Justice Dept. Accused of Misleading Public on the Patriot Act

By Charlie Savage, The New York Times

22 September 11

wo United States senators on Wednesday accused the Justice Department of making misleading statements about the legal justification of secret domestic surveillance activities that the government is apparently carrying out under the Patriot Act.

The lawmakers - Ron Wyden of Oregon and Mark Udall of Colorado, both of whom are Democrats on the Senate Intelligence Committee - sent a letter to Attorney General Eric H. Holder Jr. calling for him to "correct the public record" and to ensure that future department statements about the authority the government believes is conveyed by the surveillance law would not be misleading.

"We believe that the best way to avoid a negative public reaction and an erosion of confidence in US intelligence agencies is to initiate an informed public debate about these authorities today," the two wrote. "However, if the executive branch is unwilling to do that, then it is particularly important for government officials to avoid compounding that problem by making misleading statements."

The Justice Department denied being misleading about the Patriot Act, saying it has acknowledged that a secret, sensitive intelligence program is based on the law and that its statements about the matter have been accurate.

Mr. Wyden and Mr. Udall have for months been raising concerns that the government has secretly interpreted a part of the Patriot Act in a way that they portray as twisted, allowing the Federal Bureau of Investigation to conduct some kind of unspecified domestic surveillance that they say does not dovetail with a plain reading of the statute.

The dispute has focused on Section 215 of the Patriot Act. It allows a secret national security court to issue an order allowing the FBI to obtain "any tangible things" in connection with a national security investigation. It is sometimes referred to as the "business records" section because public discussion around it has centered on using it to obtain customer information like hotel or credit card records.

But in addition to that kind of collection, the senators contend that the government has also interpreted the provision, based on rulings by the secret national security court, as allowing some other kind of activity that allows the government to obtain private information about people who have no link to a terrorism or espionage case.

Justice Department officials have sought to play down such concerns, saying that both the court and the intelligence committees know about the program. But the two lawmakers contended in their letter that officials have been misleading in their descriptions of the issue to the public.

First, the senators noted that Justice Department officials, under both the Bush and Obama administrations, had described Section 215 orders as allowing the FBI to obtain the same types of records for national security investigations that they could get using a grand jury subpoena for an ordinary criminal investigation. But the two senators said that analogy does not fit with the secret interpretation.

The senators also criticized a recent statement by a department spokesman that "Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department." This was "extremely misleading," they said, because there are secret legal opinions controlling how Patriot Act is being interpreted - it's just that they were issued by the national security court.

"In our judgment, when the legal interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law," they wrote.

That part of the dispute appeared to turn on semantics. The department said that while the national security court's opinions interpreting the Patriot Act are classified, the law itself is public.