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

The White House has developed a "secret law," an interpretation of the PATRIOT Act, that has several Democratic Senators up in arms. Senators Mark Udall (D-CO) and Ron Wyden (D-OR) were as explicit as they could be, given that their knowledge of the program came from their classified work in the Intelligence Committee, in the debate over the PATRIOT Act extension last week.
Udall, who supports the act generally and has voted for previous short-term extensions, said he could not vote to extend the act again as it stands. He told reporters that leadership has time and again put off calls for reform by suggesting that concerns would be addressed later, when the bill came up for longer-term extension

Udall said that given the act passed a decade ago and in light of the fact that this week’s vote would extend the most controversial provisions for years, now was the time for real debate and reform. The three provisions targeted for reform by Udall and others were set to expire Friday.

Udall was joined in his arguments by Ron Wyden from Oregon, also a member of the Intelligence Committee. In making his point, Wyden threw more light on why he and Udall and others were mounting such a strong case for reform now.

Wyden said that the executive branch had developed a legal theory unknown to the public that outlined what kind of information it could collect under at least one of the provisions the lawmakers were opposing. He said that the executive branch reading amounted to “secret law” that didn’t jibe with a straightforward reading of the text of the legislation.

"I want to deliver a warning this afternoon,” Wyden said. “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry."

Udall had three amendments which were not considered, as Reid pushed the extension through without allowing amendments. They would have required the FBI show a terrorism link when getting court permission to access credit card, phone, or other records about individuals from businesses; eliminated "roving" wiretaps that don't identify the person or phone targeted; and required law enforcement to notify Congress before beginning surveillance on individuals who are not connected with terrorist organizations or a foreign government, the so-called "lone wolf" domestic suspects.

The extension of the PATRIOT Act won't be the end, apparently, of Senate action on the "secret law" the administration is using to conduct surveillance that Wyden and Udall warn is not supported by the PATRIOT Act. That's demonstrated by a colloquy on the Senate floor engaged by Wyden, Udall and Diane Feinsten detailed here by Marcy Wheeler. The colloquy followed a meeting the night before which also included Senators Jeff Merkley (D-OR) and Sheldon Whitehouse (D-RI). Underneath all the Senate "blather," there are strong indications that Wyden and Udall will force the government to admit how it's suveilling Americans, or comply with existing law.

Make no mistake, not only did Wyden get this colloquy in the Senate record, but there appear to have been several threats hiding behind the Senate blather. DiFi has said she thinks the way to fix a secret law is to change it in a secret committee meeting. But Wyden et al have made it clear that if she doesn’t agree to fix it in her secret committee meeting, he will try to do so on the Senate floor.

And consider the role of Merkley here. He was at the meeting on Wednesday night, the only person present who is not a member of the Intelligence Committee (and who therefore did not attend the February 2 briefing that got Wyden all fired up about this). In his presence, the concerns about the program were discussed with some “specificity” (per DiFi’s description). As Wyden describes, Merkley was not only present at the meeting, but proved “he knows an incredible amount about” the problem. As part of the whole colloquy, Merkley suggests this problem is akin to letting the King enter your house, precisely what the Fourth Amendment was written to prevent.

This is a key part of the threat, I suspect. Unlike Wyden and Udall, who learned of this problem via classified briefings, Merkley appears to have figured it out on his own. Which means he can speak openly about it if there is a full Senate debate about it.

Now that implicit threat may all get buried under Senate blather. But it appears the message to DiFi is that if she doesn’t fix this secret law in her secret committee, then there will be a public discussion about whatever crazy interpretation she is helping the Administration hide.

Merkely could make that discussion public, which is why his presence in these meetings and in the colloquy is important. We're not likely to see any investigative journalists hopping on to this story, not after the way in which the administration has gone after the New York Times Jame Risen, one of the reporters to break the initial warrantless wiretapping story during the Bush administration.

These Democratic Senators are serious and cautious lawmakers. They aren't cranks and they aren't paranoid—as members of the Intelligence Committee, they've been briefed on the program that they say is not supported by the law, so they aren't making this up of whole cloth. Hopefully their efforts will either shed light on the program or by threatening to, force the administration to follow the law. A law, by the way, which is already heavily weighted on the side of government intrusion.

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