Senators hint at DOJ's secret reinterpretation and use of Section 215 of the Patriot Act

Summary

According to two Democratic Senators, the Department of Justice has secretly reinterpreted a controversial provision contained in the USA Patriot Act to give the government surveillance powers that are "inconsistent with the public’s understanding of these laws." The senators also accuse DOJ of misleading the American public when describing the use of this legal authority.

This disclosure builds on previous cryptic statements from DOJ officials regarding the use of "Section 215" powers for "sensitive collection program," and Senator Russ Feingold regarding repeated abuses of Section 215 that he was not permitted to publicly describe.

Although FBI Director Robert Mueller revealed earlier this year that the FBI has used Section 215 powers to monitor the sale of hydrogen peroxide, such data collection is unlikely to be the "sensitive collection program" about which several senators have tried to alert the public.

If I had to make a wild guess, I suspect it is likely related to warrantless, massive scale collection of geo-location information from cellular phones.


Secret reinterpretations of the law

Marcy Wheeler reported this evening that Senators Wyden and Udall, both of whom are on the Intelligence committee have submitted an amendment (pdf) as part of the rushed, bipartisan effort to reauthorize Patriot Act. The amendment is noteworthy not because of the changes to the law it proposes, but the information it reveals:

(6) United States Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws, and should not describe the execution of these laws in a way that misinforms or misleads the public;

(7) On February 2, 2011, the congressional intelligence committees received a secret report from the Attorney General and the Director of National Intelligence that has been publicly described as pertaining to intelligence collection authorities that are subject to expiration under section 224 of the USA PATRIOT Act (Public Law 107–56; 115 Stat. 295); and

(8) while it is entirely appropriate for particular intelligence collection techniques to be kept secret, the laws that authorize such techniques, and the United States Government’s official interpretation of these laws, should not be kept secret but should instead be transparent to the public, so that these laws can be the subject of informed public debate and consideration.

For those of you who don't read legalese, this means that the Department of Justice has secretly reinterpreted a controversial provision in the Patriot Act, likely Section 215, and is using it in a way that is inconsistent with the public's understanding of the law.

DOJ has already admitted that Section 215 is being used for a "sensitive collection program"

On September 22, 2009, Todd Hinnen, then the Deputy Assistant Attorney General for law and policy in DOJ’s National Security Division testified before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties in support of the reauthorization of key provisions of the USA PATRIOT Act.

During his oral testimony, Mr. Hinnen stated that:

"The business records provision [Section 215] allows the government to obtain any tangible thing it demonstrates to the FISA court is relevant to a counterterrorism or counterintelligence investigation.

This provision is used to obtain critical information from the businesses unwittingly used by terrorists in their travel, plotting, preparation for, communication regarding, and execution of attacks.

It also supports an important, sensitive collection program about which many members of the subcommittee or their staffs have been briefed."

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."

Conclusion

Clearly, there are many unanswered questions - we do not know what kind of data collection is occurring, and why it is problematic enough to cause four senators to speak up publicly. However, given that four senators have now spoken up, this strongly suggests that there is something seriously rotten going on.