Senators call for end to Justice Department's 'secret law'

Obama administration's secret interpretation of the Patriot Act allows it to vacuum up records on all Americans' phone calls. But an earlier effort to fix the law in December failed.

Sen. Ron Wyden has been saying for years that "the American people would be absolutely stunned" if they knew what kind of surveillance has been authorized by the Obama administration's secret Patriot Act interpretations.
Sen. Ron Wyden has been saying for years that "the American people would be absolutely stunned" if they knew what kind of surveillance has been authorized by the Obama administration's secret Patriot Act interpretation. Getty Images

Eight U.S. senators today seized on leaks from the National Security Agency to call for an end to a "secret law" that governs how intelligence agencies electronically spy on Americans.

Secret laws may seem like Kafkaesque jurisprudence borrowed from Soviet Russia, but last week's leak of a secret court order revealed the Obama administration has a secret interpretation of the Patriot Act that allows it to vacuum up logs of all domestic phone calls on a daily basis.

"It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy," Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence committee, said in a statement. "When talking about the laws governing intelligence operations, the process has little to no transparency." Sen. Patrick Leahy, the head of the Judiciary committee, also signed on to today's request.

Wyden, along with senators Mark Udall (D-Colo.) and Rand Paul (R-Ky.), have warned for years of the problems with secret interpretations of the Patriot Act. A CNET article from 2011 quoted him as saying at the time: "I believe that the American people would be absolutely stunned" if they knew what was actually going on.

The secret order from U.S. District Judge Roger Vinson, who serves on the secret Foreign Intelligence Surveillance Court, was disclosed last week by the Guardian newspaper.

Vinson's order relies on Section 215 of the Patriot Act, 50 USC 1861, better known as the "business records" portion. It allows FBI agents to obtain any "tangible thing," including "books, records, papers, documents, and other items," a broad term that includes dumps from private-sector computer databases with limited judicial oversight -- and not what politicians ever envisioned when enacting the Patriot Act in October 2001.

The eight senators are trying again to enact legislation that would, in general, require decisions of the Foreign Intelligence Surveillance Court to be revealed to the public. It has loopholes, however, including allowing the attorney general to make a "determination that a decision may not be declassified" because of national security reasons.

It was offered -- unsuccessfully -- as an amendment in December 2012 during a debate over renewing the Foreign Intelligence Surveillance Act. The renewal, without the amendment attached, was approved by a vote of 73 to 23.

Separately, Google today asked Attorney General Eric Holder to lift a legal gag order that has prevented the company from revealing what information it's legally required to disclose to the feds.

 

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