Winehole23
05-25-2011, 02:54 PM
How Can Congress Debate a Secret Law?
Members of Congress are about to vote to extend the most controversial provisions of the USA PATRIOT Act for four more years, even though few of them understand how those provisions are being interpreted and applied.
As members of the Senate Intelligence Committee we have been provided with the executive branch's classified interpretation of those provisions and can tell you that we believe there is a significant discrepancy between what most people - including many Members of Congress - think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do.
Legal scholars, law professors, advocacy groups, and the Congressional Research Service have all written interpretations of the Patriot Act and Americans can read any of these interpretations and decide whether they support or agree with them. But by far the most important interpretation of what the law means is the official interpretation used by the U.S. government and this interpretation is - stunningly -classified.
What does this mean? It means that Congress and the public are prevented from having an informed, open debate on the Patriot Act because the official meaning of the law itself is secret. Most members of Congress have not even seen the secret legal interpretations that the executive branch is currently relying on and do not have any staff who are cleared to read them. Even if these members come down to the Intelligence Committee and read these interpretations themselves, they cannot openly debate them on the floor without violating classification rules.
This is not acceptable. Americans recognize that their government can better protect national security if it is sometimes allowed to operate in secret and they do not expect to know all of the details about how government agencies collect intelligence. But Americans also expect their government to operate within the boundaries of publicly-understood law. As voters they have a need and a right to understand what those boundaries are so that they can ratify or reject decisions that elected officials make on their behalf.
In a democratic society, government agencies derive their power from the public's trust - what James Madison called a "Fountain of Authority." Secret laws undermine that trust and authority, which then erodes and ultimately damages our ability to fight terrorism and protect the American people.
As we saw with the Bush Administration's warrantless wiretapping program, secret laws and programs don't stay secret forever. And when the public learns that government officials have been rewriting the law in secret, the public confidence is undermined making it harder for government agencies to function effectively. When Americans learned that the Bush Administration had been relying on secret interpretations of the law to justify warrantless wiretapping many were shocked and the result was a public backlash whose impact is still being felt today.
Yesterday, we filed an amendment (http://1.usa.gov/lXozx1), along with Senator Merkley of Oregon and Senator Udall of New Mexico (the text of which is below) stating the Sense of Congress that: "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 ways that misinforms or misleads the public."
Our amendment would require the Attorney General to make public the U.S. government's official interpretation of the Patriot Act. This would not disclose specific intelligence collection programs or activities, but it would make the boundaries of the law clear to the public, so that Americans can thoughtfully consider for themselves whether these boundaries are appropriately drawn and hold their elected officials accountable for them.
Members of Congress may have a variety of different views about the authorities granted by the USA Patriot Act, but we hope that all of our colleagues will agree that allowing government officials to write secret laws is a problem, and that being honest with the public is the only solution.
http://www.huffingtonpost.com/sen-ron-wyden/how-can-congress-debate-a_b_866920.html
Members of Congress are about to vote to extend the most controversial provisions of the USA PATRIOT Act for four more years, even though few of them understand how those provisions are being interpreted and applied.
As members of the Senate Intelligence Committee we have been provided with the executive branch's classified interpretation of those provisions and can tell you that we believe there is a significant discrepancy between what most people - including many Members of Congress - think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do.
Legal scholars, law professors, advocacy groups, and the Congressional Research Service have all written interpretations of the Patriot Act and Americans can read any of these interpretations and decide whether they support or agree with them. But by far the most important interpretation of what the law means is the official interpretation used by the U.S. government and this interpretation is - stunningly -classified.
What does this mean? It means that Congress and the public are prevented from having an informed, open debate on the Patriot Act because the official meaning of the law itself is secret. Most members of Congress have not even seen the secret legal interpretations that the executive branch is currently relying on and do not have any staff who are cleared to read them. Even if these members come down to the Intelligence Committee and read these interpretations themselves, they cannot openly debate them on the floor without violating classification rules.
This is not acceptable. Americans recognize that their government can better protect national security if it is sometimes allowed to operate in secret and they do not expect to know all of the details about how government agencies collect intelligence. But Americans also expect their government to operate within the boundaries of publicly-understood law. As voters they have a need and a right to understand what those boundaries are so that they can ratify or reject decisions that elected officials make on their behalf.
In a democratic society, government agencies derive their power from the public's trust - what James Madison called a "Fountain of Authority." Secret laws undermine that trust and authority, which then erodes and ultimately damages our ability to fight terrorism and protect the American people.
As we saw with the Bush Administration's warrantless wiretapping program, secret laws and programs don't stay secret forever. And when the public learns that government officials have been rewriting the law in secret, the public confidence is undermined making it harder for government agencies to function effectively. When Americans learned that the Bush Administration had been relying on secret interpretations of the law to justify warrantless wiretapping many were shocked and the result was a public backlash whose impact is still being felt today.
Yesterday, we filed an amendment (http://1.usa.gov/lXozx1), along with Senator Merkley of Oregon and Senator Udall of New Mexico (the text of which is below) stating the Sense of Congress that: "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 ways that misinforms or misleads the public."
Our amendment would require the Attorney General to make public the U.S. government's official interpretation of the Patriot Act. This would not disclose specific intelligence collection programs or activities, but it would make the boundaries of the law clear to the public, so that Americans can thoughtfully consider for themselves whether these boundaries are appropriately drawn and hold their elected officials accountable for them.
Members of Congress may have a variety of different views about the authorities granted by the USA Patriot Act, but we hope that all of our colleagues will agree that allowing government officials to write secret laws is a problem, and that being honest with the public is the only solution.
http://www.huffingtonpost.com/sen-ron-wyden/how-can-congress-debate-a_b_866920.html