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The Patriot Act's Secret Authority

On May 26, Congress approved a four-year extension of major surveillance powers in the PATRIOT Act by wide margins in both the House and the Senate. President Obama, who was in Europe at the time, had the bill signed into law with his autopen just before the surveillance powers were set to expire.

The extension allows the government to continue to use roving wiretaps across multiple devices and carriers, examine financial records without having to show a connection to terrorism, and to conduct surveillance of “lone wolf” suspects who have no known ties to foreign powers or terrorist groups. Attorney General Eric Holder told the Senate Judiciary that even though we wounded Al Qaeda by killing Osama bin Laden, “Now more than ever we need access to the crucial authorities in the PATRIOT Act.”

What’s alarming is that we don’t really know what those authorities actually entail. During the debate over the extension of those powers, Sen. Jeff Merkley complained that “the government won’t even tell the American people how it interprets these provisions, or whether it sees any limits on its authority at all.” And Sen. Ron Wyden (D-OR), a member of the Senate Intelligence Committee said that the executive branch had developed a secret legal interpretation of a key provision of the PATRIOT Act that was at odds with a plain reading of the language of the law.

While he couldn’t say exactly what he was talking about since it is classified, Wyden said that he was particularly concerned about the provision that allows the government to obtain financial records from businesses without showing a connection to terrorism. Wyden compared the administration’s actions to the FBI’s domestic spying program that came to light in the 1970s, the Iran-Contra scheme in the 1980s, and the Bush administration’s secret use of warrantless wiretaps that exceeded even the powers granted by the PATRIOT Act. “When the American people find out how their government has secretly interpreted the PATRIOT Act, they will be stunned and they will be angry,” Wyden said. Another Intelligence Committee Member, Sen. Mark Udall (D-CO), agreed, saying that “Americans would be alarmed if they knew how this law is being carried out.”

Sen. Patrick Leahy (D-VT) pushed for an amendment, which had bipartisan support on the Judiciary Committee, that would increase oversight of how PATRIOT Act powers are being used. But Senate Minority Leader Mitch McConnell (R-KY) kept it from coming to a vote. Both the ACLU and the EFF have filed Freedom of Information Act requests to force the release of information on how the law is being interpreted and used so that Congress and the public can evaluate it. Libertarian Sen. Rand Paul (R-KY) took to the floor of the Senate to object that we were in danger of permanently giving up our Fourth Amendment protection against unreasonable searches and seizures out of fear of terrorism.

It’s all happening quietly and in secret, but the fact is that we have gradually developed an enormous and largely unsupervisable national security bureaucracy. Neither the Congress nor the public knows what that bureaucracy is doing or even what it is allowed to do. Yale Law Professor Jack Balkin may have been right when he told Jane Mayer recently that “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state.”

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