Secret Law

The USA PATRIOT Act has done much for national security efforts in the ten years since it was passed. Inter-agency cooperation has increased, criminal laws regarding the financing of terrorism have been strengthened, and investigation techniques have been modernized. As a result, U.S. law enforcement is better equipped to combat the technological and dissipated nature of terrorist threats. These achievements have been made in concert with a series of productive and healthy public debates concerning the compromising of civil liberties for the sake of national security. These debates must be allowed to continue in order to ensure that the USA PATRIOT Act remains an effective deterrent against terrorism. It is essential that all details relevant to the manner in which the USA PATRIOT Act is enforced be revealed as soon as possible, so as to minimize any possible injury such a disclosure may have to the effectiveness of the law.

Senators Ron Wyden (D-OR) and Mark Udall (D-CO), both members of the U.S. Senate Select Committee on Intelligence (SSCI), recently called attention to how the Department of Justice may be misleading the public as to how the USA PATRIOT Act is being enforced. In a letter to Attorney General Eric H. Holder Jr., they contend that the Foreign Intelligence Surveillance Court (FISC) has interpreted Section 215 of the PATRIOT Act in a manner different from its commonly understood purpose. Section 215 is referred to by the Department of Justice as the “business records” clause, since it allows the government to apply to FISC in order to seize records or information pertaining to a private individual who can be linked to a national security case.

Members of the SSCI are informed of such uses of Section 215. In their letter, Senators Wyden and Udall state that rulings of the FISC have interpreted Section 215 in a way that is very different from the Department of Justice’s characterization of Section 215 as being “like a grand jury subpoena.” Rather, they assert that it is being used to access the private information of citizens not linked to espionage or intelligence cases, in such a way that “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” Such a claim that the law is being loosely interpreted by the FISC is also corroborated by how the American Civil Liberties Union reported that “business records” seizures jumped from 21 instances in 2009 to 96 instances in 2010.

It is key to the integrity of the United States’ legal process that the explicit manner in which laws are enforced by the government is made public. The precedent exists for the government’s responsibility to clarify as much as possible the way in which the government intends to enforce laws. Perhaps most famously, the majority legal opinion resulting from the U.S. Supreme Court case Miranda v. Arizona set out clear guidelines as to how criminal suspects must be informed of their Fifth and Sixth amendment rights. The manner in which the FISC’s legal opinions have interpreted Section 215 of the USA PATRIOT Act is similarly pertinent to Fourth Amendment rights. American citizens must be made aware of what the government determines to be a reasonable search and seizure, so that they may remain confident that they are safe from “unreasonable searches and seizures.”

In their letter, the Senators mention how the Department of Justice has stated that “Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department.” But they also note how such a statement is misleading, since the NSA General Counsel testified in July of this year that important interpretations of Section 215 are contained in classified legal opinions of FISC. It is crucial that the government cease political doublespeak in order to continue relying on “secret law.” If the relevant interpretations of Section 215 are declassified, the intelligence community can capitalize on their recent successes in order to strengthen the legality of the national security apparatus.

If details of how the USA PATRIOT Act is currently being secretly interpreted by the FISC are as contentious as Senators Udall and Wyden claim, they are liable to be leaked in a manner similar to previous indiscretions taken with domestic intelligence gathering. The ensuing public reaction would not be productive for U.S. national security interests. Given the law’s proven track record, President Obama was right to sign a four-year extension of the PATRIOT Act earlier this year. But in order to prevent the debilitation of what has proven to be one of the more effective tools in the war on terror, he should also make public FISC’s secret legal opinions in which Section 215 of the USA PATRIOT Act is interpreted.

Nikhil R. Mulani ’14, a Crimson editorial writer, lives in Eliot House.