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Sen. Ron Wyden On NSA Spying: It's As Bad As Snowden Says
If we do not seize this moment in history to reform our surveillance laws, we will all live to regret it.
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July 25, 2013
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Editor's note: This is a transcript from a speech given on Tuesday, July 23, at the Center for American Progress in Washington.
When
the Patriot Act was last reauthorized, I stood on the floor of the
United States Senate and said, “I want to deliver a warning this
afternoon. When the American people find out how their government has
interpreted the Patriot Act, they are going to be stunned and they are
going to be angry.”
From my position on the Senate Intelligence
Committee, I had seen government activities conducted under the umbrella
of the Patriot Act that I knew would astonish most Americans. At the
time, Senate rules about classified information barred me from giving
any specifics of what I’d seen except to describe it as "secret law"—a
secret interpretation of the Patriot Act, issued by a secret court, that
authorizes secret surveillance programs; programs that I and colleagues
think go far beyond the intent of the statute.
If that is not
enough to give you pause, then consider that not only were the existence
of and the legal justification for these programs kept completely
secret from the American people, senior officials from across the
government were making statements to the public about domestic
surveillance that were clearly misleading and at times simply false.
Senator Mark Udall and I tried again and again to get the executive
branch to be straight with the public, but under the classification
rules observed by the Senate we are not even allowed to tap the truth
out in Morse code and we tried just about everything else we could
think of to warn the American people. But as I’ve said before, one way
or another, the truth always wins out.
Edward Snowden’s Revelations
Last
month, disclosures made by an NSA contractor lit the surveillance world
on fire. Several provisions of secret law were no longer secret and the
American people were finally able to see some of the things I’ve been
raising the alarm about for years. And when they did, boy were they
stunned, and boy, are they angry.
You hear it in the lunch rooms,
town hall meetings and senior citizen centers. The latest polling, the
well-respected Quinnipiac poll, found that a plurality of people said
the government is overreaching and encroaching too much on Americans’
civil liberties. That’s a huge swing from what that same survey said
just a couple years ago, and that number is trending upward. As more
information about sweeping government surveillance of lawabiding
Americans is made public and the American people can discuss its
impacts, I believe more Americans will speak out. They’re going to say,
in America, you don’t have to settle for one priority or the other: laws
can be written to protect both privacy and security, and laws should
never be secret.
After 9/11, when 3,000 Americans were murdered by
terrorists, there was a consensus that our government needed to take
decisive action. At a time of understandable panic, Congress gave the
government new surveillance authorities, but attached an expiration date
to these authorities so that they could be deliberated more carefully
once the immediate emergency had passed. Yet in the decade since, that
law has been extended several times with no public discussion about how
the law has actually been interpreted. The result: the creation of an
always expanding, omnipresent surveillance state that hour by hour
chips needlessly away at the liberties and freedoms our founders
established for us, without the benefit of actually making us any safer.
So,
today I’m going to deliver another warning: If we do not seize this
unique moment in our constitutional history to reform our surveillance
laws and practices, we will all live to regret it. I’ll have more to say
about the consequences of the omnipresent surveillance state, but as
you listen to this talk, ponder that most of us have a computer in our
pocket that potentially can be used to track and monitor us 24/7. The
combination of increasingly advanced technology with a breakdown in the
checks and balances that limit government action could lead us to a
surveillance state that cannot be reversed.
What’s Happened Since 9/11
At
this point, a little bit of history might be helpful. I joined the
Senate Intelligence Committee in January 2001, just before 9/11. Like
most senators I voted for the original Patriot Act, in part because I
was reassured that it had an expiration date that would force Congress
to come back and consider these authorities more carefully when the
immediate crisis had passed. As time went on, from my view on the
Intelligence Committee there were developments that seemed farther and
farther removed from the ideals of our founding fathers.
