Terms like "bulk data collection" and "PRISM" may have only recently entered the national conversation, but Sen. Ron Wyden has been talking about them for years – or at least, trying to. The Oregon Democrat, who has come out as one of Congress' most vocal opponents of NSA surveillance, has been worried for nearly a decade that the government is violating Americans' privacy rights, and, as a member of the Senate Intelligence Committee, he's also been aware of the details. But given the stringent rules governing what elected officials with high level security clearances can and can't say, he's been unable to speak about these programs, let alone critique them. "For all practical purposes, there's almost a double standard with the rules," Wyden, a tall, jeans-clad 64-year-old, tells me in his Senate office overlooking Capitol Hill. "Leaders in the intelligence community can go out to public forums and say, 'We don't hold data on US citizens,' but I can't pop up the next day and say, 'Holy Toledo! That's just not right!'"
A member of Congress since 1981, Wyden hasn't always been this outspoken about privacy. In fact, like many of his colleagues, Wyden voted to authorize the Patriot Act after 9/11. He explains, "I was reassured that it had an expiration date that would force Congress to come back and consider these new surveillance authorities more carefully once the immediate crisis had passed." (By 2006, he was voting against reauthorizing the act.) Instead, surveillance became entrenched, as did a whole host of what Wyden calls "secret law" that governed these programs. In 2003, as Congress was voting to shut down the Pentagon's Total Information Awareness data-mining program (whose less-than-subtle logo was an eye casting an all-seeing gaze on the universe), the NSA's infamous warrantless wiretapping program was up and running – something that Congress, like the American public, wouldn't learn about until the end of 2005, when The New York Times broke the story. Wyden says he first learned that the government was collecting Americans' phone records in 2007. As he was unable to share what he knew, even with his own staff, he was left issuing a series of ominous, if vague, warnings. "When the American people find out how their government has secretly interpreted the Patriot Act," he said, during one speech on the Senate floor in May 2011, "they will be stunned and they will be angry."
Two years later, Americans have found out quite a bit, thanks to former intelligence contractor Edward Snowden, who leaked the details of a number of NSA surveillance programs to the press. As a result, Ron Wyden is finally having his moment. Since June, he has been on a relentless crusade to overhaul parts of the Patriot Act (a longtime goal), as well as reform the FISA court, and encourage more transparency from intelligence officials. On August 9th, the Obama administration, which has promised reforms since 2009, came through with a series of modest proposals, and produced a 22-page white paper that detailed the legal rationale for government snooping. A few weeks earlier, a proposal to amend the Patriot Act to severely limit the NSA's data-collection ability was defeated in the House by a vote of 217-205. This narrow margin is something Wyden couldn't have even dreamed of prior to June. Now, as he prepares to leave Washington for the summer recess, "I think Congress will come back in the fall and there will be new support for the kinds of views we're talking about," he says. "I mean, just in the last few days, I've heard Congress people who have said, 'I didn't vote for it the last time, but I want another shot at this. I'm not satisfied with the status quo.' I think our side is on the march," he adds. "And I want it understood that we're going to stay at this until we win."
You went from supporting the Patriot Act in 2001 to pushing relentlessly for its de-authorization. What was the tipping point?
My concerns obviously deepened when I first learned that the Patriot Act was being used to justify the bulk collection of Americans' records, which was in late 2006 or early 2007. So Senator Russ Feingold and I dutifully set about to write classified letters to senior officials urging them to make their official interpretation of the Patriot Act public. Back then, in those early days, we were rebuffed after we made repeated requests that the intelligence community inform the public what the government had secretly decided the law actually meant. In fact, there was a secret court opinion that authorized massive dragnet domestic surveillance, and the American people, by that point, were essentially in the dark about what their government was doing with respect to interpreting an important law.
You use the term "secret law" quite frequently – what do you actually mean by that?
I use the term "secret law" to refer to the federal government's increasing tendency to rely on secret legal analysis to justify major programs and activities, without telling the public exactly what government agencies believe the law allows them to do. This is fundamentally inconsistent with democratic principles, but it's unfortunately become increasingly common over the past decade. And the broad interpretations of the Patriot Act and other laws that have been issued by the secret Foreign Intelligence Surveillance Court are still secret, so right now the public can't see how the Court concluded that the government's authority to obtain records that are "relevant to an investigation" allowed the NSA to collect information on hundreds of millions of ordinary Americans. But there are an increasing number of lawmakers who are interested in pushing for more openness in this area, which is encouraging.
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