Senators Wyden, Feinstein and Roberts in Intelligence meeting (Kevin Lamarque/Reuters)

Senators Wyden, Feinstein and Roberts in Intelligence meeting (Kevin Lamarque/Reuters)

Senators Ron Wyden (D-OR) and Mark Udall (D-CO) have been on a tear for months about the intelligence community’s reliance on secret interpretations of surveillance law, arguing that the Justice Department has allowed for a secret interpretation of the law that is beyond the bounds of the law and allowing for broad surveillance of Americans.

They're now accusing 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 U.S. 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.

Wyden and Udall aren't buying it, as Marcy Wheeler explains.

They cite two examples of such mischaracterizations: First, when a number of Justice Department officials claimed, that the government’s authority to obtain business records or other “tangible things” under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena. [snip] As you know, Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are “analogous” they provide the public with a false understanding of how surveillance is interpreted in practice. What they don’t say, but presumably mean to suggest, is that the claim Section 215 is like a grand jury subpoena is false, since the latter are routinely used to collect the “tangible things” (and even ephemeral things like cell phone tracking data) of completely innocent people..

Much of what Wyden and Udall are concerned about comes from the classified information they have access to as members of the Intelligence committee, but that they can't share in an unclassified letter. Which leads Marcy, an expert in this, to speculate: "[W]hile the bigger issue in this letter seems to be the government’s continued pretense that warrants for surveiling innocent Americans are just like warrants for investigating suspects, I’m beginning to suspect the bigger story is the unusual means by which the Administration got 'authority' to spy on innocent Americans."