Crossposted at Huffington Post.
Congress once again extended expiring provisions of the Patriot Act with very little debate. Perhaps they don't need to debate this law. After all, 10 years after its initial passage, lawmakers and voters should know what the statute says and whether they support its continued use, right? Wrong.
Turns out, it may not say what we think it says. According to members of the Senate Intelligence Committee — whose committee service means they have access to more information than the American people, and even many of their colleagues — "there is a significant discrepancy between what most people — including many Members of Congress — think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do."
According to Senators Ron Wyden (D-Or.) and Mark Udall (D-Co.), there are two versions of the Patriot Act — one that the public sees, and a more permissive one that the government keeps to itself. The existence of this secret law means that "Congress and the public are prevented from having an informed, open debate on the Patriot Act." In fact, many members of Congress "have not even seen the secret legal interpretations that the executive branch is currently relying on," according to the senators.
We've heard this song before. Justice Department memos released in 2004 and 2009 revealed that the executive branch did not consider conduct that most people would call torture to be prohibited by the laws outlawing torture. But since the executive gave the word "torture" a secret definition — i.e., that it applied only to techniques that caused the kind of pain felt during organ failure or death — public statements by government officials announcing that "the United States does not torture" proved, at the least, misleading.
But secret (and creative) interpretations of the law are not exclusive to torture. We've seen the same thing with the Patriot Act in the past, according to congressional overseers. In 2009, former Senator Russ Feingold said there "is information about the use of [surveillance authority] that I believe Congress and the American people deserve to know." Instead, "critical information about the implementation of the Patriot Act" that "would have a significant impact on the debate" has not been made public.
As the saying goes, fool me once, shame on you; fool me twice, shame on me. But what if even twice isn't enough to drive home the lesson?
To be sure, surveillance abuses may seem less egregious than torture. But the damage to democratic principles resulting from secret law is the same. There is no principle more fundamental to the design of our Republic than the idea that voters can ratify or reject decisions that elected officials make on their behalf. Absent information about the content of these decisions, the electorate can neither ensure accountability for foolish or unlawful policies nor make informed electoral decisions.
There is a pattern here that the American people ignore at their peril: extending broad powers to the executive branch, which are wielded in secret and which congressional overseers are barred from discussing with their constituency, leads — when pressure on government officials is strong enough — to excess. The very existence of laws and regulations limiting government surveillance authority recognizes this truth. These rules were designed to do away with a world in which the intelligence community had free rein to run rampant over the private lives of Americans. And the key to these rules is adequate oversight to ensure their proper implementation.
Over the past decade, however, we have allowed the intelligence community to implement surveillance laws with minimal oversight. As a consequence, executive branch officials are free to interpret their authority expansively, content in the knowledge that they likely will not be asked to justify the full scope of their actions to the pesky electorate. Congress should have taken advantage of the Patriot Act sunset to insist on more robust oversight of these powers. Instead, it extended the expiring provisions for another four years.
The chair of the Senate intelligence committee has agreed to pursue the issue of secret executive branch memos interpreting the Patriot Act and to make changes in the law if necessary. This is a critical first step. The American people deserve to hear a real debate about what government surveillance programs are really doing in their name. Only then can we make an informed, responsible decision about whether the claimed security benefits of those programs justify their costs.