Why can't the NSA be transparent about what it has access to? Why do these laws need to be secret?
The law should never be secret. Most Americans expect that the military and intelligence agencies will sometimes need to conduct secret operations, but they rightly expect those agencies to follow publicly understood rules - not a secret body of law. When Congress wrote the Foreign Intelligence Surveillance Act in 1978, I suppose they could have found some way to keep its details a secret, so that Soviet agents wouldn't know what the FBI and NSA's authorities were. But Congress made that law public, because it's a fundamental principle of democracy that laws should be public all the time, and every American should be able to find out what their government thinks the law means.
You recently proposed major legislation to reform the FISA court, some of which the President seems to agree with. What do you think are the key ways that it could be more transparent?
The FISA court is arguably the most bizarre court in the United States. This is the only court I know of that is structured to hear essentially one side – it comes from the government. A group of judges operating in complete secret and issuing binding rulings based solely on the government's arguments have made possible the sweeping surveillance authorities the public only found out about [recently.] What's noteworthy is there has been nobody there to argue the other side, and that is what we want to change. This court has to be reformed to include an adversarial process where arguments for greater privacy protections can be offered alongside the government's arguments for greater surveillance powers. It should have a selection process that produces a more diverse group of judges, and a process to ensure that its important rulings are made public so that American people can understand exactly what government agencies think the laws allow them to do. It was a lack of protections like these that allowed secret law to persist for so many years.
What are your major beefs with U.S. intelligence leaders?
I think a number of the intelligence leaders have been part of what I call a "culture of misinformation." I find it troubling that the Director of the NSA went to a conference at the American Enterprise Institute and said they don't hold data on U.S. citizens. I think that was one of the most false statements ever made about surveillance. In addition to that, he made similarly misleading comments about collecting "dossiers" on Americans at the DefCon hacker convention in summer 2012. This was a senior intelligence official with the highest clearance possible making misleading statements to the public. Senator Mark Udall and I wrote him a letter asking him to correct and clarify his remarks. He corrected some of them, but he declined to clarify his comments about collecting information on "millions or hundreds of millions of Americans." Senator Udall and I also wrote to the Director of National Intelligence, but he too declined to clarify the NSA Director's remarks. I've got all those letters up on my website if anybody would like to read them.
In March, you asked the Director of National Intelligence, James Clapper, whether the government knowingly collected data on millions of Americans, and he answered "not wittingly" – which we now know was, basically, a lie. Yet Clapper has described it as "the least untruthful" answer he could have given. What's the story behind that?
After both the NSA Director and the Director of National Intelligence declined to clarify these remarks in writing, I decided it was necessary to ask the Director of National Intelligence about them at an open hearing. I sent the question over a day in advance so that he would be prepared to answer it. They didn't ask me not to ask the question – and when they've made requests like that for security reasons, I've always respected them. If they had asked me not to ask the question I would have not asked the question, though I would have kept trying to find a way to press them on it. When the Director gave an inaccurate answer to the question, I had my staff call his office later on a secure line and urge them to amend his response. They decided to let his inaccurate answer stand on the public record, until about a month after the Snowden disclosures. Even then, they started off trying to defend his answer, before finally admitting publicly that it had been inaccurate.
Didn't that strike you as rather hubristic? That these intelligence leaders simply refused to answer the questions, or outright lied? Where's the accountability?
Someone once compared talking to the intelligence community to a game of 20 Questions. You gotta keep asking, and asking, and asking. I understand they're not just gonna open up the drawers on everything. But I'm not sure those at the highest level have really come to see the implications of their not being straight with the Congress. The President has said repeatedly that this can only work if there is vigorous oversight by the Congress, and I couldn't agree with the President more. You can't do vigorous oversight if the intelligence leadership is not straight with the Congress, and with the American people. And, in fact, my view is, when they're not straight with the Congress, and they're not straight with the American people, our country ends up actually less safe, because it causes a reduction in confidence for the important work that front line people are doing.
You, though, have known for quite a while that these officials haven't been straight with us – and yet you weren't fully open until after the Snowden leak. Do you regret that you didn't say something sooner?
There are very significant limits [on what you can and cannot say], and they are very cumbersome and unwieldy. If you want to play a watchdog role, you try to work within the rules. This is a sensitive subject. A lot of people have just said to me, "Well, you feel so strongly about [these issues] – when you knew this, why didn't you just go to the floor of the United States Senate and just, you know, read it all [into the record]?" And, of course, anybody who does this kind of work thinks a lot about that. You think about it all the time. I can see why plenty of people would criticize me – progressives and others. I can understand why plenty of people who have views similar to mine would say they would have done it differently.
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