Democrats Describe Secret Justice Department Spying Opinion

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Two Senate Democrats on Friday told TIME that a secret Justice Department opinion grants the FBI broad authority to seize information on innocent U.S. citizens, that it would shock Americans if it became public, and it that might violate the Constitution. “Innocent Americans are being swept up in this,” said Colorado’s Sen. Mark Udall, a member of the Intelligence Committee.

Oregon’s Ron Wyden, who also sits on that panel, said he was not allowed to say whether Attorney General Eric Holder drafted the opinion, or if Holder had adopted a relic of the Bush administration. He emphasized, however, that the Intelligence Committee only learned about the opinion on Feb. 2, 2011.

At issue is section 215 of the Patriot Act, which allows the government to vacuum up “any tangible things (including books, records, papers, documents, and other items” on U.S. citizens. The only major caveat is the government must seek the information “for an investigation to protect against international terrorism or clandestine intelligence activities.”

Udall said the attorney general has issued a legal interpretation of that section in particular. “There is a specific opinion by the attorney general on that,” Udall confirmed. “The justice department does not do this that often.”

Udall compared the Justice Department opinion, which is classified, to the Bush-era memos that twisted the law to authorize torture. “If you remember in the context of waterboarding and all that, it was the Justice Department that was telling the CIA what was allowable and what was not,” Udall said. “They issue a legal interpretation.”

Both senators described the legal interpretation as shockingly broad. “When you read that opinion, the classified opinion, and you set it down next to the text of the law, there is a big gap,” Wyden explained. “That is what this is all about.”

Wyden and Udall staged a failed attempt on the Senate floor Thursday to amend the Patriot Act and force the Obama administration to make the opinion public. They said the Intelligence Committee would hold a hearing on the issue, however, sometime soon.

Wyden said on the Senate floor that Americans would be shocked when they learned of the activities carried out under the opinion and invoked the aura of decades-old scandals, like the CIA illegally opening mail, or the Iran-Contra scandal.

Michelle Richardson, legislative council at the ACLU, says public statements from FBI officials have suggested the FBI is using the law to cast a wide net. “The way the FBI has long talked about 215 is that they fully intend to collect innocent information,” she said. “They say, ‘We don’t know who the terrorists are before we get the information.’”

Justice Department officials have said publicly that section 215 is only used around 40 times a year — and only to pursue real terrorism cases. “We have gone to great lengths to ensure that the public’s elected representatives are fully informed of the ways in which we interpret and use these authorities,” said spokesman Dean Boyd. Boyd emphasized that a court must approve the use of the authority “to determine whether they are not only allowed by statute but consistent with the Constitution of the United States.”