How secrecy erodes Democracy
By Wisconsin Representative Jim Sensenbrenner — 7/22/13
politico.com

In early June, leaked documents revealed that the U.S. government was collecting the details — if not the content — of virtually every call that every American made. President Barack Obama claimed that the PATRIOT Act gave him the authority to know whom we called, when and how long we talked.

This claim came from the same man who, as a senator, wrote, “We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.”

It appears the president now believes we are all connected to terrorists. It’s as if he’s playing Six Degrees of Kevin Bacon with our civil liberties.

Congress passed the PATRIOT Act in 2001 after a vociferous public debate. To protect against abuses, the act was scheduled to sunset — it would expire if Congress did not renew it after five years.

When it was reauthorized in 2006, Congress sought to limit the government’s warrantless access to records. Under the revised law, the government can obtain records if a court determines they are relevant to an authorized investigation into international terrorism or foreign spying.

But in a secret policy decision handed down by a secret court, the government reinterpreted the relevance requirement as an expansion of power rather than a limitation.

How can every call that every American makes be relevant? The answer is: They can’t. At a hearing before the House Judiciary Committee, FBI Director Robert Mueller argued that the administration’s request for all foreign and domestic phone records was relevant because the database of all those calls includes relevant information.

This expansive characterization of relevance makes a mockery of the legal standard. According to the administration, everything is relevant provided something is relevant. Congress intended the standard to mean what it says: The records requested must be reasonably believed to be associated with international terrorism or spying. To argue otherwise renders the standard meaningless.

In a July 16 letter, the Department of Justice offered a different interpretation of relevance. DOJ argued that, while the National Security Administration collects everyone’s phone records, it accesses only those records when it believes they are associated with terrorism. Under this procedure, however, it is the NSA rather than a court that determines what is relevant. This is inconsistent with what the PATRIOT Act requires.

The Obama administration has now charged seven people with leaking information under the Espionage Act. Prior to his administration, the act had been used only three times since 1917. To my knowledge, the president has never charged, or even reprimanded, anyone in his administration for perjury.

And misinformation has been rife. In March, Sen. Ron Wyden asked Director of National Intelligence James Clapper if the NSA collected “any type of data at all on millions or hundreds of millions of Americans?” Clapper, under oath, said no.

When the NSA’s surveillance programs first became public, Clapper said he responded in the “least untruthful” way possible. He later apologized, conceded his answer was erroneous, and said, “I simply didn’t think of Section 215 of the PATRIOT Act.” The problem is that Sen. Wyden had warned Clapper in advance that he would ask the question, and Clapper’s staff privately acknowledged to Wyden that the DNI’s response was false. So Clapper likely lied in his apology for lying.

Can we blame Americans for losing faith in their government?

In 2011, then Acting Assistant Attorney General for National Security Todd Hinnen testified to a House Judiciary subcommittee: “This authority [Section 215 of the PATRIOT Act] allows the government to obtain under FISA in a national security investigation the same types of records that can be obtained by a grand jury subpoena in an ordinary criminal investigation, though unlike a grand jury subpoena, it requires an order from the FISA Court.”

The clear implication of Hinnen’s testimony was that the authority under the PATRIOT Act is more limited than the government’s authority in a criminal investigation. Except it isn’t.

In criminal cases, courts have held that large sets of information do not meet a relevance standard because they would necessarily include nonrelevant records. This was the legal standard Congress invoked when it passed the PATRIOT Act. As acting assistant attorney general for national security, Hinnen would have known that the administration and the FISA Court had secretly redefined the term relevance in the national security context, but he nonetheless drew a misleading parallel to the criminal standard.

The government needs to have the ability to keep sensitive investigations secret, but secret laws are anathema to democracy. Public debate of a law is a charade if the government can secretly reinterpret the law without scrutiny.

This is how freedom is lost — bit by bit, one secret decision at a time, out of necessity or for some higher purpose that we later come to regret. Such abuses must be reined in, and no false trade-off between freedom and security should be allowed to be decided behind closed doors ever again.

Jim Sensenbrenner represents Wisconsin’s 5th Congressional District in the U.S. House of Representatives.