Transcript: Sen. Ron Wyden’s remarks on the NSA’s domestic surveillance programs at the Center for American Progress on July 23, 2013

Partial transcript of remarks by Sen. Ron Wyden (D-Ore.) on the NSA’s domestic data collection and privacy rights at the Center for American Progress Action Fund on July 23, 2013:

…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 interpreted the Patriot Act, they’re 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 of our people.

At the time, Senate rule about classified information barred me about giving out any specifics and so we can’t describe what was going on as essentially secret law. A secret interpretation of the Patriot Act issued by a secret court that authorizes secret surveillance programs – programs that I and several colleagues thought went far beyond the intent of the statute.

Now if that’s not enough to give pause, then consider that not only when 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 statements and sometimes they were simply false.

Sen. 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 aren’t allowed exactly to tap out the truth in Morse code. But we tried just about everything else that we could think of to put the American people on notice.

But as I said that day on the Senate floor, one way or another the truth eventually in our country comes out.

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 are finally able to see some of the things that we have been raising the alarm about for years, and when they did, in fact, there was a lot of anger and a lot of Americans were stunned.

So now, you hear about in the lunch rooms of office buildings. You get asked about it at town hall meetings and at senior citizen centers.

The latest polling done by the respected Quinnipiac poll found that now a plurality of Americans said that the government is over-reaching and encroaching too much on our civil liberties. This is a dramatic swing from what the same survey said just a couple of years ago, and the number is in fact trending upward.

As more information about sweeping government surveillance of law-abiding Americans are made public and the American people can discuss the 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 another. You don’t have to settle for just your security or your liberty. We can have both. We can have laws that protect both privacy and security. And the laws especially shouldn’t be kept secret.”

Now, after 9/11 when 3,000 of our fellow citizens were murdered by terrorists, there was a consensus that our country needed to take decisive action. At a time of understandable panic, the Congress gave the government new surveillance authorities.

But the Congress also attached expiration date to these authorities so that they could be deliberated more carefully once the emergency – once the immediate emergency – had passed. Yet in the decade since the 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 now chips away needlessly at the liberties and freedoms our founding fathers established for all of us and it’s all done without the benefit of actually making us safer.

So today, here at the center, 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 are all going to 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 here have a computer in our pocket that can potentially 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.

Now, at this point, I thought a little bit of history might be helpful.

I joined the Senate Intelligence Committee in January of 2001, right before 9/11. Like most Senators, I voted for the original Patriot Act. In part, I did so because I was reassured that it had an expiration date – an expiration date that would force the 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 seem farther and farther removed from the ideals of the founding fathers. This started not long after 9/11 with a Pentagon program that was called “Total Information Awareness”. This program was essentially an effort to develop an ultra large-scale domestic data mining program.

Troubled by all of this and 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 over-reach.

In fact, the NSA’s infamous warrantless wiretapping program was already up and running at this point though I and most members of the intelligence committee didn’t even know about it until several years later.

That was part of a pattern – withholding information from the Congress that persisted throughout the Bush administration.

I joined, for example, the intelligence committee in 2001 but I learned about the warrantless wiretapping program when I read about it in the New York Times in late 2005.

Now, the Bush administration spent much 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 they would submit it to oversights in the Foreign Intelligence Surveillance Court, what’s known as the FISA court.

Unfortunately, because the court’s rulings are kept secret, most Americans had no idea that the court was prepared to issue extraordinarily broad rulings permitting the massive surveillance that eventually made headlines last month.

It’s now a matter of public record that the bulk phone record program has been operating since at least 2007, and it’s not a coincidence that a handful of Senators have been working since then to find ways to alert the public to what is actually going on.

Months and years went into trying to find ways to raise public awareness about secret surveillance authorities and to do it within the confines of the classification rules. I and several colleagues made it our mission – our special cause – to end the use of secret law.

Now, when the people in my home state hear those words “secret law”, several of them come up and say “Ron, what are you talking about? How can the law be kept secret? When you guys pass laws back there, it’s like a public deal. I’m going to look this stuff up online.”

And in response, I tell Oregonians that there are effectively two Patriot Acts. There is one that you can read on your laptop if you’re sitting in Medford or Portland, and you can analyze that and understand it. Then, there’s the real Patriot Act – the secret interpretation of the law that the government actually relies on.

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 those rulings are kept secret from the public. And I can tell you those rulings can be astoundingly broad.

The one that authorizes the bulk collection of phone records is as broad a ruling as I have ever seen.

Now, the 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 intelligence activities but as voters they absolutely have a right and a need to know what their government believes it is permitted to do because that is what Americans need to be able to 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 ought to be relying on secret laws.

