Privacy SOS

What’s secret stays secret

A year ago Senate Intelligence Committee members Ron Wyden of Oregon and Mark Udall of Colorado warned their colleagues about a secret interpretation of Section 215 of the USA PATRIOT Act. This so-called “library provision” enables government agents to get a secret FISA court order enabling them to demand “any tangible things” from a library, bookstore, doctor, internet service provider, university, rental car company or other business. 

“Many members of Congress,” stated Sen. Wyden on May 26, 2001, “have no idea how the law is being secretly interpreted by the executive branch.”

Sen. Udall added, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”

Both Senators supported The New York Times and ACLU in their efforts to force a public disclosure of a classified report to the Intelligence Committee from the Attorney General and Director of National Intelligence on the use being made of Section 215.

On May 17, 2012 their FOIA lawsuits were thrown out by Judge William Pauley III of the District Court for the Southern District of New York. 

After secretly reviewing contents of the classified report, the judge agreed with the Justice Department that it should be kept secret. He stated that its public disclosure could harm national security by exposing sensitive intelligence sources and methods and “could enable America’s adversaries to develop means to degrade and evade the nation’s foreign intelligence collection capabilities.”

Furthermore, the judge claimed, it is up to the executive branch – not the judiciary – to weigh factors that determine whether disclosing information could lead to an unacceptable risk.

So if you think it is the role of the judiciary to decide when the government is acting unconstitutionally, think again. And if you think the USA PATRIOT Act represents an unconstitutional power grab that violates your rights to be free from unreasonable searches and seizures, ponder this: behind the PATRIOT Act is a shadow PATRIOT Act. It is reportedly derived from classified FISA court rulings which we the people and the Congress that rapidly passed the Act in the aftermath of 9/11 can know nothing about. 

That’s what passes for democracy these days.

© 2021 ACLU of Massachusetts.