President Obama's response to the troubling news of indiscriminate government collection of communication information is meant to be reassuring: the NSA is operating under supervision by all three branches of government. Even if this were true, and it is not, this purported defense should make us more nervous, not less, because it suggests that, in Washington, it has become business as usual to withhold basic information from the American public about what powers of surveillance the government claims it can lawfully use.
The secret court that apparently authorized this program operates nothing like the judicial branch contemplated by our Constitution as a check on abuses of governmental power and neutral evaluator of whether governmental conduct complies with the Constitution. Its decisions are made in secret and not generally subject to appellate review, and no one other than the government appears who could counter the government's arguments. Instead of functioning like an independent court, these secret courts act as a rubber stamp, having denied only 10 applications in the last eleven years, while approving more than 15,000.
As for the legislative branch, it's unclear what Congress knew -- or, more precisely, how many in Congress really knew. In 2012, Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) wrote to Attorney General Holder about "the dangers of relying on secret interpretations" of the Patriot Act. They warned that, because the documents outlining the administration's interpretations of the law were so highly classified, "we can state with confidence that most of our colleagues in the House and Senate are unfamiliar with these documents, and that many of them would be surprised and angry to learn how the Patriot Act has been interpreted in secret."
Moreover, because of the rules regarding the discussion of classified information, members of Congress were strictly limited in what they could say publicly. Senators Wyden and Udall, both members of the Senate Select Committee on Intelligence, grew increasingly worried about the government's interpretation and application of Section 215, but could do no more than publicly hint at their concerns. As a result, their warnings went largely ignored by the public, which couldn't decipher them.
This gets to the broader issue of what the public deserves to know. In their letter to Holder, the senators stated:

We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn't know what its government thinks the law says.

They concluded that "Americans expect their government to operate within the boundaries of publicly-understood law, as voters they have a need and a right to know how the law is being interpreted, so they can ratify or reject decisions made on their behalf."
President Obama has worked to keep the public in the dark about his administration's interpretation of the Patriot Act. His Department of Justice has sought to dismiss lawsuits brought by the N.Y. Times and the A.C.L.U. to obtain information about how the government interprets the PATRIOT Act as well as other laws and policies undertaken in the name of national security, usually claiming that secrecy is necessary to protect our national intelligence sources and methods and prevent our enemies from learning about them.
We must be able to question how much secrecy is consistent with our democratic values. For democracy to work -- for the people to hold their representatives accountable for how they run the government -- the people have to know what their government actually claims the authority to do in their name. While actual sources and methods used in any particular investigation may need to be kept secret, it is quite another thing to suggest that the very laws under which our government operates can be withheld from the public.
The debate we are now having about government surveillance -- to ensure that the government is complying with publicly enacted law and acting consistent with American values -- has become possible only because of "unauthorized disclosures" to the press. But instead of calling for investigation of whistleblowers, we should ask why our government officials were not the ones to disclose freely how they interpreted and applied the Patriot Act. That should give us all real pause, because our political system doesn't rest on just the separation of powers between our three branches of government. It relies on we the people to be the ultimate checks and balances.
It is scandalous that the president didn't see the need for the debate earlier, and bring it to the public's attention himself. If the president truly welcomes this debate about surveillance, as he has now indicated, he will make sure that the public has the information it needs to be able to meaningfully engage in it. He should start by releasing the government's secret interpretation of Section 215 of the Patriot Act.
Reposted from the Huffington Post

By Hector Villagra, Executive Director, ACLU/SC On Wednesday, June 5th, the ACLU of Southern California’s Ahilan Arulanantham took part in a public discussion concerning the Obama Administration’s targeted killing program. Speaking alongside Mr. Arulanantham was John Yoo, formerly with the Department of Justice’s Office of Legal Counsel during the Bush Administration. Although we disagree with much of what Yoo said, his presence made for an engaging discussion, as those permitted to attend no doubt found. But there is an important lesson underlying the fact that he was there at all, and we should pause to consider it.
Yoo has been investigated for war crimes and his role in the institutionalization of torture and other violations of domestic and international law. In particular, Yoo was the defendant in Padilla v. Yoo, a lawsuit filed by an American citizen detained without trial and tortured by military officials acting under the legal authority provided by Yoo’s memos. Unfortunately, a federal appellate court recently ruled that Yoo was legally immune from being sued by the many victims of the policies he sanctioned.
Despite the passage of time, the extremity of the position for which Yoo argued and the harm he caused cannot be forgotten. Yoo argued that the military had unfettered freedom to imprison American citizens found on United States soil without charge or explanation, and to torture these men and women indefinitely, even for years, while denying them the right to speak with anyone outside their interrogators. Interrogators sprayed their captives with noxious fumes, physically forced them into “stress” positions for hours on end, stripped them naked, threatened them with murder, forcibly administered anti-psychotic drugs, and conducted other unspeakable acts – all based on Yoo’s legal guidance.
Yoo’s legal reasoning has since been revoked and repudiated by executive order of President Obama, in recognition of both its shoddy legal analysis and its terrible consequences for “safe, lawful and humane treatment.” The Office of Professional Responsibility overseeing Yoo’s department found that he was guilty of “intentional professional misconduct when he violated his duty to render … objective, candid legal advice.” That office’s decision to report Yoo to the bar for discipline was quashed by a senior Justice Department official, who nonetheless acknowledged that Yoo had used “poor judgment” and his tenure represented “an unfortunate chapter in the history of the Office.”
Yet Yoo remains unpunished for his actions – in fact the Obama Administration never even tried to prosecute him. And, since the Padilla decision, the federal courts appear to have decided that people like Yoo cannot be held accountable even by their victims through civil lawsuits.
For that reason, while we acknowledge the right of anyone – including those who should be (and are) imprisoned for the most serious crimes – to speak freely, and while we will always stand ready to defend the free speech rights of even those with whom we most vehemently disagree, we must also acknowledge that the Obama Administration has failed by choosing not to prosecute Yoo, as well as others who sanctioned torture when they held positions of such great power. As publically stated by deans and professors of several law schools, including UC Irvine and Stanford University, the failure to hold Yoo accountable undermines “the integrity of the legal profession and the sanctity of the rule of law.”
That John Yoo has no reason to fear the prospect of being held responsible for his actions sends a most disturbing message: the courts and the executive branch will shield those who commit heinous abuses of our Constitution. That is a truly terrifying precedent.