This
started not long after 9/11, with a Pentagon program called Total
Information Awareness, which was essentially an effort to develop an
ultra large-scale domestic datamining system. Troubled by this
effort, and its not-exactly-modest logo of an all-seeing eye on the
universe, I worked with a number of senators to shut it down.
Unfortunately, this was hardly the last domestic surveillance overreach.
In fact, the NSA’s infamous warrantless wiretapping program was already
up and running at that point, though I, and most members of the
Intelligence Committee didn’t learn about it until a few years later.
This was part of a pattern of withholding information from Congress that
persisted throughout the Bush administration I joined the
Intelligence Committee in 2001, but I learned about the warrantless
wiretapping program when you read about it in the
New York Times in late 2005.
The
Bush administration spent most of 2006 attempting to defend the
warrantless wiretapping program. Once again, when the truth came out, it
produced a surge of public pressure and the Bush administration
announced that they would submit to oversight from Congress and the
Foreign Intelligence Surveillance Court, also known as the FISA court.
Unfortunately, because the FISA court’s rulings are secret, most
Americans had no idea that the court was prepared to issue incredibly
broad rulings, permitting the massive surveillance that finally made
headlines last month.
It’s now a matter of public record that the
bulk phone records program has been operating since at least 2007. It’s
not a coincidence that a handful of senators have been working since
then to find ways to alert the public about what has been going on.
Months and years went into trying to find ways to raise public awareness
about secret surveillance authorities within the confines of
classification rules. I and several of my colleagues have made it our
mission to end the use of secret law.
When Oregonians hear the
words "secret law," they have come up to me and asked, “Ron, how can the
law be secret? When you guys pass laws that’s a public deal. I’m going
to look them up online.” In response, I tell Oregonians that there are
effectively two Patriot Acts the first is the one that they can read
on their laptop in Medford or Portland, analyze and understand. Then
there’s the real Patriot Act—the secret interpretation of the law that
the government is actually relying upon. The secret rulings of the
Foreign Intelligence Surveillance Court have interpreted the Patriot
Act, as well as section 702 of the FISA statute, in some surprising
ways, and these rulings are kept entirely secret from the public. These
rulings can be astoundingly broad. The one that authorizes the bulk
collection of phone records is as broad as any I have ever seen.
This
reliance of government agencies on a secret body of law has real
consequences. Most Americans don’t expect to know the details about
ongoing sensitive military and intelligence activities, but as voters
they absolutely have a need and a right to know what their government
thinks it is permitted to do, so that they can ratify or reject
decisions that elected officials make on their behalf. To put it another
way, Americans recognize that intelligence agencies will sometimes need
to conduct secret operations, but they don’t think those agencies
should be relying on secret law.
Now, some argue that keeping the
meaning of surveillance laws secret is necessary, because it makes it
easier to gather intelligence on terrorist groups and other foreign
powers. If you follow this logic, when Congress passed the original
Foreign Intelligence Surveillance Act back in the 1970s, they could have
found a way to make the whole thing secret, so that Soviet agents
wouldn’t know what the FBI’s surveillance authorities were. But that’s
not the way you do it in America.
It is a fundamental principle of
American democracy that laws should not be public only when it is
convenient for government officials to make them public. They should be
public all the time, open to review by adversarial courts, and subject
to change by an accountable legislature guided by an informed public. If
Americans are not able to learn how their government is interpreting
and executing the law then we have effectively eliminated the most
important bulwark of our democracy. That’s why, even at the height of
the Cold War, when the argument for absolute secrecy was at its zenith,
Congress chose to make US surveillance laws public.
Without public
laws, and public court rulings interpreting those laws, it is
impossible to have informed public debate. And when the American people
are in the dark, they can’t make fully informed decisions about who
should represent them, or protest policies that they disagree with.
These are fundamentals. It’s Civics 101. And secret law violates those
basic principles. It has no place in America.
