Senator Wyden: Public Has Been Actively Mislead By Government Officials Over Surveillance

Say That Again

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