OPINION: Too Many Secrets

Remember the Robert Redford movie — “Sneakers,” the scrabble game, and “too many secrets.” Well let’s follow the Department of Justice and its response to an inquiry by two senators about our privacy.

U.S. Senators Mark Udall and Ron Wyden have written this letter to Attorney General Eric Holder, accusing the Justice department of “making misleading statements about the legal justification of secret domestic surveillance activities that the government is apparently carrying out under the Patriot Act.”

The senators contend that the government has also interpreted a provision of the Act, based on rulings by the secret national security court, as allowing some “other kind” of activity that allows the government to obtain private information about people who have no link to a terrorism or espionage.

The Senators want DOJ to release the legal interpretations they are relying on to enforce the provision. Seems like a reasonable request wouldn’t you think? — They say:

“In our judgment, when the legal interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law,” they wrote.

DOJ says, “the law isn’t secret, and therefore it’s okay to have secret interpretations.”

In other words our government says as long as a law is public, it’s okay for a secret court and the government to interpret that law in secret. To take that further, we can have a law that says you may not spy on an American citizen in this country without probable cause that your about to commit a serious crime and a Court order. The Justice department can with the advice and consent of a secret court interpret probable cause to mean — you jaywalked last year as probable cause to tap your phone, hack your personal computer, and tail you on your vacation.

DOJ takes the position that if a secret court makes this secret interpretation of the law, then their free to rely on this interpretation, and even the Senate who has constitutional oversight over the Executive and Judicial branch has no right to even know such an interpretation exists. Big Brother is watching my friends.

The Senators say secret interpretations of public laws render the laws secret. I agree.

Webb Hubbell
Webb Hubbell is the former Associate Attorney General of the United States. He is an author, lecturer, and consultant. He is the founder of the Mark of Cain Foundation, regularly writes daily meditations at www.thehubbellpew.com, and is working on a novel soon to be published.

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