Now, some argue that keeping the meaning of surveillance laws secret is somehow necessary. The argument essentially is it makes it easier to gather intelligence on terrorist groups, other foreign powers, and that’s why the secrecy is appropriate. 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 keep the entire thing secret, that way Soviet agents wouldn’t know what the FBI surveillance authorities were. But that’s not the way we do it in America; we don’t keep laws secret.

It’s a fundamental principle of American democracy that laws should not be public only when it’s convenient for government officials to make them public. Laws ought to be public all the time – open to review by adversarial judicial process and subject to change by an accountable legislature guided by an informed public.

If Americans aren’t able to learn how their government interprets and executes the law, then we will have eliminated a fundamental 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, the Congress said we’re going to make surveillance laws public.

Without public laws and public court rulings that interpret those laws, you simply cannot have an informed public debate. And when the American people are in the dark, they can’t make fully informed decisions about who ought to represent them or, in effect, voice agreement or disagreement about various government policies. These are fundamentals about our country and what the founding fathers wanted. It’s civics 101. And secret law violates those principles. Secret law has no place in America.

Now, I’d like to turn next to the secret court – the Foreign Intelligence Surveillance Court – the one that virtually no one knew about a couple of months ago and now people ask me about at the barber shop.

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.

For all you lawyers, it sounds like a garden variety function of district courts and district court judges across the country.

In fact, their role was so much like a district court that the judges who make up the FISA court are actually current federal district court judges.

After 9/11, the Congress, of course, passed the Patriot Act and the FISA Amendments Act and this gave the government broad new surveillance powers. These new powers didn’t resemble anything in either the criminal law enforcement world or actually the original FISA law.

The FISA court got the job of interpreting these new unparalleled authorities of the Patriot Act and the FISA Amendments Act. It was their decision to issue binding secret rulings that interpreted the law and the Constitution in these 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 of the names of FISA court judges, virtually everything else is secret about the court. Their rulings are secret, which certainly makes challenging them in an appeals process almost impossible. Their proceedings are secret but I can tell you they’re almost always one-sided. The government lawyers walk in, they lay out the arguments for why the government ought to be allowed to do something, and the court decides basically 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 conducting a major legal or constitutional analysis.

I know of no other court in America that strays so far from the adversarial process that has been part of America for centuries.

It may also surprise you 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 begin – would be created – to start redacting and declassifying FISA court opinions so the American people would have some idea of what their government believes the law is allowed 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, I want to talk about how this has diminished the right 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 millions 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 law abiding Americans to the scrutiny of government bureaucrats and outside contractors. That’s the reality of the bulk phone records collection program. This is particularly true if you’re vacuuming up cell phone location data, essentially turning everybody’s cell phone into a tracking device.

Now, we’ve been told that this isn’t 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 – nothing – in the Patriot Act that limits the 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 can use this authority to develop, for example, a database of gun owners or readers of books and magazines that are deemed subversive.

This means that government’s authority to collect information on law-abiding Americans is essentially limitless at this time. If it is a record held by a business or membership organization, a doctor, a school, or any other party, it could be subject to the bulk collection authority 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 our government.

Now, at this point, I think we’ve got in front of us some very serious questions. What happens to our government, our civil liberties, and our wonderful system, our basic democracy if the surveillance state is allowed to grow unchecked? The always expanding omnipresent surveillance – what happens if it just keeps growing and growing and growing?

As we’ve 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 unprecedented opportunity to influence our system of government.

Without additional protections in the law, every single one of us – every one of us – may be and can be tracked, monitored anywhere we are at any time.

The piece of technology we consider vital to the conduct of our everyday personal and professional life – all those smartphones – happens to be a combination of 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, so we ought to reject the idea that government may use its power to arbitrarily bypass that consent.

Today, government officials openly tell the press that they have the authority to effectively turn American’s smartphones, cell phones, into a 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 law abiding people on this issue. I know that because I repeatedly asked this in public hearings.

And without adequate protection built into the law, there’s no way that Americans could ever be sure that the government isn’t going to interpret some authorities more and more broadly year after year until the idea of a telescreen monitoring your every move turns from dystopia to reality.

Now, some are going to say that’s never going to happen because there is secret court oversight, secret court that guards 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 the executive branch officials will voluntarily interpret their surveillance authorities with restraint, I believe it is more likely that I’ll achieve my lifelong dream of playing in the NBA.

Now, when James Madison was attempting to persuade Americans that the Constitution contains sufficient protections against any politician or bureaucrat seizing more power not granted by the people, he didn’t just ask his fellow Americans to trust him. He carefully laid out the protections contained in the Constitution and how the people could ensure that they weren’t breached.

We are failing our constituents. We are failing our founding fathers. We are failing every brave man and woman who fought and continues to fight to protect American democracy if we are willing today to just trust any individual or any agency with greater power than the checks and limited authority that the founding fathers wanted as a firewall against tyranny.

