Over the last year or so, we’ve been covering Senator Ron Wyden’s efforts to get Obama administration officials to come public with their secret interpretation of the Patriot Act. Wyden, of course, cannot say how they’re interpreting the Patriot Act, though there have been clues, suggesting an extremely broad interpretation, that effectively allows them to spy on Americans, in direct contrast to the way most people (including many in Congress) believe the law allows. In the past, intelligence officials have basically said that they will not reveal how they interpret the Patriot Act because they don’t want to, and doing so might reveal some of the details of how they spy on people.

Of course, keeping certain details secret concerning specific operations to monitor threats is reasonable. But a secret interpretation of the law that appears to go against what the law says directly? That’s not acceptable. If the government can just make up how it interprets laws, and then keep those interpretations secret, we no longer have representative democracy at all. We have a sham government.

Given all of this, the NY Times and the ACLU sued the government for failing to reveal its interpretation of the law under a Freedom of Information Act. The administration is now seeking to get the two lawsuits dismissed… leading Senators Wyden and Udall to send a rather direct and forceful letter to Attorney General Holder questioning this move. I’ll include a bunch of snippets below, but one key bit in this letter, which I believe is new, is the acknowledgement that further information that Wyden and Udall have come across suggest that the secret surveillance operation that makes use of this secret interpretation of the law is not even effective:

We would also note that in recent months we have grown increasingly skeptical about the actual value of the “intelligence collection operation” discussed in the Justice Department’s recent court filing regarding the pending lawsuits. 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. We will provide more detail about this skepticism in classified correspondence.

That’s a pretty pointed claim, and certainly makes clear another reason why the administration is fighting so hard against revealing the secret interpretation. They know that once people find out just how widely they’re tracking people under this bogus interpretation of the law, that not only will people be upset about it, but that the administration won’t even be able to prove that such efforts did anything to prevent terrorism in the country.

On to some other key parts of the letter:

It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existences 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.

That seems like quite an understatement. It really makes you wonder what country we live in today. I’m fine with the government keeping certain things secret — but one thing that it should never keep secret is the law itself. That’s not a democracy any more at all, a point made in the letter as well:

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 now 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 laws.

Later, the letter notes that the administration certainly has been willing to reveal this secret interpretation to some members of Congress (such as the two of them), but it appears that even many members of Congress have no idea how the administration is interpreting the law:

While the executive branch has worked hard to keep the government’s official interpretation of the Patriot Act secret from the American public it has, to its credit, provided this information in documents submitted to Congress. However, these documents are so highly classified that most members of Congress do not have any staff who are cleared to read them. As a result, we can say with confidence that most of our colleagues in the House and senate are unfamiliar with these documents, and that many of them would be surprised and angry to learn how the Patriot Act has been interpreted in secret.

Wyden and Udall are equally troubled by the insistence by the administration that it needs to keep its interpretation of these laws secret to prevent adversaries from understanding what’s being done. They point out that this is “chilling logic” as it could mean that the government could basically create all sorts of secret intelligence laws:

The crux of the Justice Department’s argument for keeping the official interpretation of the law secret is that this secrecy prevents US adversaries from understanding exactly what intelligence agencies are allowed to do. We can see how it might be tempting to latch on to this chilling logic, but we would note that it would then follow that all of America’s surveillance laws should be secret, because that would make it even harder to guess how the United States government collects information. For example, when Congress passed the Foreign Intelligence Surveillance ct in 1978 it would have been useful to keep that law secret from the KGB, so that Soviet agents would not know how the FBI was allowed to track them. But American laws should not be made public only when government officials find it convenient. They should be public all the time, and every American should be able to find out what their government thinks those laws mean.

There’s a lot more in the full letter, but it’s difficult not to be furious about the sense of entitlement the administration has over this. Keeping details of investigations secret is perfectly reasonable. But keeping a secret interpretation of the law secret — and one that lets them do much greater surveillance than what the law appears to state in plain language, is a significant problem for those who believe in a working democracy and representative government.

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