Despite the Obama administration's proclaimed commitment to transparency, the administration's approach to national security policy continues to send mix signals.
According to two members of the Senate Intelligence Committee, under Obama, we have a secret court (Foreign Intelligence Surveillance Court) issuing a secret interpretation of a law (Section 215 of the PATRIOT Act) that gives the Federal Bureau of Investigation (FBI) the power to collect information on individuals in secret.
Section 215 of the PATRIOT Act, known as the "business records" provision, allows law enforcement to obtain "any tangible thing" that is relevant to an international terrorism or espionage investigation. Section 215 allows collection of information on individuals who are not target of a criminal investigation or even suspected of criminal activity. And, Section 215 orders come with a gag order prohibiting the recipient – which could be your library, your bank, your credit card company, or any other private entity – from disclosing receipt of the order.
However, this is just what we know from reading the statute. Senators Ron Wyden (D-OR) and Mark Udall (D-CO) commendably sent a letter to Attorney General Eric Holder sharply criticizing the Justice Department's use of a secret interpretation of surveillance powers, and accusing the Justice Department of misleading the public:
. . . we have been concerned for some time that the U.S. government is relying on secret interpretations of surveillance authorities that - in our judgment - differ significantly from the public's understanding of what is permitted under U.S. law. . . . Justice Department officials have - on a number of occasions - made what we believe are misleading statements pertaining the government's interpretation of surveillance law.
Senators Wyden and Udall first raised the alarm about the way the Justice Department interpreted Section 215 when the provision was reauthorized earlier this year – without any additional safeguards for oversight or privacy. During the re-authorization debate back in May Senator Wyden said,
I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry . . .
Senator Udall backed Wyden's warning during the debate:
Americans would be alarmed if they knew how this law is being carried out.
Meanwhile, the little information the public does have about Section 215 shows the FBI has not been managing the power responsibly (see two reports from the Justice Department's Inspector General in 2007 and 2008). One example: the Foreign Intelligence Surveillance Court (FISC) rejected the FBI's request for a Section 215 order because the request "implicated ... First Amendment rights," only to have the FBI go around the Court and use another much-abused power (the National Security Letter power) to get the information. However, from the Senators' letter and warnings, we don't really know how the FISC is currently interpreting Section 215.
Regardless, every time the public receives more information, the government's surveillance powers and collection practices appear broader and more intrusive to innocent Americans' privacy than ever. Take Jane Mayer's New Yorker article on National Security Agency whistleblower Thomas Drake:
[former NSA executive William] Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.”
What is the secret interpretation of Section 215? Your guess is as good as mine, but I have no doubt Senators Wyden and Udall are right: the public will be "stunned" and "angry" when we find out.
Jesselyn Radack is National Security and Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.