligence Surveillance Act authorities to members of the Senate and the House and we have participated in numerous hearings, both classified and open, with relevant congressional committees," Boyd added.
Read more: http://www.miamiherald.com/2011/05/26/2237067/2-senators-win-promise-of-patriot.html#ixzz1NY3yS8gD
There's a Secret Patriot Act, Senator Says
By Spencer Ackerman
You think you understand how the Patriot Act allows the government to spy on its citizens. Sen. Ron Wyden says it's worse than you know.
Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation -- an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy "dragnets" for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.
"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.
The amendment, first reported by Marcy Wheeler, blasts the administration for "secretly reinterpret[ing] public laws and statutes." It would compel the Attorney General to "publicly disclose the United States Government's official interpretation of the USA Patriot Act." And, intriguingly, it refers to "intelligence-collection authorities" embedded in the Patriot Act that the administration briefed the Senate about in February.
Wyden says he "can't answer" any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information -- something Wyden considers an abuse of government secrecy. He believes the techniques themselves should stay secret, but the rationale for using their legal use under Patriot ought to be disclosed.
"I draw a sharp line between the secret interpretation of the law, which I believe is a growing problem, and protecting operations and methods in the intelligence area, which have to be protected," he says.
Surveillance under the business-records provisions has recently spiked. The Justice Department's official disclosure on its use of the Patriot Act, delivered to Congress in April, reported that the government asked the Foreign Intelligence Surveillance Court for approval to collect business records 96 times in 2010 -- up from just 21 requests the year before. The court didn't reject a single request. But it "modified" those requests 43 times, indicating to some Patriot-watchers that a broadening of the provision is underway.
"The FISA Court is a pretty permissive body, so that suggests something novel or particularly aggressive, not just in volume, but in the nature of the request," says Michelle Richardson, the ACLU's resident Patriot Act lobbyist. "No one has tipped their hand on this in the slightest. But we've come to the conclusion that this is some kind of bulk collection. It wouldn't be surprising to me if it's some kind of internet or communication-records dragnet." (Full disclosure: My fiancée works for the ACLU.)
The FBI deferred comment on any secret interpretation of the Patriot Act to the Justice Department. The Justice Department said it wouldn't have any comment beyond a bit of March congressional testimony from its top national security official, Todd Hinnen, who presented the type of material collected as far more individualized and specific: "driver's license records, hotel records, car-rental records, apartment-leasing records, credit card records, and the like."
But that's not what Udall sees. He warned in a Tuesday statement about the government's "unfettered" access to bulk citizen data, like "a cellphone company's phone records." In a Senate floor speech on Tuesday, Udall urged Congress to restrict the Patriot Act's business-records seizures to "terrorism investigations" -- something the ostensible counterterrorism measure has never required in its nearly 10-year existence.
Indeed, Hinnen allowed himself an out in his March testimony, saying that the business-record provision "also" enabled "important and highly sensitive intelligence-collection operations" to take place. Wheeler speculates those operations include "using geolocation data from cellphones to collect information on the whereabouts of Americans" -- something our sister blog Threat Level has reported on extensively.
It's worth noting that Wyden is pushing a bill providing greater privacy protections for geolocation info.
For now, Wyden's considering his options ahead of the Patriot Act vote on Thursday. He wants to compel as much disclosure as he can on the secret interpretation, arguing that a shadow broadening of the Patriot Act sets a dangerous precedent.
"I'm talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are," Wyden says, "and the reliance on secret interpretations of the law is growing."
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