THE BLOG
07/31/2013 05:18 pm ET Updated Sep 30, 2013

Senator Ron Wyden: How We Forced the NSA to Curtail Email Spying

In recent months, Senator Ron Wyden has emerged again as one of the most trenchant and persistent critics of the surveillance activities of the National Security Agency and the secrecy policies of the Obama administration. He voted for the original PATRIOT Act but now, along with Senator Mark Udall (D-CO), is seeking to amend it. I spoke with the Oregon Democrat about secrecy, intelligence, the Snowden case, and how to curb abuses without compromising national security.

Joe Conason: I'd like to begin by asking where would you as a responsible legislator -- and somebody who has a broad overview of this problem -- draw the constitutional line on surveillance of American citizens?

Senator Ron Wyden: This is a hugely important question...So much of what passes for so-called debate is, "So Ron, where would you draw the line between protecting security and protecting privacy?" And I feel very strongly that to frame the discussion that way is to have a discussion about false choices where, in effect, Americans are asked, "So, do you want to either be safe, or do you want to be free?" The truth is, responsible public policy makes it possible to protect both. What you've got to do is make it a priority, and I don't think our government has done a particularly good job of doing that over the past decade. Fortunately what has happened, particularly in the last eight weeks or so, is the landscape has started to shift significantly. I see that on the basis of such developments as the latest Quinnipiac poll, which shows a dramatic shift in terms of people's concern about their liberties being encroached upon. I hear it at town hall meetings. I hear it at senior citizen centers, and I can tell you, Joe, eight weeks ago people didn't come up to me at the barbershop and ask me about the FISA [Foreign Intelligence Surveillance Act] law.

Conason: When George W. Bush was president, I wrote a book saying basically what you're saying now, that we shouldn't have to make that false choice -- that choice is being imposed on us by Bush and [Vice President Dick] Cheney. Now we have President Obama, a constitutional scholar whom everybody believed saw things more that way, yet nothing has changed, and it seems that the government is still imposing that choice on us. So how do we achieve security without compromising civil liberties?

Wyden: Let's take an example. Instead of these false choices and some of the policies they produce -- like this idea of bulk collection of the phone records of millions of law-abiding Americans -- I think there ought to be PATRIOT Act reforms along the lines of what Senator [Mark] Udall [D-CO] and I have proposed...If you have reasonable suspicion that someone is a terrorist, you can get their phone records and the phone records of those associated with them, so there's a connection to terror. And if you have reasonable suspicion to believe that such an individual is connected to terror, you can go to the FISA court and get the ability to obtain their records. That's an example of the way in which you ensure both liberty and security, and you address the question that you're talking about as opposed to the status quo which, I think, is really infringing on the rights of every man and woman in the country.

Conason: Do you agree, though, that the government needs to maintain some secrets, some classified information?  I know everybody agrees classification is overly broad, sometimes ridiculous now, but the government has to keep some things secret. No?

Wyden: Your question is also right at the heart of the debate. The key distinction here is to understand there is a difference between secret operations and secret law. Secret operations, which are essentially involving the sources and methods that are used by those in the intelligence community that are on the front lines trying to keep our people safe -- it's critically important that they not be divulged, that people understand that that's off limits. Because those secret operations rely, in fact, on making sure that those who do not wish us well aren't aware of those operations. But secret operations and secret law are very different things, and what has been at the heart of what Senator Udall and I have been saying. Secret law is wrong. Our laws are supposed to be public.

But the reality is, as I tell Oregonians all the time, today in America there are essentially two PATRIOT Acts. There's the one that you can read on your laptop -- the public one -- and then there is another secret interpretation of the law, and the secret interpretation is remarkably different from the public interpretation, and suffice it to say when people until recently read the statute, the PATRIOT Act statute, and particularly section 215, there was nothing in there that resembled the ability of the government to go out and collect millions and millions of phone records on law-abiding persons. That's because there is a gap between essentially what the public thinks the law is and what the secret law is.

So on the question of secrecy, you bet. To ensure that the courageous men and women who work in the intelligence field can take steps to protect our country at a dangerous time, their operations need to be kept secret, but there is a very significant difference between secret operations and secret law.

And let me give you an example. The FISA law, the original law really came out of the '70s, the height of the Cold War, and so obviously we're trying to deal with the Soviets' tremendous drumbeat of concern about it, and I guess somebody could have said at that time, "Well, let's just keep the FISA law secret back when we're writing this thing, because that way the Soviets wouldn't have any idea what we were up to in terms of, again, the law with respect to surveillance." But there at the height of the Cold War, nobody seems to have thought for a second about the idea of keeping the entire law secret, because that's not the way we do it in our country.

Conason: So if the government needs to maintain some secrets, including not just operations but also some diplomatic communications and so forth, what should happen to somebody like Edward Snowden or Bradley Manning, who are government employees or contractors who revealed this kind of information? Should they be prosecuted?

Wyden: Well, let me talk to you about Mr. Snowden first, and then I want to get into the question of the contractors, because they're two separate kinds of issues. I have a very strong policy that when somebody has been charged criminally -- and Mr. Snowden has been charged with espionage, of course -- I don't comment on that, because that is a criminal investigation. From a policy standpoint, it is in my view representative of the problem that this debate was started by Mr. Snowden as opposed to the Congress and the elected officials of this country.

As you know, there has been an explosion in the growth of the contractors. It's hard to even get the numbers of how many contractors there are, and the reliance of the intelligence community on contractors is an area that clearly needs to be investigated and examined carefully. I reached the judgment that there are certainly jobs where you can argue it's appropriate to use a contractor, but I don't think contractors should ever, ever be performing inherently governmental functions. For example, I was an early opponent of the CIA's use of contractors to conduct interrogations of prisoners, and my view is when the Intelligence Committee's interrogation report eventually gets declassified, I think Americans are going to see that it was a mistake to use contractors for those interrogations.

