Wyden and Udall Want Obama to Admit to Secret Collection Program

Ron Wyden and Mark Udall have an amendment to the PATRIOT Act that makes it clear the Obama Administration briefed the Intelligence Committees in February on an intelligence collection program, conducted under PATRIOT authority, that interprets the language of the law so broadly as to mean something it really doesn’t say. The amendment reads, in part,

(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.

(b) REPORT.—Not later than 60 days after the date of the enactment of this Act, the Attorney General shall publish in the Federal Register a report—

(1) that details the legal basis for the intelligence collection activities described in the February 2, 2011, report to the congressional intelligence committees; and

(2) that does not describe specific intelligence collection programs or activities, but that fully describes the legal interpretations and analysis necessary to understand the United States Government’s official interpretation of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

In short, Eric Holder and James Clapper came to SSCI on February 2 and told the committee about a way the government was broadly interpreting FISA and the powers expiring next Monday.

This Amendment would require Holder to admit to what the government was doing, in broad terms, without revealing what kind of surveillance was going on.

This probably pertains to the Section 215 authorities; we know they’re using it to construct databases of people who buy hydrogen peroxide and acetone. But I would bet there’s a more generalized collection program that results in more databases they can mine. A very good guess would be using geolocation data from cell phones to collect information on the whereabouts of Americans.

Don’t you think the time to press for such admissions is before this shit gets re-upped for another four years?

Update: Apparently this isn’t even among the amendments Reid is pulling parliamentary maneuvers to avoid even discussing. So I guess this is just an effort to wave a flag saying, “PATRIOT isn’t what it says it is?”

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. MadDog says:

    Would you guess this is another secret OLC opinion that neither Congress nor the public is even aware of?

    • MadDog says:

      What I find curious is the insistence in Senators Wyden’s and Udall’s amendment that “the Attorney General shall publish in the Federal Register a report…”

      Why the insistence on publishing in the Federal Register?

      If it were just a matter of Congress not having seen the “legal basis”, they would just ask for it for themselves.

      The fact that Senators Wyden and Udall want it published in the Federal Register seems to say to me that the “legal basis” for these specific intelligence collection programs and activities is so odious, the Senators want to ensure that it becomes a matter of public discussion and criticism.

      • emptywheel says:

        I suspect part of it is the admission that “related to a terrorist organization” means “we collect this information on the entire country.”

        But again, that’s been true for some time.

  2. MadDog says:

    Just an off-the-wall set of ruminations here, but consider Section 217.

    Given the definition of all the stuff in Section 217, I could easily imagine the US government making deals/strong arming both financial networks (SWIFT comes to mind, but VISA and MasterCard as well), ISPs, and email providers (Comcast, Google, Microsoft, etc.) for the total hoovering of everything without needing even a FISA warrant.

    According to Section 217, all that is basically required is that “the owner or operator of a “protected computer” authorizes such interception…”

  3. lefty665 says:

    A very good guess would be using geolocation data from cell phones to collect information on the whereabouts of Americans.

    Let’s see, with what we know, what can be reasonably inferred… 100% intercepts + phones squawking geolocations + surveillance cameras + overhead imaging = potential to create and maintain individual moving plots with multiple views in near real time.

    Add the story about mistaken targeting last year based on cell phone intercepts. Anyone care to speculate on integration with weapons control systems? The joystick jockeys may be well on the way to becoming as obsolete as real pilots.

  4. MadDog says:

    Latest news via AP:

    Senate moves to force vote on Patriot Act

    The Senate on Tuesday moved toward approval of a four-year extension of a contentious anti-terrorism law after Senate leaders cut off efforts by both conservatives and liberals to change aspects of the law they said were a threat to civil and privacy rights.

    Sen. Majority Leader Harry Reid, D-Nev., used a procedural tactic to deny any amendments after failing to reach a deal with opponents of the bill on what amendments should be allowed. “I have to get this done,” Reid said. “We can’t let this expire…”

  5. lurkinlil says:

    A bit OT:

    we know they’re using it to construct databases of people who buy hydrogen peroxide

    Oh sh*t, my two great danes got skunked on Saturday night, and I bought 4 quarts of peroxide on Sunday to get rid of the smell (1 qt hydrogen peroxide + 1/4 c. baking soda + 1 tsp dish soap. Lather, marinate, rinse and repeat). And I paid for it with my VISA card!!!!!

    I wonder if that is why there was a black helicopter overhead today.

  6. bobschacht says:

    Thanks for this report, EW. I guess we need to rally support for Wyden/Udall, even if there’s no hope that it will be passed.

    Bob in AZ

  7. powwow says:

    Christopher Soghoian wrote an important post building off this one, and off the valuable remarks of Senate Intelligence Committee members Mark Udall and Ron Wyden yesterday (who have now, like every member of the Senate except Harry Reid, been denied the opportunity to amend the PATRIOT Act this week).

    I second Chris’s recent tweet:

    Dear mainstream media: Four Senators have complained about secret uses and abuses of the Patriot Act. Please cover this. http://is.gd/2t2dd2
    1 hour ago

    From his post (which pulls together the various statements at issue):

    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.

    [Still can’t comment here via Opera (although I can at MyFDL).]

    • mzchief says:

      Yup, your point regarding http://is.gd/2t2dd2 is worth a post. So are the 4 Senators complaining only Wyden, Udall, Feingold and Durbin? Where the heck are the rest of the Democratic Senators and Bernie Sanders?

      For the sake of at least temporarily access to myFDL, why not go ahead and install Mozilla Firefox? You can have more than one browser loaded on your computer at a time. It has security features and is easy to use.

      • powwow says:

        I used Firefox to post that (and this) comment, mzchief (because I can no longer do so with Opera). I can still use Opera to post on MyFDL, however.

        Rand Paul (joined in turn by Tom Udall of NM, Jim DeMint of SC, and Mike Lee of UT) is now speaking at length on the Senate floor about the PATRIOT Act:

        http://c-span.org/Live-Video/C-SPAN2/

        [On edit: Senator Paul was on the floor from about 2:20 until 3 p.m. (he gave up some of his time to Max Baucus, whose remarks about Afghanistan carried over into the hour that Paul had been granted under a Unanimous Consent Agreement), and rightly emphasized that the Senate majority is “afraid to debate” this legislation. He indicated that an amendment of his addressing the searching or collection of gun ownership records was of particular concern (apparently mostly to Democrats), because Senators did not want to have to go on record, one way or the other, about a gun-related issue. As I just quoted Mitch McConnell quoting Dick Durbin, in a comment at MyFDL: “If you don’t like casting tough votes, then don’t run for the U.S. Senate.” Or, in line with the vanishing public deliberation in the Senate as presently operated by Durbin’s Party, if you don’t like casting any public votes whose outcome is not a foregone conclusion, then you deserve to be hounded from your U.S. Senate seat in shame and disgrace.]

        • mzchief says:

          Thank you for the narratives/commentary, pow wow. I’ve been reading them here and on Glenn-zilla’s webpages. Impressive and helpful for improved understanding! :-)

  8. Gitcheegumee says:

    I’m curious as to how the proliferation of fusion centers and the increasing accessibility to their data by corporate and private sector interests plays into this.