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.
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.
Edward Snowden has said publicly that he, too, tried to play by the rules, and made the decision to leak only after realizing the depth of that culture of misinformation you speak of. Do you think he acted correctly, or was there some other way this information could have come out?
Years ago, because I made the judgment of how important it was to try to drive these policy reforms – and because when you’re on the Intelligence Committee and you get into making these comments, it just never stops – I said, “I am not going to comment when somebody in the intelligence field is part of an ongoing criminal investigation.” And [Snowden] has, of course, been charged with espionage. So I’m just gonna stick to that one.
But do you think a charge of espionage is appropriate? Many people believe Snowden is a whistleblower.
I’ve made my statement about Mr. Snowden. But setting that aside, what’s happened in the last eight weeks really takes your breath away. I mean, eight weeks ago, we would not have had a debate on the floor of the House of Representatives on these issues. Eight weeks ago, we would not have gotten two hundred or more votes. Eight weeks ago, we would not have the NSA taking down fact sheets after members of the United States Senate took them on. Eight weeks ago, we would not have had bills coming in from both chambers on a whole host of subjects. These issues, which were unheard of eight weeks ago, I now have people coming up to me at the barbershop, asking me about the Foreign Intelligence Surveillance Act.
There has been a huge expansion of private contractors since 9/11, especially in the intelligence arena. Isn’t it time for Congress to draw a line on what contractors should be doing for the NSA and other US intelligence agencies?
Yes. And I think this is an extremely important issue. We can’t even get our arms around how many there are and what it is they’re doing, and this is another area that is really urgent business on the reform agenda. I think there are certainly areas where contractors can perform a useful role. But when you’re talking about an inherently governmental function, I think that’s where I draw the line. It is clearly time for the Congress to get to the central policy question here, and that is to recognize that there is a difference between a whole host of functions that contractors can perform that are not inherently governmental and these roles for contractors that are inherently governmental. One that is going to be part of an upcoming debate, I hope, which is something Senator Udall and I and others are pushing, is to declassify that report on torture. I think it will give us new momentum for drawing a sharp line on the contractor issue . . . and I think when Americans get to read about the role of contractors in some of those interrogations, they’re going to share our view.
What, finally, do you think is the best way to make sure we don’t go backwards? Should there be prosecutions? Are there other ways to encourage more transparency?
The way we deal with this best, in my view, is to recognize this is a unique time in our constitutional history. These digital technologies have grown so rapidly, and we really can’t even get our arms around it. It used to be that the limits on technologies were to a great extent a form of protection for the American people. A lot of that seems to be going to the wind. We’re sitting here with computers in our pockets, smartphones, with the ability to track people 24/7. These issues are as important as it gets. And Americans have a right to real debate [on] the way you deal with the constitutional teeter-totter of liberty and security. It’s hard to think of anything more important to our country and our bedrock values. And I think what will protect people now will be the laws that we write to rein in this omnipresent, ever-expanding surveillance state. And if we don’t do it now – if we don’t recognize that this is a truly unique moment in America’s constitutional history – our generation’s going to regret it forever.