In Context: the Wyden-Udall letters on government secrecy

Are the phone records of millions of Americans being compiled in a secret government database? A court order disclosed by the British newspaper The Guardian newspaper on June 5 seems to point in that direction.

The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs Verizon to turn over phone records daily to the National Security Agency. (Vinson is a Florida federal court judge who ruled the health care law unconstitutional in 2011.)

The basis for the order: section 215 of the Patriot Act, the law that gave the government new powers after the terrorist attacks of 9/11.

News reports on the disclosure so far show President Barack Obama’s administration isn’t disputing the existence of the order. Civil libertarians have long warned the government was likely gathering phone records of Americans for a massive database, including under the administration of President George W. Bush.

Meanwhile, the disclosure gave new relevance to warnings from Democratic U.S. Sens. Ron Wyden of Oregon and Mark Udall of Colorado. In a September 2011 letter to Attorney General Eric Holder, Wyden and Udall warned that the public was being misled about the legal authority the government was relying on to conduct domestic surveillance. In a March 2012 letter, they again criticized the administration for attempting to dismiss lawsuits under the Freedom of Information Act that seek more information on secret orders.

Below is the text of the 2011 and 2012 letters outlining the senators’ concerns that Justice Department officials were making misleading comments that were contradicted by classified information.

September 21, 2011

The Honorable Eric Holder
Attorney General
United States Department
Washington, D.C. 20530

Dear Attorney General Holder:

As you know, 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.

We believe that policymakers can have legitimate differences of opinion about what types of domestic surveillance should be permitted, but we also believe that the American people should be able to learn what their government thinks that the law means, so that voters have the ability to ratify or reject decisions that elected officials make on their behalf.

Unfortunately, however, the decision to classify the government’s interpretations of the law itself makes an informed debate on this issue impossible. Moreover, the absence of publicly available information about the government’s understanding of its authorities increases the risk of the public being misled or misinformed about the official interpretation of public laws.

While we are sure that you would agree that government officials should not describe government authorities in a way that misleads the public, during your tenure Justice Department officials have -- on a number of occasions -- made what we believe are misleading statements pertaining to the government’s interpretation of surveillance law.

The first set of statements that concern us are the repeated claims by Justice Department officials that the government’s authority to obtain business records or other ‘tangible things’ under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena. This comparison -- which we consider highly misleading -- has been made by Justice Department officials on multiple occasions, including in testimony before Congress. As you know, Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are "analogous" they provide the public with a false understanding of how surveillance law is interpreted in practice.

More recently, we were troubled to learn that a Justice Department spokesman stated that "Section 215 [of the Patriot Act] is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department." This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions -- and the legal interpretations they contain -- continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law.

Again, we hope you will agree that misleading statements of this nature are not in the public interest and must be corrected. Americans will eventually and inevitably come to learn about the gap that currently exists between the public’s understanding of government surveillance authorities and the official, classified interpretation of these authorities. We believe the best way to avoid negative public reaction and an erosion of confidence in US intelligence agencies is to initiate an informed public debate about these authorities today. However, if the executive branch is unwilling to do that, then it is particularly important for government officials to avoid compounding the problem by making misleading statements such as the ones we have described here.

We urge you to correct the public record with regard to these statements, and ensure that everyone who speaks for the Justice Department on this issue is informed enough about it to avoid similarly misleading statements in the future.

Thank you for your attention to this matter.

Sincerely,

Ron Wyden

United States Senator

Mark Udall

United States Senator

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March 15, 2012

The Honorable Eric Holder
Attorney General
United States Department
Washington, D.C. 20530

Dear Attorney General Holder:

We have discussed the dangers of relying on secret interpretations of public laws with
you on multiple occasions, both through correspondence and in person. While we know
that you are generally aware of our views on this subject, we feel obliged to comment
specifically on the Justice Department's recent attempt to seek dismissal of two lawsuits
that have been filed under the Freedom of Information Act and that specifically pertain to
this problem of secret law.

The two lawsuits (filed by the New York Times and the American Civil Liberties Union) seek to obtain about how the United States government has interpreted the text of the USA Patriot Act. specifically section 215 of that Act, the controversial "business records" provision.

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.

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 state 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.

A number of the senators who are familiar with these secret legal interpretations (including the two of us) have pressed the executive branch to declassify these interpretations so that Congress and the public can have an informed debate about the proper scope of the law. We have personally raised this issue in meetings, hearings, and correspondence (both classified and unclassified) with senior officials (including you) on many occasions over the years, thus far to no avail. It was initially encouraging when the Department of Justice and the Office of the Director of National Intelligence wrote to Senator Rockefeller and Senator Wyden in August 2009 to announce the establishment of a regular process for reviewing, redacting and releasing significant opinions of the FISA Court. Two and a half years later, however, this "process" has produced literally zero results. Not a single redacted opinion has been released.

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 Act 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.

We recognize that this obligation to be transparent with the public can be a challenge, but avoiding that challenge by developing a secret body of law is not an acceptable solution.

The Justice Department's motion to dismiss these Freedom of Information Act lawsuits argues that it is the responsibility of the executive branch to determine the best way to protect the secrecy of intelligence sources and methods. While this is indeed a determination for the executive branch to make, we are concerned that the executive branch has developed a practice of bypassing traditional checks and balances and treating these determinations as dispositive in all cases. ln other words, when intelligence officials argue that something should stay secret, policy makers often seem to defer to them without carefully considering the issue themselves. We have great respect for our nation's intelligence officers, the vast majority of whom are hard-working and dedicated professionals. But intelligence officials are specialists -- it is their job to determine how to collect as much information as possible, but it is not their job to balance the need for secrecy with the public's right to know how the law is being interpreted. That responsibility rests with policy makers, and we believe that responsibility should not be delegated lightly.

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.

We hope that you will reconsider the Justice Department's stance on the issue of secret legal interpretations, as we continue to believe that this stance is contrary to core principles of American democracy and will serve our nation quite poorly over the long term. Thank you for your attention to this matter.

Sincerely,

Ron Wyden

United States Senator

Mark Udall

United States Senator