Secret laws in America

The existence of secret laws, unknown and unknowable by citizens of a country, is anathema to democracy, due process, and open government. Secret laws are tools of repressive regimes, not democracies.

But in the US today, we are subject to secret laws under the guise of secret interpretations of public laws by the Federal government. Specifically, two Senators allege that the Federal government has aggressively interpreted the application of the so-called US Patriot Act. The aggressive interpretation would alarm citizens, but the Federal government (i.e., the Obama administration) refuses to disclose its interpretation and the actions it takes based on those interpretations.

There appears to be both an ordinary use for Section 215 orders — akin to using a grand jury subpoena to get specific information in a traditional criminal investigation — and a separate, classified intelligence collection activity that also relies upon them.

The interpretation of Section 215 that authorizes this secret surveillance operation is apparently not obvious from a plain text reading of the provision, and was developed through a series of classified rulings by the Foreign Intelligence Surveillance Court.

Read this letter to Eric Holder from Senators Wyden and Udall. Stunning.

On a related noted, James Bamford, writing in Wired reports on a new, huge data center being built in Utah by the NSA, in which it notes:

… for the first time since Watergate and the other scandals of the Nixon administration—the NSA has turned its surveillance apparatus on the US and its citizens. It has established listening posts throughout the nation to collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas. It has created a supercomputer of almost unimaginable speed to look for patterns and unscramble codes. Finally, the agency has begun building a place to store all the trillions of words and thoughts and whispers captured in its electronic net. And, of course, it’s all being done in secret. To those on the inside, the old adage that NSA stands for Never Say Anything applies more than ever.

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Binney [formerly of the NSA] left the NSA in late 2001, shortly after the agency launched its warrantless-wiretapping program. “They violated the Constitution setting it up,” he says bluntly. “But they didn’t care. They were going to do it anyway, and they were going to crucify anyone who stood in the way. When they started violating the Constitution, I couldn’t stay.” Binney says Stellar Wind was far larger than has been publicly disclosed and included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts. The haul only grew from there. According to Binney—who has maintained close contact with agency employees until a few years ago—the taps in the secret rooms dotting the country are actually powered by highly sophisticated software programs that conduct “deep packet inspection,” examining Internet traffic as it passes through the 10-gigabit-per-second cables at the speed of light.

So much for transparency. So much for democracy.