Senator Ron Wyden, at a conference on National Security Agency surveillance sponsored by the CATO Institute, articulated many of the frustrations he had experienced in his patient effort to unveil to citizens the true scope of what the agency thought it had the authority to do. He also offered a preview of the upcoming battle in Congress to pass real comprehensive reform that is not only “skin deep.”
Wyden described bipartisan legislation he had introduced to set the bar for what “really constitutes real intelligence reform.” It would end the bulk data collection program under a provision of the PATRIOT Act known as section 215. It would create a “constitutional advocate” to ensure the process before the Foreign Intelligence Surveillance Court or secret surveillance court that authorizes NSA surveillance is no longer as “one-sided.” It would close a loophole allowing for “backdoor searches” and prohibit the collection of communications “about” a target instead of just communications to and from a target. And it would halt the practice of “reverse targeting,” where a foreigner is targeted in order to collect the communications of an American without a warrant.
“We wanted to put this marker down early because we know in the months ahead we will be up against a “business-as-usual brigade” – made up of influential members of the government’s intelligence leadership, their allies in think tanks and academia, retired government officials, and sympathetic legislators,” Wyden explained.
He added they will “try mightily to fog up the surveillance debate and convince the Congress and the public that the real problem here is not overly intrusive, constitutionally flawed domestic surveillance but sensationalistic media reporting. Their end game is ensuring that any surveillance reforms are only skin-deep.”
The arguments from this crowd, Wyden noted, “have something of an Alice in Wonderland flavor.” For example, “We have heard that surveillance of Americans’ phone records, AKA metadata, is not actually surveillance at all – it’s simply the collection of bits of information.” (This is what chair of the Senate Select Committee on Intelligence, Dianne Feinstein, has suggested in her effort to help save NSA surveillance powers.)
“We’ve been told that codifying secret surveillance laws and making them public surveillance laws is the same as actually reforming these overreaching surveillance programs. It’s not,” Wyden stated.
Wyden provided a glimpse at some of the work he and Sen. Mark Udall had done to hold NSA accountable. He mentioned the NSA ran a “bulk email records program under the authority of the PATRIOT Act, and intelligence officials spent years telling both Congress and the FISA Court that this program was vital to US counterterrorism efforts.” That was not true at all.
“Senator Udall and I spent most of 2011 pressing the NSA to provide actual examples of the bulk email records program’s effectiveness, but NSA officials were unable to do so. The bulk email records program was shut down that year. It was a big win for supporters of privacy and constitutional liberties, even though Senator Udall and I weren’t able to discuss it publicly until two years later,” he added.
This experience also demonstrated the importance of forcing intelligence officials to actually provide evidence to back up their statements, the way other government officials are expected to do.
Wyden’s speech to attendees highlighted some of the key outcomes that had resulted because former NSA contractor Edward Snowden took the step and blew the whistle.
Initially, in June, members of Congress reintroduced legislation that was “newly relevant” as a result of disclosures on secret surveillance programs or policies. “I was among them, offering my bill with Senator Udall to end bulk collection.”
The next phase that unfolded involved “new ideas” being proposed, such as reforming the secret surveillance court or allowing private companies to disclose much more information on their cooperation with the government. And then there was another phase where those ideas were melded into one package that could be called “comprehensive reform.”
Though Wyden did not explicitly name Snowden, what he said tacitly acknowledged that those in Congress interested in reform were in a better position now because of the action he decided to take.
Wyden highlighted how the “business-as-usual brigade” has argued “vociferously that any intelligence agency employee who is alarmed about surveillance activities that may be illegal, harmful or ineffective already has plenty of avenues for raising concerns.” He countered, “Even if an employee had a reason to think that raising concerns through official channels would do some good, the fact is that the whistleblower laws are deeply flawed and it doesn’t make much sense to speak up if you have to take your complaint to the people you’re complaining about.”
It will take a groundswell of public support for real reform to be passed, if it is going to be passed at all. There is quite a bit of cynicism, some of it debilitating even if reasonable. This is what Wyden said citizens can expect going forward.
The intelligence leadership can be expected to “argue for limiting the advocate’s mandate and resources” when arguing cases before the secret surveillance court. They will argue that these advocates should not be “allowed to appeal cases or assist private companies and individuals that want to challenge overly broad surveillance orders.”
“Defenders of the status quo” will “attempt to codify the surveillance authorities that reformers want to repeal,” he said. The Executive Branch is also likely to oppose more openness and transparency for the intelligence community.
However, there is a reason why any “trust us” arguments should be rejected.
The Founding Fathers wrote the Fourth Amendment to prohibit general warrants. Rules governing NSA do not “involve individual review by a judge,” which means “if the NSA decides that it wants to look through the bulk phone records database or conduct a backdoor search for a particular American’s emails it can do so without getting the approval of anyone outside the NSA.”
The intelligence agencies have “broken the rules and they have been broken a lot.”
In 2009 the FISA Court itself ruled that, and I quote: “The minimization procedures proposed by the government in each successive application and approved as binding by the orders of [the FISA Court] have been so frequently and systematically violated that it can fairly be said that this critical element of the overall [business records] regime has never functioned effectively.” What does that legal jargon mean? That’s legalese for a serious smack down of the government by the court. Even if these rules were somehow written in a way that totally erased the privacy impact of bulk records collection – which I don’t think is possible – the fact is that the routine violations of these rules over the years clearly demonstrate that trying to rely on them is a flawed approach.
“It’s going to take grassroots support from lots of Americans across the political spectrum who let their members of Congress know that they want about both their security and their liberty to be protected, and that business as usual is no longer okay,” Wyden further suggested. But he maintained that now more than ever there will be “reformers” in Congress willing to listen to Americans if they make their concerns about surveillance known.
*As of 2:20 pm EST, the day-long conference at the CATO Institute is still ongoing and can be watched here.