J. D. Heyes
May 22, 2012
An open society is a free society, and the media’s primary job in helping to maintain a free, open society is to shine the light of scrutiny on government. In doing so the media lives up to its (supposed) mantra ofafflicting the comfortable and comforting the afflicted. The only thing that could possibly get in the way of that mission is, of course, the government, through one of its surrogates in the federal court system.
In an effort to shed some light on how the government interprets its own PATRIOT Act, New York Times reporter Charlie Savage filed suit against the federal government last fall to get some answers after a Freedom of Information request was shot down by the Justice Department, which said the interpretation was “classified.”
His suit followed several earlier warnings by Democratic Sens. Mark Udall of Colorado and Ron Wyden of Oregon, members of the Senate Intelligence Committee, who said in a letter to Attorney General Eric Holder Jr. in September they believe the public has been misled about how the government is interpreting the law.
Too secret to disclose?
“We believe that the best way to avoid a negative public reaction and an erosion of confidence in U.S. intelligence agencies is to initiate an informed public debate about these authorities today,” they 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.”
Savage agrees, and tried to sue the government to get some answers. He believes – correctly – that the public should know what the enforcement parameters are for such a wide-ranging “terrorism” law.
But U.S. District Court William H. Pauley III disagrees, writing in a recent rejection of Savage’s suit that the government’s anti-terrorism efforts, which are supposedly authorized in the act, are too secret to disclose.
“Section 215 of the Patriot Act authorizes the Government to apply to the Foreign Intelligence Surveillance Court for an order directing the production of ‘any tangible things’ for certain investigations,” Pauley wrote in his dismissal. “The Government contends that its use of this authority is critical to countering national security threats. It represents that public disclosure of the Report would expose sensitive intelligence sources and methods to America’s adversaries and therefore harm national security.”
The oldharm national securityexcuse again. Where have we heard that before?
Light burden of proof for Uncle Sam?
Savage, along with the American Civil Liberties Union, a co-plaintiff in the case, argued that Wyden and Udall have made statements on the public record contradicting the judge’s finding. For instance, Savage – in a March 18 story – said that Udall and Wyden told him Americans would be “stunned” and “angry” to know just what Uncle Sam believes the PATRIOT Act actually authorizes the government to do.
“We would also note that in recent months we have grown increasingly skeptical about the actual value of the ‘intelligence collection operation,’” the senators said, as reported by Savage. “This has come as a surprise to us, as we were initially inclined to take the executive branch’s assertions about the importance of this ‘operation’ at face value.”
Furthermore, Pauley doesn’t believe the government’s “burden of proof” is light, and that its claim of privilege under the law takes precedence to, say, the Constitution.
“This Court credits the government’s assertion that disclosing this information could enable America’s adversaries to develop means to degrade and evade the nation’s foreign intelligence collection capabilities,” Pauley wrote after examining Sect. 215 in private. “This Court’s in camera review confirms that disclosing the Report would reveal and potentially compromise intelligence sources and methods.”
In September, The New York Times reported that the senators criticized a Justice Department spokesman’s statement saying “Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department.”
Wyden and Udall said that characterization is “extremely misleading” 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,” the Times reported.
So much for a free and open society.
Sources for this article include:
This article was posted: Tuesday, May 22, 2012 at 2:43 am