from the indeed dept
While some Senators are insisting that we need to keep going with NSA surveillance and just trust them that the NSA and FBI aren’t abusing the law and the information they have access to, others are pointing out that it’s a lot of hogwash. Senator Ron Wyden, who has been leading the charge against these programs for years (and was mostly ignored for that effort), gave a great speech describing how defenders of the program are directly choosing to mislead the American public. A key point, though it comes late in the speech, is the following:
The public was not just kept in the dark about the Patriot Act and other secret authorities. The public was actively misled.
Most of the speech is detailing exactly how that happened, and the distortions defenders of the program try to tell the American people and why they’re wrong. We’ll highlight a few, but reading or watching the whole speech is worthwhile.
He notes that he warned, quite specifically (and publicly) that when the American public found out how the laws were being interpreted, they would be surprised. That, clearly, proved accurate:
When the Patriot Act was last reauthorized, I stood on the floor of the
United States Senate and said “I want to deliver a warning this afternoon.
When the American people find out how their government has interpreted
the Patriot Act, they are going to be stunned and they are going to be
angry.” From my position on the Senate Intelligence Committee, I had seen
government activities conducted under the umbrella of the Patriot Act that
I knew would astonish most Americans.
Furthermore, he points out that officials chose to directly mislead the American public.
If that is not enough to give you pause, then consider that not only were the
existence of and the legal justification for these programs kept completely
secret from the American people, senior officials from across the
government were making statements to the public about domestic
surveillance that were clearly misleading and at times simply false.
The misleading statements from the officials are based on how the government interprets the law as compared to how the public actually reads the law:
…there are effectively two Patriot Acts the
first is the one
that they can read on their laptop in Medford or Portland, analyze and
understand. Then there’s the real Patriot Act the
secret interpretation of
the law that the government is actually relying upon. The secret rulings of
the Foreign Intelligence Surveillance Court have interpreted the Patriot
Act, as well as section 702 of the FISA statute, in some surprising ways,
and these rulings are kept entirely secret from the public. These rulings can
be astoundingly broad. The one that authorizes the bulk collection of phone
records is as broad as any I have ever seen.
And, of course, such a situation is clearly anti-democratic:
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 disagree with. These are
fundamentals. It’s Civics 101. And secret law violates those basic
principles. It has no place in America.
Furthermore, Wyden digs into the ridiculous claim by defenders of the NSA — including from President Obama, Senator Feinstein and NSA boss Keith Alexander — that there is sufficient “oversight” in these programs because others in the government review them. That, of course, is ridiculous:
…when James Madison was attempting to persuade Americans
that the Constitution contained sufficient protections against any politician
or bureaucrat seizing more power than that granted to them by the people,
he did not just ask his fellow Americans to trust him. He carefully laid out
the protections contained in the Constitution and how the people could
ensure they were not breached. We are failing our constituents, we are
failing our founders, and we are failing every brave man and woman who
fought to protect American democracy if we are willing, today, to just trust
any individual or any agency with power greater than the checked and
limited authority that serves as a firewall against tyranny.
As for the claims by defenders that the business records collection is no different than a grand jury subpoena, Wyden rightly calls bullshit on that:
For years, senior Justice Department officials have told Congress and the
public that the Patriot Act’s business record authority which
is the
authority that is used to collect the phone records of millions of ordinary
Americans is
“analogous to a grand jury subpoena.” This statement is
exceptionally misleading it
strains the word “analogous” well beyond the
breaking point. It’s certainly true that both authorities can be used to
collect a wide variety of records, but the Patriot Act has been secretly
interpreted to permit ongoing bulk collection, and this makes that authority
very, very different from regular grand jury subpoena authority. Any
lawyers in here? After the speech is over come up and tell me if you’ve
ever seen a grand jury subpoena that allowed the government on an
ongoing basis to collect the records of millions of ordinary Americans. The
fact is that no one has seen a subpoena like that is because there aren’t any.
This incredibly misleading analogy has been made by more than one official
on more than one occasion and often as part of testimony to Congress. The
official who served for years as the Justice Department’s top authority on
criminal surveillance law recently told the Wall Street Journal that if a
federal attorney “served a grandjury
subpoena for such a broad class of
records in a criminal investigation, he or she would be laughed out of
court.”
Going even further, he trashes the claims that this is all okay because intelligence officials tell Congress “the truth” behind closed doors in classified sessions. As he notes, this means that they’re lying to the public, and that’s not right:
Sure, members of Congress COULD get the full story in a classified
setting, but that does not excuse the practice of half truths and misleading
statements being made on the public record. When did it become all right
for government officials’ public statements and private statements to differ
so fundamentally? The answer is that it is not all right, and it is indicative
of a much larger culture of misinformation that goes beyond the
congressional hearing room and into the public conversation writ large.
And all of this spying and deceit has a very real impact on our democracy:
James Madison, the father of our constitution, said that the the
accumulation of executive, judicial and legislative powers into the hands
of any faction is the very definition of tyranny. 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.
Democracy isn’t electing officials to lie to the public while enabling the vast intelligence community to spy on everyone via secret court orders. It’s time that the public spoke up and made it clear to our elected officials that this is not what we signed up for at all.
Filed Under: dianne feinstein, fisa amendments act, james clapper, keith alexander, nsa surveillance, patriot act, ron wyden