Senator Ron Wyden (D-Oregon) has made a suggestion that there is an interpretation of the Patriot Act that is different than the public commonly realizes and that is the basis of ongoing actions by the US to spy on its own citizens.
“We’re getting to a gap between what the public thinks the [Patriot Act] says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”
—Danger Room: There’s a Secret Patriot Act, Senator Says
Wired Magazine (May 25, 2011)
I recommend the entire Wired article for people to read. It’s not terribly long, but it should definitely raise your eyebrows. Here’s one more quote that should pique your interest, since it gets to the heart of the matter:
“I draw a sharp line between the secret interpretation of the law, which I believe is a growing problem, and protecting operations and methods in the intelligence area, which have to be protected,” [Wyden] says.
—Danger Room: There’s a Secret Patriot Act, Senator Says
Wired Magazine (May 25, 2011)
The matter of rationale is important. If the law is written in a way that makes the public think they’re getting one thing, but secretly the government is doing something very different, that’s incredibly bad. In our democracy, it’s critical We The People know what the government is trying to do so we can know if what it’s trying to do is what we want it to do, and so we can measure how well it’s doing it.
If Government isn’t doing what we think it’s doing, there is no useful way to know if we need to adjust its membership or processes. I wrote about this back in the 2008 election season, and I guess as the 2012 election looms, it’s time we talked about it again.
Some politician may arrive at a cynical theory that only the outcome matters, but that is not the system we have now. Due process matters in our system. For a view of the alternative, another article—coincidentally also from Wired—comes to mind: William Gibson’s Disneyland with the Death Penalty. I come back to this article often because it offers a crystal clear view of the difference between process-driven government and outcome-driven government.
And as long as I’m requoting things I’ve quoted before, let me pull out another old favorite. This one is about personal privacy, and will help me put into context some remarks I want to make about any secret interpretations of the Patriot Act:
Society tolerates all different kinds of behaviour -- differences in religion, differences in political opinions, races, etc. But if your differences aren’t accepted by the government or by other parts of society, you can still be tolerated if they simply don’t know that you are different. Even a repressive government or a regressive individual can’t persecute you if you look the same as everybody else. And, as George Perry said today, “Diversity is the comparative advantage of American society.” I think that’s what privacy is really protecting.
—John Gilmore
Computers, Freedom and Privacy Conference, 1990
In effect, if I understand Wyden correctly, he’s saying that Government is now claiming a sort of right to privacy. A right to operate in the dark because the details of how it operates ought not matter. Bad enough to have corporations getting treated like people; no way Governments should get the protections of a person. The reason people have the rights they do is so they can stand up to the aggregate power of Government. Allowing the government to have the same protections would upset that carefully designed balance of power.
To help make this even more stark, permit me to rewrite John Gilmore’s words from above, highlighting the implications of giving Government a privacy right:
The electorate allows a lot of different styles of government - differences in Party approach, differences in individual representative opinion, etc. But if the government’s differences aren’t accepted by the public or by other parts of government, they can still run unchecked if the public simply is kept in the dark about the deviation from accepted norms. Even an irate public or an angry segment of voters can’t muster the political will to effect change if tyranny looks the same as any other government policy. And, as Dick Cheney might be imagined to say at this point, “Diversity of available judicial interpretations is the comparative advantage of the American government over the will of a misguided electorate.” I think that’s what government secrecy is really protecting.
Democracy cannot withstand very much government privacy. Privacy in the execution of specific operations, perhaps. But suppose our government has chosen to make files on all of us, just in case any one of us is a bad guy. What if it reads all of our emails or taps all of our phone calls or watches all of our credit card transactions, just in case any one of us is a bad guy. How would we know? Everything about the Patriot Act is held so close to the vest, we can’t easily audit it.
Right now the public story is that Government must go through FISA courts before engaging in surveillance of suspected foreign intelligence agents. As such, only people who are really suspected are supposed to be the targets of such investigations. But I’m guessing that what Wyden is saying is that it’s gone well beyond that, and that it’s time we knew how far and had an opportunity to publicly discuss it.
It’s hard to tell, but I’m personally guessing he’s hinting that they’ve got files on all of us. Perhaps it’s the fallout of the birther conspiracy. After all, if even the President can be suspected by a large fraction of the population of being a foreigner, perhaps a foreign agent, then can it really ever be said that anyone is above suspicion? And if finding out someone is not a threat relies on first “doing research,” (that is, first delving into our personal lives), perhaps the new government position is that we’re all potential foreign agents until proven otherwise. Certainly it sounds like Wyden is leading to something like that. And that would be very different than our model of “guilty until proven innocent.”
If it’s anything even remotely like that, I agree with Wyden that we citizens should know. Because that wouldn’t be anything like what the Constitution and several of its amendments promise. As citizens of an open society, at minimum, we have a right to know under what rules we are operating.
But, alas, Congress just recently renewed various expiring provisions of the Patriot Act with barely a whisper of public debate. So much for citizen oversight.
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If you’d like to contact Senator Wyden (D-OR), click here.
To find out how your senator voted in the recent vote, click here. If you’d like to contact your senator, click here.
To find out how your representative voted in the recent vote, click here. To contact your representative, click here.
To contact President Obama, click here.
If you want to read more on this issue, in addition to just following the news, I suggest looking to the outstanding informational resources offered by the Electronic Privacy Information Center (EPIC). They’re often the ones asking the hard questions. They track information about the Patriot Act and many other privacy-related issues. They’ve filed Freedom of Information Act (FOIA) requests related to the Patriot Act as well.
In my judgment, EPIC is also worth supporting financially, if you’re among those with the economic luxury of being able to do such things. They are tireless champions of our citizens’ privacy rights.
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RomanticPoetess
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Comments
Just a short note because I need to take off, but thanks for posting.
BTW, a good friend of mine told me a while back that the U.S. faced much greater threats in its entire history (e.g., Germans, Japanese, the Soviets, etc.) than the few terrorists who want to harm us. Yet, no such laws, including those related to torture, were ever enacted. We even ‘defeated’ the Soviets without resorting to torture.
Kanuk, I'm glad you liked the article. And you're right about the history. America is a great experiment in enduring risk for the sake of the glory of freedom. We seem to have forgotten that somehow.
Tom, it won't surprise me if the Patriot Act interpretation we're talking about is somehow a reaction to those other threats you mention, although I suppose somewhere along the way that becomes the big issue—who to count as the bad guy. The problem is that there is a slippery slope between illegal and just politically unpopular. Some “crimes” are political, and when you count in selective enforcement based on politics, the effect gets magnified.
And in fact, many people have. Look at Eric Prince and his numerous iterations of Blackwater. The freight train has got quite a lot of momentum, and it's no secret that this entire apparatus is nothing more than one giant Brawny paper towel to sop up every telephone conversation or message, computer traffic of all kinds, and your ATM and credit card transactions. It's also obvious that to date, no one has stopped this monster. And no one appears to even want to stop this monster as we go off on our snipe hunt in our collective quest to cut the deficit.
The bottom line to me is, that these actions by the United States government are beginning to raise some serious legitimacy questions by both left and right elements of the USA.
For an elaboration of my thoughts, please go to my latest posting.
r
An illustration of this problem is well-presented, in my opinion, with the film Enemy of the State.
If cheating can be done, it will be done. At all levels of society. Until microchips are inserted in every human brain, the potential for practical resistance to totalitarian control will remain.
the government asserts the power to keep secrets, and one of the secrets is necessarily what matters they are keeping secret. so the people of america can never know what they don't know.
in these conditions, what purpose is served by pretending you can control them?