Senators Ask Holder to Declassify Evidence on Patriot Act

November 17, 2009 | Last updated: July 31, 2020

Anticipating that the debate over reauthorization of the USA PATRIOT Act will soon come to the Senate floor, Sens. Ron Wyden (D-Ore.) Russ Feingold (D-Wis.) and Richard Durbin (D-Ill.) on Tuesday asked Attorney General Eric Holder to declassify key information about how the law’s “business records provision” has been used. They last sent a classified letter in June asking for the same thing, but claim they’ve received no response.

Section 215 of the Patriot Act, known as the “business records provision,” relaxed the previous standard the government had to meet to obtain personal information from banks, hospitals, libraries, retail stores and other institutions. Previously, the government had to show that it had evidence that the person whose records it sought was a terrorist or spy. With passage of the Patriot Act, that standard was lowered to permit the government to collect any records it considered “relevant to an investigation.”

Wyden, Feingold and Durbin have been arguing that the relevance standard is far too broad and violates the privacy rights of ordinary law-abiding Americans. But they also claim that the government is withholding key information from Congress that would allow lawmakers to make an informed judgment about the issue. Although it’s not clear exactly what information they’re talking about, since even a description of the information is classified, it would seem to be information about how the government has used the business records provision, and what evidence it has obtained by its use.

As Jennifer Hoelzer, Wyden’s communications director, said in an e-mail: “The fact that I can’t in anyway characterize the information in itself highlights the problem and why we believe it is so essential that the Justice Department declassify this information. Senators should know what they are voting on.”

Here’s part of what Wyden wrote in The Huffington Post on this issue a few weeks ago:

I have served on the Senate Intelligence Committee for eight years, and I have yet to see evidence — classified or otherwise — that has convinced me that revising the business records provision to include a less intrusive standard would be harmful to U.S. national security. Yet as Congress considers whether to reauthorize this standard — written in a rush to judgment eight years ago — some will undoubtedly argue that Congress should just trust that the provision is essential and blindly sign-off on reauthorization. I disagree. While “just trust us” has passed as informed national security debate in this country for eight years, it hasn’t resulted in good national security policy.

The senators’ latest letter to the attorney general on this issue is here.