

For months, two Senators have screamed bloody murder that the government holds a secret legal interpretation of the Patriot Act so broad that it amounts to a whole different law giving the feds massive domestic surveillance powers. Now, a measure by Sens. Ron Wyden and Mark Udall would force the U.S. intelligence chief, and by extension the entire intelligence community, to admit that they went too far in their Patriot Act interpretations – if they don't find a way to wiggle out of it.

The Senate Select Committee on Intelligence meets Thursday to prepare the annual bill authorizing the U.S. intelligence agency's operations. During that "mark-up" process, Wyden and Udall will ask their colleagues to include a measure compelling the Director of National Intelligence and the Attorney General to produce a "detailed assessment of the problems posed by the reliance of government agencies" (.pdf) on "interpretations of domestic surveillance authorities that are inconsistent with the understanding of such authorities by the public." Wyden's staff provided Danger Room with a copy of the proposed amendment.

Specifically, Attorney General Eric Holder and Director of National Intelligence James Clapper would have to produce "a plan for addressing such problems" with secret legal interpretations regarding the Foreign Intelligence Surveillance Act (FISA) and the Patriot Act, the government's two most important domestic spying laws.

The bill, though, doesn't force Holder and Clapper to roll back those secret interpretations. They've just got to basically admit they've messed up. Even if Wyden and Udall can get their colleagues to sign on to their effort, it would be naive to think the nation's top prosecutor and intelligence officer are so thick that they can't find an artful way of saying they've done nothing wrong.

The irony is that this week, Clapper's office conceded to the Senate panel that they have indeed been secretly re-interpreting the Patriot Act. A letter from a Clapper aide to Wyden and Udall implied as much (.pdf), and pledged to consider making those secret interpretations public. And Tuesday, the Obama administration's nominee to lead the National Counterterrorism Center, Matthew Olsen, acknowledgedthat "some of the pleadings and opinions related to the Patriot Act" to the secret Foreign Intelligence Surveillance Court that approves snooping warrants "are classified."

Olsen, who currently serves as the top lawyer for the National Security Agency, added that "similar" secret interpretations exist for the FISA Amendments Act of 2008, which already expanded FISA's scope for what some consider blanket surveillance.

Under Wyden and Udall's amendment, Holder and Clapper would have to deliver a public assessment to the intelligence committees in the House and Senate about the perfidies of secret surveillance law within 60 days of passage.

It's entirely unclear whether they've got the votes to get their measure into the intelligence bill. Not many senators on the intelligence panel signed on to Wyden and Udall's outrage about secret expansions of the Patriot Act when they unveiled their worries in May. A vote on sending the intel bill to the full Senate could happen as early as Thursday. Even if it passes, it's essentially up to Holder and Clapper to decide how much wrongdoing they want to admit to in the letter.

"It is critical that officials of the United States not secretly reinterpret public laws in a manner that is inconsistent with the public’s understanding of such laws," Wyden and Udall's proposal reads, "and not describe the execution of such laws in a way that misinforms or misleads the public."

Photo: jonathanmcintosh/Flickr

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