Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger
When the Patriot Act was signed into law back in 2001, there was significant discussion about and distrust in the broad powers granted to the FBI and other intelligence gathering agencies. I won’t go into the uproar that ensued back then, but I do want to discuss the latest events pertaining to the infamous Section 215 of the Patriot Act. Section 215 of the Patriot Act is the section that has been dubbed as the “business records” provision of the Act. In the last few days, two United States Senators reconfirmed their concern over the possible misuse of the broad powers granted to the government in Section 215. Senator Ron Wyden and Senator Mark Udall have made public their recent letter to Attorney General Holder expressing their grave concerns on just how Section 215 is being interpreted and used to spy on Americans.
“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.” ACLU The full text of the letter can be found here.
What is amazing to me is not that the government is spying on us, but that they have no qualms in spying on us using any and all legal and maybe not so legal measures as hinted at by Senators Wyden and Udall. If I understand the concern of the Senators and the ACLU, the issue revolves around how the Justice Department is interpreting Section 215 and how easily the Feds can spy on Americans without any showing of actual criminal behavior on the citizen’s part.
“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.” ACLU
The linked articles in the above quote from the ACLU hint that intelligence experts believe that Section 215 is being misused to allow the government to obtain massive amounts of geolocation information obtained from cell phones. Of course, unless the government discloses just how they are interpreting Section 215 in their dealings with the Foreign Intelligence Surveillance Court (FISA), we may never know. However, when United States Senators are publicly nervous about the use of this allegedly misguided data collection process, then we should probably be really worried.
If the government is “stretching” the logical interpretation of the language in Section 215 to allow for massive date collection programs, what good is the FISA court if they are rubber stamping this type of alleged program? What happened to the Obama Administration’s promise to be more transparent than past administrations when it came to their dealings with the Patriot Act and the FISA court?
We should not be surprised at the government’s “handling” of these Section 215 matters since Senator Durbin and then Senator Feingold went on record in the Senate with their grave concerns over misuse of Section 215 powers.
“Section 215 has been repeatedly abused On October 1, 2009, Senator Feingold made several statements regarding abuses of Section 215 during a Senate Judiciary Committee markup hearing: “I remain concerned that critical information about the implementation of the Patriot Act remains classified. Information that I believe, would have a significant impact on the debate….. There is also information about the use of Section 215 orders that I believe Congress and the American People deserve to know. It is unfortunate that we cannot discuss this information today Mr Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting.I want to specifically disagree with Senator Kyle’s statement that just the fact that there haven’t been abuses of the other provisions which are Sunsetted. That is not my view of Section 215. I believe section 215 has been misused as well.” Likewise, after the Senate rejected several reforms of Section 215 powers in 2009, Senator Durbin told his colleagues that: “[T]he real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will whether ask our actions today meet the test of a democratic society: transparency, accountability, and fidelity to the rule of law and our Constitution.” ‘ Paranoia
I only wish that I had Senator Durbin’s confidence that the cloak of secrecy will ever be lifted. Do you think the government should be required to disclose the Office of Legal Counsel memos that reportedly have authorized this over broad interpretation of Section 215? If the government is allowed to spy on Americans who are not subjects of criminal or terror investigations, have the Fourth and Fifth Amendments been essentially neutered? Is there any hope of the Patriot Act being brought under control, especially when so much of its use is hidden under the National Security label? What do you think should be done?