Conason: Do we need some kind of whistleblower protection for employees of the intelligence community, whether they're contractors or government employees?

Wyden: Well, I have been a very strong supporter of whistleblower protections, and fortunately late last year I was able to derail legislation that would have dramatically harmed both whistleblowers and the public's right to know. In the Intelligence Committee, legislation was advanced to deal with what the sponsors call leaks -- and I'm against leaks like everyone else -- but this legislation was so broad it would have done extensive damage to whistleblowers in particular. It would have, for example, denied whistleblowers their pension rights without due process, and it would have made it harder for the press to even get non-classified information from people who had previously been spokespersons in the executive branch -- and I was the only person on the Intelligence Committee who opposed the bill. When it came out to the floor of the Senate, I put a hold on the bill. And then as Americans began to see how flawed the legislation was, it was just eviscerated and all of the anti-whistleblower provisions and the provisions that would have harmed the public's right to know were struck. I consider this one of the big efforts of the last few years for our side, you know, really putting points up on the board for the cause of openness and transparency in intelligence policy as protecting whistleblowers.

Conason: If somebody like Snowden...came to you and said, "Senator, I don't want to flee the country. I want to reveal this information. I think it's in the national interest," what would you have done?

Wyden: I can't comment on something like that, Joe, but I could tell you that, of course, I was already aware of the fact that millions and millions of records were being collected on law-abiding people. And I had spent all that time dealing with the fact that the head of the NSA had said, "we don't collect any data at all," and I kept trying to pin that down because, again, it just cried out for follow-up. We weren't able to get answers, and that's why I notified [Director of National Intelligence] General [James] Clapper  the day before the public hearing, that I was going to ask him on the record to respond... He had said repeatedly that they don't collect data. We were very troubled by all those comments because they were in a public forum...So I think I'll leave it at that. I would always advise someone not to breach the law, but I can't comment on that any further.

Conason: Do you know whether the government is storing all telephone and email information, not just metadata?  Are you aware of what the configurations of the data storage are that the government's engaged in now?

Wyden: I know a substantial amount with respect to data storage, but I can't get into those kinds of issues. The NSA had made public statements that they keep records. I believe it's for five years... I want to go back and look at their precise statement, but I believe they have said that they keep the phone metadata for five years.

Conason: Well, we know they're looking at emails, too, and the question is [whether they've been] storing emails.

Wyden: Well, there was an important development with respect to emails on that. This has now been declassified, but Senator Udall and I pushed very hard inside the Intelligence Committee to make the case that the bulk collection of the email records invaded people's privacy and was not effectual. And the Obama administration a few weeks ago said that they had closed the program down for what they called operational reasons, and Senator Udall and I pointed out that we had spent a lot of time, and I believe the fact that two members of the committee made it clear that they were going to be relentless about exposing both the problems for Americans' privacy rights and the ineffective nature of the program was the real reason it was closed down.

Conason: Would you have any reason to believe that NSA has monitored any members of Congress or the Senate?

Wyden: I have no reason to believe that any member of Congress has been monitored...Certainly members of Congress are going to be in the phone metadata. I mean, the question is, why wouldn't they be? I guess the question is what monitoring means, but members of Congress and everyone else, their phone metadata, who they called, when they called, where they called from, is part of this program, and experts call it a human relations database. Some people say, "Well, nobody's listening to my conversation, so what do I care that the government has these records?" Well, you learn an enormous amount about people from learning who they called, where they called from, and when they called. If somebody calls a psychiatrist a few times in 48 hours, you know, a couple of times after midnight, you learn a lot about that person -- and that's why it's so important that there be a connection to terror here, rather than vacuuming up millions and millions of phone records.

Conason: How do you feel about the FISA court process itself, specifically the process for appointing FISA judges? Should that process be opened up to greater scrutiny?

Wyden: I think the FISA court is an anachronistic court that needs significant reforms. I mean, you know, its rulings of course are secret. They have been issuing extraordinarily broad rulings including the mass surveillance of law-abiding Americans... I don't know of any other court in the country that strays this far from what has been our judicial system for literally centuries. I've been pushing very hard to get the legal analysis behind their rulings made public...In 2009 I actually got a written commitment from Obama administration intelligence officials that they would begin to start declassifying... FISA court decisions, and over these years -- more than four -- not a single opinion has been released.

Conason: Our readers wonder what is the real attitude of the president and his administration on this issue? Is the president sincerely interested in reform here, or do you feel that they're going to resist every real effort at reform right now?

Wyden: Well, you know, the president has told me personally that he wants to have a debate about reforms. I will tell you my gut feeling is that the administration is looking of their own volition at reforms in the bulk phone-records collection area...What I've been trying to do, in my discussions with the Obama administration, is to make the case, particularly with respect to leaders in the intelligence community, just how far off the rails this has gone. You've had prominent intelligence officials not just keep the American people in the dark, but they've actually misled the American people....Intelligence officials at the highest level have to be straight with the American people and with the Congress, and too often that has not been the case.

I mean, they show up at congressional hearings and they say that the phone records program is like a grand jury subpoena kind of process. I don't know of grand jury proceedings that, on an ongoing basis, authorize the collection of millions and millions of phone records. So yesterday [during a speech at the Center for American Progress], I said, "I'm sure we've got some lawyers here. If any of you want to come up after the talk, and tell me about any grand jury proceedings that on an ongoing basis authorize the collection of millions and millions of phone records of law-abiding Americans, come on up."  I was not exactly swarmed in the process. [Laughter.]

You can read Joe Conason's previous interview with Senator Wyden here.