Updated below
An amendment offered on May 24 by Sen. Ron Wyden would have challenged the Administration’s reliance on what he called “secret law” and required the Attorney General to explain the legal basis for its intelligence collection activities under the USA PATRIOT Act. But that and other proposed amendments to the PATRIOT Act have been blocked in the Senate.
“The public will be surprised… when they learn about some of the interpretations of the PATRIOT Act,” Sen. Wyden said, based on his access to classified correspondence between the Justice Department and the Senate Intelligence Committee.
“U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public.”
“We can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used,” Sen. Wyden said. “But I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means.”
But the Senate moved toward cloture on reauthorization of the PATRIOT Act provisions and the Wyden amendment, which was co-sponsored by several Senate colleagues, was not permitted to be offered or to be voted upon.
The House Judiciary Committee issued a report last week on the reauthorization of surveillance provisions in the USA PATRIOT Act, with a lengthy dissent from the minority members of the Committee. See “FISA Sunsets Reauthorization Act of 2011,” House Report 112-79, part 1, May 18, 2011.
In 2008, then-Sen. Russ Feingold chaired a Senate Judiciary Committee hearing on “Secret Law and the Threat to Democratic and Accountable Government.”
Update: On May 26, Senators Wyden, Udall, Merkley, and Feinstein engaged in a colloquy on secret law and noted an agreement with Senator Feinstein to hold hearings on the matter in the Senate Intelligence Committee. Senators Wyden and Udall spoke further on the subject here.
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