How Can Congress Debate a Secret Law?

Co-Authored with Senator Mark Udall (D-Colorado)

(Note: This blog was originally posted by Senators Ron Wyden and Mark Udall on Huffington Post.)

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, 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.

Text of Amendment from Senators Wyden and Udall:

Purpose: To require the Attorney General to publicly disclose the United States Government's official interpretation of the USA PATRIOT Act.

IN THE SENATE OF THE UNITED STATES--112th Cong., 1st Sess. S. 1038

To extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 until June 1, 2015, and for other purposes.

AMENDMENT intended to be proposed by Mr. WYDEN (for himself and Mr. UDALL of Colorado)

At the end, add the following: SEC. 3. REPORT ON INTELLIGENCE COLLECTION ACTIVITIES. 
(a) SENSE OF CONGRESS.--It is the sense of Congress that--

(1) in democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances; 

(2) the United States Government has an inherent responsibility to protect American citizens from foreign threats and sometimes relies on clandestine methods to learn information about foreign adversaries, and these intelligence collection methods are often most effective when they remain secret; 

(3) American citizens recognize that their government may rely on secret intelligence sources and collection methods to ensure national security and public safety, and American citizens also expect intelligence activities to be conducted within the boundaries of publicly understood law; it is essential for the American public to have access to enough information to determine how government officials are interpreting the law, so that voters can ratify or reject decisions that elected officials make on their behalf; 

(5) it is essential that Congress have informed and open debates about the meaning of existing laws, so that members of Congress are able to consider whether laws are written appropriately, and so that members of Congress may be held accountable by their constituents; 

(6) 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 a way that misinforms or misleads the public; 

(7) On February 2, 2011, the congressional intelligence committees received a secret report from the Attorney General and the Director of National Intelligence that has been publicly described as pertaining to intelligence collection authorities that are subject to expiration under section 224 of the USA PATRIOT Act (Public Law 107-56; 115 Stat. 295); and 

(8) while it is entirely appropriate for particular intelligence collection techniques to be kept secret, the laws that authorize such techniques, and the United States Government's official interpretation of these laws, should not be kept secret but should instead be transparent to the public, so that these laws can be the subject of informed public debate and consideration.

(b) REPORT.--Not later than 60 days after the date of the enactment of this Act, the Attorney General shall publish in the Federal Register a report--

(1) that details the legal basis for the intelligence collection activities described in the February 2, 2011, report to the congressional intelligence committees; and 

(2) that does not describe specific intelligence collection programs or activities, but that fully describes the legal interpretations and analysis necessary to understand the United States Government's official interpretation of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 9 seq.).