Double Secret Probation

Respectfully Submitted by Lawrence Rafferty-Guest Blogger

I guess I am a little naïve, but I was shocked to read that the Obama Administration has a secret legal interpretation of the Patriot Act that is so large in its scope that some Senators consider it a whole new law!  “Two Senators have been warning for months that the government has a secret legal interpretation of the Patriot Act so broad that it amounts to an entirely different lawone that gives the feds massive domestic surveillance powers, and keeps the rest of us in the dark about the snooping.

“There is a significant discrepancy between what most Americans – including many members of Congress – think the Patriot Act allows the government to do and how government officials interpret that same law,” wrote the Senators, Ron Wyden and Mark Udall. “We believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret.”  The Senators tried to get the government to reveal some of the law’s contents, by forcing the Director of National Intelligence and the Attorney General to produce a report outlining when this secret surveillance has gone overboard. Yesterday, the effort failed. The Senate Select Committee on Intelligence said no to the report by rejecting Wyden and Udall’s amendment to the FY2012 Intelligence Authorization Act.”  Crooks and Liars

If two Democratic Senators cannot convince a Democratically controlled Select Committee to accept their amendment, all hell has broken loose and pigs can now fly.  If you think about it, as long as any government agency can keep their interpretation of a law secret, it amounts to a completely independent legislature that does not answer to the American people.   Senator Wyden gave an interview in May of this year and he addressed this very subject.

“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.”

Kudos are in order for Senators Udall and Wyden for bringing this discussion into the open.  However it amazes me that Democrats in the Senate would allow an interpretation of a law be kept as a secret.  Especially when that double secret interpretation hides the true meaning of how the government is allowed to spy on us all. In these times of severe fracture within the Legislature, it seems that one of the few agreements that made it out of Washington is one that holds the American people in the dark and prevents the truth from reaching our ears. It is time for Congress to understand that Americans want to know how this Administration and any Administration is interpreting the law.  We are not asking them to disclose State Secrets,  just the definitions of how the public law is interpreted by the Obama Administration.

Happy Birthday Mr. President, but it is time to come clean on this double secret probation that you have us under!

Respectfully Submitted by Lawrence Rafferty-Guest Blogger

76 thoughts on “Double Secret Probation”

  1. Didn’t some congressman place on the record classified Vietnam records……and they tried to make a stink about that then….


    You are a vital force for information….Thank you….



    Sens. Wyden and Udall Weigh in on ACLU Patriot Act FOIA Case

    Posted by Jameel Jaffer, Center for Democracy at 6:09pm

    “Contrary to core principles of American democracy.” That’s how two U.S. senators describe the Justice Department’s refusal to release a secret legal interpretation of the Patriot Act.

    Last year, we filed a request under the Freedom of Information Act for records about the government’s use and interpretation of one of the Patriot Act’s most controversial provisions: Section 215. Some members of the Senate Intelligence Committee had suggested that the provision was being abused. “When the American people find out how their government has secretly interpreted the Patriot Act,” Colorado Sen. Mark Udall said, “they will be stunned and they will be angry.”

    Our FOIA request was an effort to uncover more information about the way that the Justice Department has interpreted the statute, and the way that the FBI is using it. Because the Justice Department hasn’t produced any records in response to our request, we filed suit in October, 10 years to the day after President Bush signed the Patriot Act into law. We’ll file our opening brief in that case later this month.

    This afternoon, Sen. Udall and Oregon Sen. Ron Wyden sent a letter to the attorney general commenting on our lawsuit and on a related but narrower FOIA suit filed by The New York Times. The letter is worth reading in its entirety, but here’s a particularly crucial passage:

    It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or “FISA Court”) has been acknowledged on multiple occasions by the Justice Department and other executive branch officials.

    We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.

    As we have said before, we believe that it is entirely legitimate for government agencies to keep certain information secret. Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected any more than early Americans expected George Washington to tell them his plans for observing troop movements at Yorktown. However, in a democratic society — in which the government derives its power from the consent of the people — citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to know how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don’t think that government officials should be writing secret law.

    This isn’t the first time the ACLU has sought information about the government’s use of this provision. Back in 2002, we filed a FOIA suit that eventually resulted in the release of a few hundred documents — including this, this, and this. But now the FBI is using Section 215 much more aggressively. It’s using it more often. And statements by Obama administration officials raise the distinct possibility that the government is using the provision to support entire surveillance programs.

