"If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we are all going to live to regret it," Sen. Ron Wyden (D-OR) warned during a lengthy but powerful speech before the Center for American Progress on Tuesday.
In his remarks, Wyden, who has served on the Senate Intelligence Committee since January 2001, left no room for anyone to doubt the liberating impact of the recent revelations by former NSA contractor Edward Snowden. For years, Wyden said, he had wanted to expose the extent to which the Executive Branch of our government and the leaders of the "intelligence community" had deceived the public about the NSA's domestic surveillance programs, but, due to Senate's rules in regard to classified material, he was "not even allowed to tap the truth out in Morse code."
That roadblock has been removed. "The disclosures by an NSA contractor lit the surveillance world on fire," Wyden told the assembled students, journalists and policy wonks yesterday. "Several provisions of secret law that were secret were no longer secret, and the American people were finally able to see some of the things we [he and Sen. Mark Udall (D-CO)] had been raising the alarm about for years."
That alarm centered not only on the unprecedented extent of the NSA's still-expanding, domestic surveillance capabilities but also, as he explained, on the unnecessary and dangerous, post-9/11 development of a secret system of laws that threatens to eradicate the very essence of democracy and accountability.
These provisions, he warned, allow "the Executive to secretly follow a secret interpretation of the law under the supervision of a secret, non-adversarial court and occasional secret Congressional hearings"...
According to Wyden, the post-9/11 PATRIOT Act and FISA Amendments Act have done more than facilitate a level of domestic surveillance. If allowed to expand, unchecked, he argued, they could turn "the idea of a telescreen monitoring your every move...from dystopia to reality."
The Senator says that the Acts created, for the first time in our nation's history, a secret system of laws. Foreign Intelligence Surveillance Act (FISA) Courts, operating in secret and relying only upon the one-sided, non-adversarial secret presentations by government lawyers, issue decisions that only the government is permitted to see.
It is a fundamental principle of American democracy that laws should not be public only when it is convenient for government officials to make them public…If Americans aren't able to learn how their government interprets and executes the law, then we will have eliminated the fundamental bulwark of our democracy.
Without public laws, and public court rulings interpreting those laws, it is impossible to have informed public debate. And when the American people are in the dark, they can't make fully informed decisions about who should represent them, or protest policies that they disagreed with.
When "President Obama came into office," Wyden wryly added, "his administration agreed...these rulings needed to be made public. In the Summer of 2009, I received a written commitment from the Justice Department and the Office of the Director of National Intelligence that a process would be created to start redacting and declassifying FISA court opinions"
However, Wyden lamented, over the past "four years, exactly zero opinions have been released."
Indeed, as revealed by Mark Rumold, an attorney at the Electronic Frontier Foundation (EFF) when interviewed by Brad Friedman, the government has not only failed to make redacted versions of FISA court rulings public, but has continued to obstruct public access to a 2011 FISA court decision declaring a particular NSA procedure to be unconstitutional. That, even after the FISA court authorized the government to release the decision in response to EFF's Freedom of Information Act request.
Wyden underscored why he believes there is no need for a system of "secret laws," noting that the original FISA statute was passed at the height of the Cold War; yet, despite the Soviet menace at the time, which was surely as much of a threat as al-Qaeda and its "associated forces", no one at the time saw a need to conceal the rules under which our intelligence agencies operated.
Scope of surveillance
Wyden took issue with those in the intelligence community who've sought to minimize the impact of the "bulk collection" of phone and email records. "If you know who someone calls, when they called, where they called from and how long they talked, you lay bare the personal lives of law abiding Americans to the scrutiny of government bureaucrats and outside contractors," Wyden said, echoing the argument made by then Senator Joe Biden in 2006. "This is particularly true if you are vacuuming up cell phone data, essentially turning everybody's cell phone into a tracking device."
Under the PATRIOT Act, the ability to collect "sensitive information," such as medical and financial records, who reads what books and journals, is, according to Wyden, "essentially limitless."
"Without additional protections in the law, every single one of us…may be and can be tracked and monitored anywhere we are at any time. The piece of technology we consider vital to the conduct of our everyday personal and professional life happens to be a combination phone bug, listening device, location tracker and hidden camera."
It is the combination of this limitless surveillance with secret laws, Wyden asserts, that could prove fatal to democracy.
"Merging the ability to conduct surveillance that reveals every aspect of a person's life with the ability to conjure up the legal authority to execute that surveillance, finally removing any accountable judicial oversight, creates the unprecedented opportunity to influence our system of government," he warned.
Assault on First Amendment
Wyden explained that, late last year, the government sought to add secret "anti-leak provisions" to the annual Intelligence Authorization bill while it was in Committee. Those provisions, he said, "would have been disastrous to the news media's ability to report on foreign policy and national security. Among other things, it would have restricted the ability of former government officials to talk to the press, even about unclassified foreign policy matters. And it would have prohibited intelligence agencies from making anyone outside a few high-level officials available for background briefings on unclassified matters."
After the anti-leak provisions moved to the full Senate, and became public, "it was promptly eviscerated by the media and free speech advocates," Wyden wryly noted.
That made for an excellent lead-in for Wyden's conclusion, as the fate of that bill was precisely the check against tyrannical executive power that our Founding Fathers had in mind in creating our constitutional Republic.
"James Madison, the father of our constitution, said that the accumulation of executive, judicial and legislative powers into the hands of any faction is the very definition of tyranny," the Senator warned in closing. "He then went on to assure the nation that the Constitution protected us from that fate. So, my question to you is: by allowing the executive to secretly follow a secret interpretation of the law under the supervision of a secret, nonadversarial court and occasional secret congressional hearings, how close are we coming to James Madison’s 'very definition of tyranny'? I believe we are allowing our country to drift a lot closer than we should, and if we don’t take this opportunity to change course now, we will all live to regret it."