The Truth About the FISA Court
Now
let’s turn to the secret court the Foreign Intelligence Surveillance
Court, the one virtually no one had heard of two months ago and now the
public asks me about at the barber. When the FISA court was created as
part of the 1978 FISA law, its work was pretty routine. It was assigned
to review government applications for wiretaps and decide whether the
government was able to show probable cause. Sounds like the
garden-variety function of district court judges across America. In
fact, their role was so much like a district court that the judges who
make up the FISA court are all current federal district court judges.
After
9/11, Congress passed the Patriot Act and the FISA Amendments Act. This
gave the government broad new surveillance powers that didn’t much
resemble anything in either the criminal law enforcement world or the
original FISA law. The FISA court got the job of interpreting these new,
unparalleled authorities of the Patriot Act and FISA Amendments Act.
They chose to issue binding secret rulings that interpreted the law and
the Constitution in the startling way that has come to light in the last
six weeks. They were to issue the decision that the Patriot Act could
be used for dragnet, bulk surveillance of law-abiding Americans.
Outside
the names of the FISA court judges, virtually everything else is secret
about the court. Their rulings are secret, which makes challenging them
in an appeals court almost impossible. Their proceedings are secret
too, but I can tell you that they are almost always onesided. The
government lawyers walk in and lay out an argument for why the
government should be allowed to do something, and the court decides
based solely on the judge’s assessment of the government’s arguments.
That’s not unusual if a court is considering a routine warrant request,
but it’s very unusual if a court is doing major legal or constitutional
analysis. I know of absolutely no other court in this country that
strays so far from the adversarial process that has been part of our
system for centuries.
It may also surprise you to know that when
President Obama came to office, his administration agreed with me that
these rulings needed to be made public. In the summer of 2009 I received
a written commitment from the Justice Department and the Office of the
Director of National Intelligence that a process would be created to
start redacting and declassifying FISA court opinions, so that the
American people could have some idea of what the government believes the
law allows it to do. In the last four years exactly zero opinions have
been released.
Now that we know a bit about secret law and the
court that created it, let’s talk about how it has diminished the rights
of every American man, woman and child. Despite the efforts of the
intelligence community leadership to downplay the privacy impact of the
Patriot Act collection, the bulk collection of phone records
significantly impacts the privacy of million of law-abiding Americans.
If you know who someone called, when they called, where they called
from, and how long they talked, you lay bare the personal lives of
lawabiding Americans to the scrutiny of government bureaucrats and
outside contractors. This is particularly true if you’re vacuuming up
cell phone location data, essentially turning every American’s cell
phone into a tracking device. We are told this is not happening today,
but intelligence officials have told the press that they currently have
the legal authority to collect Americans’ location information in bulk.
Especially
troubling is the fact that there is nothing in the Patriot Act that
limits this sweeping bulk collection to phone records. The government
can use the Patriot Act’s business records authority to collect, collate
and retain all sorts of sensitive information, including medical
records, financial records, or credit card purchases. They could use
this authority to develop a database of gun owners or readers of books
and magazines deemed subversive. This means that the government’s
authority to collect information on lawabiding American citizens is
essentially limitless. If it is a record held by a business, membership
organization, doctor, or school, or any other third party, it could be
subject to bulk collection under the Patriot Act.
Authorities this
broad give the national security bureaucracy the power to scrutinize
the personal lives of every law-abiding American. Allowing that to
continue is a grave error that demonstrates a willful ignorance of human
nature. Moreover, it demonstrates a complete disregard for the
responsibilities entrusted to us by the founding fathers to maintain
robust checks and balances on the power of any arm of the government.
That obviously raises some very serious questions. What happens to our
government, our civil liberties and our basic democracy if the
surveillance state is allowed to grow unchecked?
As we have seen
in recent days, the intelligence leadership is determined to hold on to
this authority. Merging the ability to conduct surveillance that reveals
every aspect of a person’s life with the ability to conjure up the
legal authority to execute that surveillance, and finally, removing any
accountable judicial oversight, creates the opportunity for
unprecedented influence over our system of government.