    As Wyden and Udall say, the secrecy surrounding the government’s use of new surveillance powers is unwarranted and fundamentally antidemocratic. The public should know, at least in general terms, how the government interprets its surveillance authority and how that authority is being used. (end of ACLU posting)

  3. Greenwald’s article has been updated:

    “Wyden and Udall have failed to tell the public about this illegal spying (even though they could do so on the Senate floor and be immune from prosecution) because they apparently fear losing their precious seat on the Intelligence Committee, but what’s the point of having a seat on the Intelligence Committee if you render yourself completely impotent even when you learn of systematic surveillance lawbreaking?”

    Wyden and Udall need to tell the truth to the American public. They know, they could tell… and yet they remain silent.



    Friday, April 20, 2012

    Exclusive: National Security Agency Whistleblower William Binney on Growing State Surveillance

    “In his first television interview since he resigned from the National Security Agency over its domestic surveillance program, William Binney discusses the NSA’s massive power to spy on Americans and why the FBI raided his home after he became a whistleblower. Binney was a key source for investigative journalist James Bamford’s recent exposé in Wired Magazine about how the NSA is quietly building the largest spy center in the country in Bluffdale, Utah. The Utah spy center will contain near-bottomless databases to store all forms of communication collected by the agency, including private emails, cell phone calls, Google searches and other personal data.

    Binney served in the NSA for over 30 years, including a time as technical director of the NSA’s World Geopolitical and Military Analysis Reporting Group. Since retiring from the NSA in 2001, he has warned that the NSA’s data-mining program has become so vast that it could “create an Orwellian state.” Today marks the first time Binney has spoken on national television about NSA surveillance.

    William Binney, served in the NSA for over 30 years, including a time as director of the NSA’s World Geopolitical and Military Analysis Reporting Group. Since retiring from the NSA in 2001, he has warned that the NSA’s data-mining program has become so vast that it could “create an Orwellian state.””

  5. We love to tell ourselves that there is a robust freedoms and a thriving free political press in the U.S. because you’re allowed to have an MSNBC show or blog in order to proclaim every day how awesome and magnanimous the President of the United States is and how terrible his GOP political adversaries are — cutting and edgy! — or to go on Fox News and do the opposite. But people who are engaged in actual dissent, outside the tiny and narrow permissible boundaries of pom-pom waving for one of the two political parties — those who are focused on the truly significant acts which the government and its owners are doing in secret — are subjected to this type of intimidation, threats, surveillance, and climate of fear, all without a whiff of illegal conduct (as even The New York Times‘ most celebrated investigative reporter, James Risen, will tell you). -Glenn Greenwald

    Saturday, Apr 21, 2012 8:03 AM Eastern Daylight Time\

    Surveillance State evils

    By Glenn Greenwald

    “Whether a country is actually free is determined not by how well-rewarded its convention-affirming media elites are and how ignored its passive citizens are but by how it treats its dissidents, those posing authentic challenges to what the government does.

    Note, too, how this weapon has been not just maintained, but — as Binney said — aggressively expanded under President Obama. Obama’s unprecedented war on whistleblowing has been, in large part, designed to shield from the American public any knowledge of just how invasive this Surveillance State has become.

    Two Democratic Senators — Ron Wyden of Oregon and Mark Udall of Colorado — have spent two full years warning that the Obama administration is “interpreting” its spying powers under the Patriot Act in ways so “twisted” and broad that it would shock the American public if it learned of what was being done, and have even been accusing the DOJ and Attorney General Holder of actively misleading the public in material ways about its spying powers.” (end of excerpt)

  6. Americans should be screaming about this… Rather, the silence is overwhelming…

    “Democratic Senators Issue Strong Warning About Use of the Patriot Act

    Published: March 16, 2012

    Democratic Senators Issue Strong Warning About Use of the Patriot Act
    Published: March 16, 2012

    WASHINGTON — For more than two years, a handful of Democrats on the Senate intelligence committee have warned that the government is secretly interpreting its surveillance powers under the Patriot Act in a way that would be alarming if the public — or even others in Congress — knew about it.

    On Thursday, two of those senators — Ron Wyden of Oregon and Mark Udall of Colorado — went further. They said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained.

