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Charlie Savage Files FOIA Complaint to Compel Release of DoJ Patriot Act Interpretation

For months now, Senators Ron Wyden and Mark Udall have spoken out about the Justice Department’s interpretation – wrongful interpretation, in their view – of the Patriot Act, which has led to some unnamed manner of mischief in terms of civil liberties deprivation through mass data collection. Wyden and Udall have implored DoJ to explain their interpretation fully and publicly to spark a debate about it, rather than just interpreting a law in secret. Udall and Wyden know about it from their work on the Senate Intelligence Committee, but they cannot say publicly what DoJ is doing. Dianne Feinstein, Chair of the Intelligence Committee, promised hearings at one point, but that has gone nowhere.

Now, the fourth estate is lending a hand to Wyden and Udall, by trying to get out the secret interpretation of the Patriot Act themselves.

Given all of this, reporter Charlie Savage of the NY Times filed a Freedom of Information Act request to find out the federal government’s interpretation of its own law… and had it refused. According to the federal government, its own interpretation of the law is classified. What sort of democracy are we living in when the government can refuse to even say how it’s interpreting its own law? That’s not democracy at all.

Julian Sanchez points us to the news that Savage and the NY Times have now sued the federal government for not revealing its interpretation of the PATRIOT Act, pointing out that if parts of the interpretation contain classified material, the Justice Department should black that out and reveal the rest, but simply refusing to reveal the interpretation entirely is a violation of the Freedom of Information Act. You can bet that the feds will do everything they can to get out of this lawsuit, just as they did with the various lawsuits concerning warrantless wiretapping. Here’s hoping the court systems don’t let them. No matter what you think of this administration (or the last one) and how it’s handling the threat of terrorism, I’m curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it’s required to operate.

The issues here are similar to the issues with the Office of Legal Counsel determining in secret that the President can authorize a US citizen for assassination, without a public review or checks and balances of any kind. Secret law is an extremely dangerous precedent; it was one of Russ Feingold’s biggest concerns when he was in Congress. He held Senate Judiciary hearings on it. He slammed the Bush Administration for engaging in it. Now the Obama Administration is doing the same, and perhaps worse.

The FOIA complaint by Charlie Savage is here. Lawfare has some interesting implications of the FOIA suit. But I think they are off about relating this to merely “legal analysis.” The interpretation of the Patriot Act has a direct implication on the implementation of the law, and it’s well within bounds for the government to explain its interpretation under those grounds, even if it’s redacted to protect sources and methods.

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David Dayen

David Dayen