I do 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. I have found the men and women who work at our nation’s intelligence agencies to be hardworking, dedicated professionals. They’re genuine patriots who make real sacrifices to serve their country. And I believe they ought to be able to do their jobs secure in the knowledge that there is strong public support for everything they’re doing.

Unfortunately, that can’t happen when senior officials from across the government mislead the public about the government’s surveillance authorities.

So let’s be clear here. The public was not just kept in the dark about the Patriot Act and other secret authorities; the public was actively misled.

I pointed out several instances in the past where senior officials made misleading statements to the public and the Congress about the types of surveillance that they conduct on the public, and I’d like to focus on several of the most significant examples.

For years, senior Justice Department officials have told the Congress and the public that the Patriot Act business record authority – the authority used to collect the phone records of millions of law abiding Americans – is analogous to a grand jury subpoena. Those quotes – they say it’s analogous to a grand jury subpoena. That statement is exceptionally misleading. It certainly strains the word analogous beyond the breaking point.

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.

I’m sure there are some lawyers here. After the speech is over, come up and tell me if you’ve ever seen a grand jury subpoena that allow the government on an ongoing basis to collect the records of millions of ordinary Americans.

The fact is that no one has ever seen a subpoena like that 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 a part of actual testimony to the United States Congress.

The official who served for years as the Justice Department’s top authority on criminal surveillance recently told the Wall Street Journal what he really thinks about this, and he said – a federal attorney – and I quote here: “Serve a grand jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”

Now, defenders of this deception has 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 statements, even in a congressional hearing. This is an absurd argument. Sure, members of Congress could get the full story in a classified setting, but that doesn’t excuse the practice of half truths and misleading statements being made on the public record.

When did it become all right in America for government officials’ public statements and private statements to differ so fundamentally? The answer is it’s not all right. It’s 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. When he said publicly, “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 is one of the most false statements ever made about domestic surveillance.

Later that same year at the annual hackers conference – you all probably know it as DEF CON – the same NSA Director said the government does not collect dossiers on millions of Americans.

Now, I’ve served on the intelligence committee for more than a dozen years and I don’t know what a “dossier” meant or didn’t at the time in that context. I do know that Americans not familiar with classified lingo would probably hear that statement and think there was no bulk collection of the personal information of hundreds of millions of law abiding Americans taking place at that time.

After the Director of the NSA made the statement in public, Sen. Udall and I wrote to the Director asking for 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 actually raised this issue in public, intelligence officials declined to give us a straight answer.

A few months ago, I made the judgment that I would not be responsibly carrying out my oversight powers if I didn’t press intelligence officials to clarify what the NSA Director said repeatedly about data collection. So I decided it was necessary to put the question to the Director of National Intelligence. So I had my staff send the actual question over a day in advance so that the Director would be prepared to answer.

The Director unfortunately said the answer was no, NSA does not 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 urged them to correct the record. But disappointingly, his office decided to let this inaccurate statement stand.

My office made it clear – my staff said clearly that this was wrong and that it was unacceptable to leave the American people misled and I continue to warn the public about the problem of secret surveillance law over the following weeks, in effect, until the June disclosures.

Now, even after those disclosures, there’s been an effort by officials to exaggerate the effectiveness of the bulk phone records collection program. One way to do that is to conflate it with the collection of Internet communications under Section 702 of the FISA statute.

This collection, which involves the PRISM computer program, 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 had actually ruled then on at least one occasion that this collection violated the Fourth Amendment in a way that affected undisclosed number of Americans. And the court also said the government had violated the spirit of the law as well.

So I certainly think Section 702 needs stronger protections for the privacy of law abiding Americans, and I think those protections could be added without losing the value of the statute and the collection.

Meanwhile, I haven’t seen any indication that the bulk phone record program yielded any unique intelligence that was not also available to the government through less intrusive needs.

When government officials refer to these programs collectively, and we have seen that on a number of occasions, and say that “these programs provide unique intelligence” without pointing out that one program is doing all the work and the other one is basically along for the ride, in my judgment, that is also a misleading statement.

There have been a number of misleading and inaccurate statements made about Section 702 the PRISM program and its collection as well.

Last month, Sen. Udall and I wrote to the NSA Director to point out that the NSA’s official fact sheet contains some misleading information and a significant inaccuracy that make protections for the privacy of our people sound stronger than they actually are. The next day the fact sheet was taken down from the front page of the NSA website. Would the misleading fact sheet still be up there, as Sen. Udall and I had pushed to take it down? Given what it took to correct the misleading statements [by] the Director of National Intelligence and the National Security Agency, that may well be the case.

So having walked you through how secret law interpreted by a secret court that authorizes secret surveillance kind of works, the obvious question is what’s next, what’s going to be done about it?