    The senators, who also said that Americans would be “stunned” to know what the government thought the Patriot Act allowed it to do, made their remarks in a letter to Attorney General Eric H. Holder Jr. after a Justice Department official last month told a judge that disclosing anything about the program “could be expected to cause exceptionally grave damage to the national security of the United States.”

    The Justice Department has argued that disclosing information about its interpretation of the Patriot Act could alert adversaries to how the government collects certain intelligence. It is seeking the dismissal of two Freedom of Information Act lawsuits — by The New York Times and by the American Civil Liberties Union — related to how the Patriot Act has been interpreted.

    The senators wrote that it was appropriate to keep specific operations secret. But, they said, the government in a democracy must act within publicly understood law so that voters “can ratify or reject decisions made on their behalf” — even if that “obligation to be transparent with the public” creates other challenges.

    “We would also note that in recent months we have grown increasingly skeptical about the actual value of the ‘intelligence collection operation,’ ” they added. “This has come as a surprise to us, as we were initially inclined to take the executive branch’s assertions about the importance of this ‘operation’ at face value.”

    The dispute centers on what the government thinks it is allowed to do under Section 215 of the Patriot Act, under which agents may obtain a secret order from the Foreign Intelligence Surveillance Court allowing them to get access to any “tangible things” — like business records — that are deemed “relevant” to a terrorism or espionage investigation.

    There appears to be both an ordinary use for Section 215 orders — akin to using a grand jury subpoena to get specific information in a traditional criminal investigation — and a separate, classified intelligence collection activity that also relies upon them.

    The interpretation of Section 215 that authorizes this secret surveillance operation is apparently not obvious from a plain text reading of the provision, and was developed through a series of classified rulings by the Foreign Intelligence Surveillance Court.

    The letter from Mr. Wyden and Mr. Udall also complained that while the Obama administration told Congress in August 2009 that it would establish “a regular process for reviewing, redacting and releasing significant opinions” of the court, since then “not a single redacted opinion has been released.”


    Posted at 03:04 PM ET, 09/21/2011
    Court allows challenge of U.S. surveillance law

    By Ellen Nakashima

    A group of plaintiffs hoping to mount a challenge to U.S. surveillance law secured a major victory Wednesday when a federal appeals court upheld their standing to sue the government.

    The Second Circuit Court of Appeals’ 6-6 decision allows a group of American lawyers, human rights activists and journalists to challenge the constitutionality of the Foreign Intelligence Surveillance Act as amended by Congress in 2008.

    The dissenting judges argued that the standing issue should now be addressed by the U.S. Supreme Court.

    The ruling marks the first time any group of plaintiffs has gotten so far in the effort to challenge the constitutionality of the law as it was revised in 2008.

    “The government’s surveillance practices should not be immune from judicial review,” ACLU Deputy Legal Director Jameel Jaffer said. “And this decision ensures that they won’t be.”

    The Justice Department declined to comment on Wednesday’s ruling.

    (end of excerpt)



    “Every year, the FBI sends about 50,000 “national security letters” (NSLs) to Internet service providers and others requesting information about their customers. Today we filed a lawsuit aiming to make sure that the government is following the rules when it uses this controversial tool.

    NSLs allow the FBI to collect information that’s extremely sensitive — e.g. the names of websites that a person has visited, or the email addresses with which she has corresponded — and to do so without judicial oversight. Unsurprisingly, government reports have detailed significant abuses.

    Several years ago, the ACLU challenged one particularly troubling aspect of NSLs: the government’s ability to silence recipients of NSLs using gag orders. By imposing these gag orders, the FBI cloaked the use (and abuse) of its NSL authority in near-blanket secrecy.”

  9. Ain’t it the truth, rafflaw… Ain’t it the truth… (speaking colloquially, of course…:-) )


    Glenn Greenwald
    Thursday, Sep 1, 2011

    Top CIA official: Obama “changed virtually nothing”
    By Glenn Greenwald


    PBS’s Frontline is airing an examination of “Top Secret America” on September 6. The show includes a rare and lengthy interview with 34-year-CIA-veteran John Rizzo, who is described as “the most influential lawyer in CIA history.” PBS is promoting that interview this way:

    Here is one quote they include from Rizzo:

    With a notable exception of the enhanced interrogation program, the incoming Obama administration changed virtually nothing with respect to existing CIA programs and operations. Things continued. Authorities were continued that were originally granted by President Bush beginning shortly after 9/11. Those were all picked up, reviewed and endorsed by the Obama administration. (end excerpt)

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