Why Checks And Balances Are Needed
Without
additional protections in the law, every single one of us in this room
may be and can be tracked and monitored anywhere we are at any time. The
piece of technology we consider vital to the conduct of our everyday
personal and professional life happens to be a combination phone bug,
listening device, location tracker, and hidden camera. There isn’t an
American alive who would consent to being required to carry any one of
those items and so we must reject the idea that the government may use
its powers to arbitrarily bypass that consent.
Today, government
officials are openly telling the press that they have the authority to
effectively turn Americans’ smart phones and cell phones into
location-enabled homing beacons. Compounding the problem is the fact
that the case law is unsettled on cell phone tracking and the leaders of
the intelligence community have consistently been unwilling to state
what the rights of lawabiding people are on this issue. Without
adequate protections built into the law there’s no way that Americans
can ever be sure that the government isn’t going to interpret its
authorities more and more broadly, year after year, until the idea of a
telescreen monitoring your every move turns from dystopia to reality.
Some
would say that could never happen because there is secret oversight and
secret courts that guard against it. But the fact of the matter is that
senior policymakers and federal judges have deferred again and again to
the intelligence agencies to decide what surveillance authorities they
need. For those who believe executive branch officials will voluntarily
interpret their surveillance authorities with restraint, I believe it is
more likely that I will achieve my lifelong dream of playing in the
NBA.
But seriously, when James Madison was attempting to persuade
Americans that the Constitution contained sufficient protections against
any politician or bureaucrat seizing more power than that granted to
them by the people, he did not just ask his fellow Americans to trust
him. He carefully laid out the protections contained in the Constitution
and how the people could ensure they were not breached. We are failing
our constituents, we are failing our founders, and we are failing every
brave man and woman who fought to protect American democracy if we are
willing, today, to just trust any individual or any agency with power
greater than the checked and limited authority that serves as a firewall
against tyranny.
Now I want to spend a few minutes talking about
those who make up the intelligence community and day in and day out work
to protect us all. Let me be clear: I have found the men and women who
work at our nation’s intelligence agencies to be hardworking, dedicated
professionals. They are genuine patriots who make real sacrifices to
serve their country. They should be able to do their jobs secure in the
knowledge that there is public support for everything that they are
doing. Unfortunately, that can’t happen when senior officials from
across the government mislead the public about the government’s
surveillance authorities.
And let’s be clear: the public was not
just kept in the dark about the Patriot Act and other secret
authorities. The public was actively misled. I’ve pointed out several
instances in the past where senior officials have made misleading
statements to the public and to Congress about the types of surveillance
they are conducting on the American people, and I’ll recap some of the
most significant examples.
For years, senior Justice Department
officials have told Congress and the public that the Patriot Act’s
business record authority which is the authority that is used to
collect the phone records of millions of ordinary Americans is
“analogous to a grand jury subpoena.” This statement is exceptionally
misleading. It strains the word “analogous” well beyond the breaking
point. It’s certainly true that both authorities can be used to collect a
wide variety of records, but the Patriot Act has been secretly
interpreted to permit ongoing bulk collection, and this makes that
authority very, very different from regular grand jury subpoena
authority. Any lawyers in here? After the speech is over come up and
tell me if you’ve ever seen a grand jury subpoena that allowed the
government on an ongoing basis to collect the records of millions of
ordinary Americans.
The fact is that no one has seen a subpoena
like that is because there aren’t any. This incredibly misleading
analogy has been made by more than one official on more than one
occasion and often as part of testimony to Congress. The official who
served for years as the Justice Department’s top authority on criminal
surveillance law recently told the
Wall Street Journal that if a
federal attorney “served a grandjury subpoena for such a broad class
of records in a criminal investigation, he or she would be laughed out
of court.”