A few weeks ago, more than a quarter of the United States 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 disclosure by Mr. Snowden and the signers of this letter, including key members of the Senate leadership and committee chairs in the Senate with decades of experience, we made it clear that a quarter of the Senate is not going to accept any more stonewalling or misleading statements.

Patriot Act reform legislation has also been produced. The centerpiece of this effort would require the government show a demonstrated link between terrorism or espionage before collecting Americans’ personal information.

Senators have also proposed legislation that would ensure that the legal analysis – the secret court opinions – interpreting surveillance law is declassified in a responsible manner.

And I’m collaborating with my other colleagues to develop other reforms that will bring openness, accountability and the benefits of an adversarial process to the anachronistic operations of the most secret court in America.

Most importantly, I and my colleagues are making it clear that we are going to keep the public debate alive. We’ve exposed misleading statements. We’re holding officials accountable. And we’re showing that liberty and security are not mutually exclusive.

Now, the fact also is that the side of transparency and openness is starting to put some points on the board and make some progress.

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…Sen. Udall and I were very concerned that this program had a significant impact on the privacy rights and liberties of our people, and we spent much of 2011 pressing the intelligence community to show actual evidence of its effectiveness. It turned out they were unable to do so, and that statements that have been made about this program to both Congress and the court have significantly exaggerated this bulk email record program and its effectiveness.

The program was shut down that same year. So that was a big win for all who care about privacy and civil liberties, and Sen. Udall and I wish we could have told you about it at the time but at least you know that there was an effort that we think contributed to a significant step forward.

More recently when the annual intelligence authorization bill was going through the committee last year, it included a number of provisions that were meant to stop leaks but would have been disastrous for the public’s right to know. Among other things were the restricted ability of former government officials to talk to the press even about unclassified foreign policy matters. It would have prohibited intelligence agencies from making anyone outside of a few high-level officials available for background briefings, again, even on an unclassified basis.

These provisions were intended to stop leaks and I’m certainly against leaks as well but it’s clear to me they would have significantly encroach on the First Amendment and led to a less well-informed public debate on foreign policy and national security matters. These anti-leak provisions went through the committee process in secret and the bill was agreed to by a vote of 14 to 1 – probably get a sense that I opposed it and the bill made its way to the Senate floor.

At the time, I and everybody else didn’t even know how bad…the bill was because in the court’s and the committee’s consideration, we couldn’t talk to anybody on the outside. I knew it was [wrong] taking away people’s pension rights without due process, and both things just leaped out at us.

But once the bill came out – because you still have to actually pass the bill – it was eviscerated – eviscerated – by all the concerns, regardless of political party, to the point where people who had been supporters wouldn’t even contribute to op-ed articles and other opinion pieces their views.

So I put a hold on the bill so it could get some discussion within a matter of weeks. All of this overly broad kind of language that would restrict the public’s right to know was removed.

A few months later, my colleagues and I were finally able to get the Justice Department opinions laying out what the government believes the rules are for the targeted killings of Americans. This of course is the drones issue. These documents on killing Americans weren’t even being shared with members of Congress on a classified basis, let alone being used to have the debate with the American people.

Now, I said it before, I’ll repeat it at the center, I believe every American has the right to know when their government believes it is allowed to kill them. So a number of on the committee fought publicly and privately to get these documents, used whatever procedural opportunities were available. And eventually, we got those documents and established that this is the kind of oversight that needs to be conducted by the intelligence committee.

Since then, we’ve been looking those documents over and working out a strategy that would allow the pertinent portion of those documents to be made public.

Now, I don’t take a back seat to anybody when it comes to protecting genuinely sensitive national security information. And I’ve already told you that I think government agencies need to conduct secret operations but it shouldn’t rely on secret law, it shouldn’t rely on secret courts. And that is why I think now we are at a truly unique time in our country’s constitutional history.

The growth of digital technology, dramatic changes in the nature of warfare, definition of a battlefield, and novel courts counter everything the founding fathers imagined, and those forces together make for a combustible mix.

And at this point, I usually conclude with mentioning Ben Franklin. I often joke that we ought to have a Ben Franklin caucus in the Senate. He always said – and I mangle it up a little bit but good enough for government work – that anybody who gives up liberty for security really doesn’t deserve either, and that is certainly true.

But today, I thought that a different founding father would be appropriate for wrapping up. James Madison, the father of our Constitution, said accumulation of executive, judicial, and legislative powers into the hands of any faction is the very definition of tyranny. Madison went on to assure the nation that the Constitution protected us from that state.

So my question today is by allowing the executive to secretly follow a secret interpretation of the law under the supervision of a secret non-adversarial court and occasional secret congressional hearings, how close are we coming to James Madison’s very definition of tyranny?

I believe we’re allowing our country to drift a lot closer than we should and if we don’t take this opportunity to change course now, we and all Americans will live to regret it.

Thank you very much.


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