Wyden was one of only ten senators to vote against the re-authorization of the PATRIOT Act in 2006. And in March of last year, he and Sen. Mark Udall (D-CO) said Americans would be “stunned” to learn how the Executive Branch was interpreting certain provisions of the law to expand its surveillance power using programs such as the National Security Agency’s sweeping collection of metadata from cell phone and internet companies recently revealed by former NSA contractor Edward Snowden.
At CAP’s event on Tuesday, Wyden claimed — as he did during the debate over drones earlier this year — that there’s a large gap between what the American people believe a law to be and how the Executive Branch interprets it. When it comes to the siphoning up of data from American citizens, “the public was actually misled,” Wyden said, in statements from top intelligence officials including NSA Director Gen. Keith Alexander and Director of National Intelligence James Clapper.
That secret interpretation of the law is upheld, Wyden said, through the use of the Foreign Intelligence Surveillance Act (FISA) Court, which saw its powers expanded greatly after 9/11. While originally meant to rule on wiretap petitions against possible foreign agents under FISA, the Court has now become the source of broad rulings backing the gathering of information from broad swaths of Americans indefinitely. “There is no other court in America that has strayed so far from the adversarial process,” Wyden said, pointing out that since its rulings are secret, they’re almost impossible to appeal.
Not all programs revealed in the recent leaks found themselves under fire from the senator. When it comes to the NSA’s filtering through internet communications, including the use of the PRISM program, Wyden noted that the agency’s collection had created “information with real value.” Congress should add further privacy protections to Sec. 702 of the PATRIOT act, which authorizes the program, Wyden said, noting that “one program is doing all the work, while the other is along for the ride.”
While Wyden was unable to comment in detail on whether spying programs exist beyond those now revealed, he made clear that he believes that the current incarnation of the PATRIOT Act would authorize nearly limitless intrusion into citizens’ lives. “If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we will all live to regret it,” Wyden warned. “The combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action could lead us to a surveillance state that cannot be reversed.”
Following the speech, Wyden was asked about the House Defense Appropriation Bill and the amendment co-sponsored by Reps. Justin Amash (R-MI) and John Conyers (D-MI) that, as the Hill noted, “end the authority the NSA has under the Patriot Act from collecting any communications records from people who are not subject to an investigation under that law.” “I haven’t seen what the Congressman is actually proposing,” Wyden said, “but the fact that this has made it to the floor of the House of Representatives is an unquestionable good.”
Senate Intelligence Committee Chair Dianne Feinstien (D-CA) and Ranking Member Saxby Chambliss (R-GA), however, found the Amash-Conyers amendment to go too far, issuing a joint statement saying “that any amendments to defund the program on appropriations bills would be unwise.” When ThinkProgress asked whether he disagreed with the two, Wyden demurred. “I can’t speculate on something I haven’t seen,” he said, adding that “I think it is a very, very healthy thing that the House is having a debate and starting the effort to expose the false choice” between privacy and security.
Snowden has been criticized for the way in which he chose to reveal the programs listed. Given his emphasis on his efforts to work within Senate rules on classification to reveal to the American public the extent of these programs, ThinkProgress asked Wyden whether he considered the process in which Snowden leaked that information to be irresponsible. Wyden noted that it’s his policy not to comment on individuals charged criminally, as Snowden has been, and that “this is a debate that should have been started by elected officials, not Mr. Snowden, and I feel very strongly about that.”
In a report released today, CAP researcher Peter Juul outlined the steps that Washington could take to adapt intelligence gathering to new issues surrounding privacy and technology. Among the policies offered to prevent Wyden’s dystopic predictions from coming to pass include updating the rules for online privacy, reforming the use of contractors in the intelligence sphere, and modernizing the FISA Court.