Years of Deceiving Congress
Defenders
of this deception have said that members of Congress have the ability
to get the full story of what the government is doing on a classified
basis, so they shouldn’t complain when officials make misleading public
statements, even in congressional hearings. That is an absurd argument.
Sure, members of Congress
could get the full story in a
classified setting, but that does not excuse the practice of half truths
and misleading statements being made on the public record. When did it
become all right for government officials’ public statements and private
statements to differ so fundamentally? The answer is that it is not all
right, and it is indicative of a much larger culture of misinformation
that goes beyond the congressional hearing room and into the public
conversation writ large.
For example, last spring the director of
the National Security Agency spoke over at the American Enterprise
Institute, where he said publicly that “we don’t hold data on U.S.
citizens.” That statement sounds reassuring, but of course the American
people now know that it is false. In fact, it’s one of the most false
statements ever made about domestic surveillance. Later that same year,
at the annual hackers’ conference known as DefCon, the same NSA director
said that the government does not collect “dossiers” on millions of
Americans. Now I’ve served on the Intelligence Committee for a dozen
years and I didn’t know what “dossiers” meant in this context. I do know
that Americans not familiar with the classified details would probably
hear that statement and think that there was no bulk collection of the
personal information of hundreds of millions of Americans taking place.
After
the director of the NSA made this statement in public, Senator Udall
and I wrote to the director asking for a clarification. In our letter we
asked whether the NSA collects any type of data at all on millions or
hundreds of millions of Americans. Even though the director of the NSA
was the one who had raised this issue publicly, intelligence officials
declined to give us a straight answer.
A few months ago, I made
the judgement that I would not be responsibly carrying out my oversight
powers if I didn’t press intelligence officials to clarify what the NSA
director told the public about data collection. So I decided it was
necessary to put the question to the director of National Intelligence.
And I had my staff send the question over a day in advance so that he
would be prepared to answer. The director unfortunately said that the
answer was no, the NSA does not knowingly collect data on millions of
Americans, which is obviously not correct.
After the hearing, I
had my staff call the director’s office on a secure line and urge them
to correct the record. Disappointingly, his office decided to let this
inaccurate statement stand. My staff made it clear that this was wrong
and that it was unacceptable to leave the American public misled. I
continued to warn the public about the problem of secret surveillance
law over the following weeks, until the June disclosures.
Even
after those disclosures, there has been an effort by officials to
exaggerate the effectiveness of the bulk phone records collection
program by conflating it with the collection of Internet communications
under Section 702 of the FISA statute. This collection, which involves
the PRISM computer system, has produced some information of real value. I
will note that last summer I was able to get the executive branch to
declassify the fact that the FISA court has ruled on at least one
occasion that this collection violated the Fourth Amendment in a way
that affected an undisclosed number of Americans. And the court also
said that the government has violated the spirit of the law as well. So,
I think section 702 clearly needs stronger protections for the privacy
of law-abiding Americans, and I think these protections could be added
without losing the value of this collection. But I won’t deny that this
value exists.
Meanwhile, I have not seen any indication that the
bulk phone records program yielded any unique intelligence that was not
also available to the government through less intrusive means. When
government officials refer to these programs collectively, and say that
“these programs” provided unique intelligence without pointing out that
one program is doing all the work and the other is basically just along
for the ride, in my judgment that is also a misleading statement.
And
there have also been a number of misleading and inaccurate statements
made about section 702 collection as well. Last month, Senator Udall and
I wrote to the NSA director to point out that the NSA’s official fact
sheet contained some misleading information and a significant inaccuracy
that made protections for Americans’ privacy sound much stronger than
they actually are. The next day that fact sheet was taken down from the
front page of the NSA website. Would the misleading fact sheet still be
up there if Senator Udall and I hadn’t pushed to take it down? Given
what it took to correct the misleading statements of the director of
National Intelligence and the National Security Agency that may well be
the case.
What Are You Going To Do About It?
