DOJ: Secret Interpretation Of PATRIOT Act Just Like Grand Jury Subpoena If You Ignore 'Factual Context'

from the these-are-not-the-legal-interpretations-you're-looking-for dept

A couple months ago, Senators Ron Wyden and Marc Udall — who have been banging the drum about the feds’ secret interpretation of provisions of the PATRIOT Act — asked the Justice Department to stop claiming it wasn’t a secret law. The DOJ, in the form of Assistant Attorney General Ronald Weich, has responded (embedded below) and the response can be summarized as:

There is no secret law, it’s just a classified interpretation of a public law.

As if that’s any different? The DOJ defends all this by saying:

To be sure, the FISA Court opinions and orders relevant to the use of section 215 and many other intelligence collection authorities are classified. This is necessary because public disclosure of the activities they discuss would harm national security and impede effectiveness of the intelligence tools that Congress has authorized. This is true of many other intelligence activities that our government throughout its history has carried out in a classified manner in the interest of national security. Since it is not possible to disclose these activities to the public, Congress established the Senate and House intelligence committees to ensure that Congress is able to perform its proper oversight role on behalf of the American people.

Sounds nice, but it’s actually ridiculous. No one is asking the DOJ to reveal its intelligence activities. They’re asking it to reveal its secret interpretation of the law. Even if we grant the claim that activities should be classified, the interpretation of the law should never be secret.

The DOJ also claims that since the intelligence committees are briefed on its secret interpretation, and the PATRIOT Act extensions keep passing anyway, that’s proof that Congress is fine with the secret interpretation. Of course, as Wyden has pointed out on the floor of the Senate in the past, the problem is that the vast majority of Congress has no idea how the DOJ is actually interpreting the law. They’re basing the extensions on the plain reading of the law, and the obvious implication is that the DOJ is interpreting the law way beyond what the text appears to say.

Finally, at the end of the letter, Weich tries to suggest that the info the DOJ scoops up under the PATRIOT Act really isn’t that different than what a federal prosecutor can get under a grand jury subpoena process, and in fact claims that the standard under the PATRIOT Act is higher, but then at the very end states that “the factual context” in which the PATRIOT Act is used may be different than “ordinary criminal matters.” Uh, isn’t that the whole point? The “factual context” is the difference between legal and illegal. Driving sober and driving drunk are analogous, other than the “factual context.” Withdrawing cash from a bank and robbing a bank are analogous, other than the “factual context.” Selling insurance and extorting payments are analogous, other than the “factual context.” In other words, the “factual context” is pretty key here, as it’s the entire difference between legal and illegal.

Is it any wonder that the DOJ wants to hide that factual context?

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Comments on “DOJ: Secret Interpretation Of PATRIOT Act Just Like Grand Jury Subpoena If You Ignore 'Factual Context'”

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Anonymous Coward says:

Not sure why you’re attaching such significance to Weich’s noting that the Patriot Act is used in a different “factual context.” this is true, of course (as you, Mike, well understand). The Patriot Act process in question is something that’s not supposed to be used in ordinary criminal cases. So if the factual context is an ordinary criminal case, this process wouldn’t be appropriate. If its a terrorism-related investigation, it might be. How else would you suggest Weich convey that idea concisely?

Brandt Hardin (user link) says:

Living in a Society of Fear

Under the guise of fighting terrorism, the Patriot Act was adopted WITHOUT public approval or vote just weeks after the events of 9/11. Such an unconstitutional set of laws should be abolished seeing as they violate human rights and due process. A mere 3 criminal charges of terrorism a year attributed to this act, which is mainly used for no-knock raids leading to drug-related arrests without proper cause for search and seizure. The laws are simply a means to spy on our own citizens and to detain and torture dissidents without trial or a right to council. You can read much more about living in this Orwellian society of fear and see my visual response to these measures on my artist?s blog at

AmericaWakeUpNow says:

The Patriot Act has done one thing that is for sure, It has taken away many American’s freedoms!!! And how is it that this piece of legislation was drawn up and put into play only 9 days after 911????!!! How could such legislation be written and passed in a mere 9 day period!!!
America Wake Up Now dot net and com

That Anonymous Coward (profile) says:

Re: Re:


If we don’t get this, it is going to happen again.
And then we have an “issue” somewhere, and we need to take shoes off.
Another “issue” and we need to be felt up.
Another “issue” and we can’t have liquids.

There is a large portion of the population supporting these things because they don’t travel, feel they are good people who will never be targeted, and we need to do this to be safe… the man on the tv said so.

America has turned the dial to 11 on everything.

Anyone not like us needs to be viewed with suspicion.
This lead to the birthers and the belief that the President is a secret Muslim terrorist out to turn us into a Sharia law based country.
You might laugh at these people, but they vote based on this insanity. When your demographic is willing to believe this load of crap, they will totally accept the idea that everyone needs a special butt plug put in before they get on the plane, because we have determined your sphincter tightness reveals terrorists.
Because they a “good” people it will never happen to them, until it does and then they try to justify in their mind it was totally ok for the kid who smelled like pot to be fondling his 12 yr old before getting on the plane.
Because we are winning the war on terror!

The Government is using the threat of “terrorists” to terrorize us. Other than some odd religious beliefs, they aren’t that different. We have to do this… OR THE TERRORISTS WIN! What no one figured out is the game is already over, they won. They killed people, created havoc, and gave us a reason to give up everything we are supposed to believe in. All of the money spent on preventing another 911… more people die in drunk driving accidents each year, shouldn’t we spend more on that? This is not me saying 911 was not important or tragic, but we are spending billions fighting a boogeyman who never has to do another thing. They can release some “chatter” in a poorly secured communication and get the color code dialed up at a mall and make everyone feel uneasy… we panic and freak out, but nothing happens. The Government tells us they were on top of it and kept them away… but we need you to carry see thru bags from now on so we can prevent the terrorists from winning. They won, we spend every day in fear of what new terror will befall us. We gladly do stupid things for the chance to be safer.

We forgot the rule of never become worse than the thing you hate.

AdamBv1 (profile) says:

Re: Re:

And how is it that this piece of legislation was drawn up and put into play only 9 days after 911????!!! How could such legislation be written and passed in a mere 9 day period!!!

Actually this makes me think, How WAS such a legislation drafted so fast? Do you think maybe we had some of these ideas already drawn up and it was just a matter of cobbling them together and rushing them through congress?

Anonymous Coward says:

Re: Re: No amount of 'cobbling' or 'rushing' would get that legislation created in 9 days...

There is no way the act was crafted in 9 days, it’s just not possible (even with bi-partisan support) to get everything done in that period of time.

Which suggests that the ‘PATRIOT’ act was all an act and that the legislation had already been drafted and reviewed at least once.

As a conspiracy theorist, I would say that the legislation was drafted in secret before 9/11 and was just waiting for an event to distract the public enough to push it thru, “to protect us from the Terrorists” (what they forgot to mention is that the government is the terrorist the public needs to be protected from…)

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