So
having walked you through how secret law, interpreted by a secret
court, authorized secret surveillance, the obvious question is, what is
next? Ron, what are you going to do about it?
A few weeks ago more
than a quarter of the U.S. Senate wrote to the director of National
Intelligence demanding public answers to additional questions about the
use of the government’s surveillance authorities. It’s been two months
since the disclosures by Mr. Snowden, and the signers of this
letter—including key members of the senate leadership and committee
chairs with decades of experience—have made it clear they are not going
to accept more stonewalling or misleading statements. Patriot Act reform
legislation has also been introduced. The centerpiece of this effort
would require that the government show a demonstrated link to terrorism
or espionage before collecting Americans’ personal information.
Senators
have also proposed legislation that would ensure that the legal
analysis of secret court opinions interpreting surveillance law is
declassified in a responsible manner. And I am collaborating with
colleagues to develop other reforms that will bring openness,
accountability, and the benefits of an adversarial process to the
anachronistic operations of the most secretive court in America. And
most importantly, I and my colleagues are working to keep the public
debate alive. We have exposed misleading statements. We are holding
officials accountable. And we are showing that liberty and security are
not incompatible. The fact is, the side of transparency and openness is
starting to put some points on the board.
As many of you are now
aware, the NSA also had a bulk email records program that was similar to
the bulk phone records program. This program operated under section 214
of the Patriot Act, which is known as the “pen register” provision,
until fairly recently. My Intelligence Committee colleague Senator Udall
and I were very concerned about this program’s impact on Americans’
civil liberties and privacy rights, and we spent a significant portion
of 2011 pressing intelligence officials to provide evidence of its
effectiveness. It turned out that they were unable to do so, and that
statements that had been made about this program to both Congress and
the FISA court had significantly exaggerated the program’s
effectiveness. The program was shut down that same year. So that was a
big win for everyone who cares about Americans’ privacy and civil
liberties, even though Senator Udall and I weren’t able to tell anyone
about it until just a few weeks ago.
More recently, when the
annual Intelligence Authorization bill was going through the
Intelligence Committee late last year it included a few provisions that
were meant to stop intelligence leaks but that would have been
disastrous to the news media’s ability to report on foreign policy and
national security. Among other things, it would have restricted the
ability of former government officials to talk to the press, even about
unclassified foreign policy matters. And it would have prohibited
intelligence agencies from making anyone outside of a few highlevel
officials available for background briefings, even on unclassified
matters. These provisions were intended to stop leaks, but it’s clear to
me that they would have significantly encroached upon the First
Amendment, and led to a lessinformed public debate on foreign policy
and national security matters.
These antileaks provisions went
through the committee process in secret, and the bill was agreed to by a
vote of 14-1 (I’ll let you all guess who that nay vote was). The bill
then made its way to the Senate floor and a public debate. Once the bill
became public, of course, it was promptly eviscerated by media and free
speech advocates, who saw it as a terrible idea. I put a hold on the
bill so that it could not be quickly passed without the discussion it
deserved and within weeks, all of the antileaks provisions were
removed.
A few months later, my colleagues and I were finally able
to get the official Justice Department opinions laying out what the
government believes the rules are for the targeted killings of
Americans. You probably know this as the drones issue. These documents
on killing Americans weren’t even being shared with members of Congress
on a classified basis, let alone with the American people. You may have
heard me say this before, but I believe every American has the right to
know when their government thinks it is allowed to kill them. My
colleagues and I fought publicly and privately to get these documents,
used whatever procedural opportunities were available, and eventually
got the documents we had demanded.
Since then we’ve been looking
them over and working out a strategy that would allow for the pertinent
portions of these documents to be made public. I don’t take a backseat
to anybody when it comes to protecting genuinely sensitive national
security information, and I think most Americans expect that government
agencies will sometimes conduct secret operations. But those agencies
should never rely on secret law or authorities granted by secret courts.
