In recent months, U.S. Senator Ron Wyden has been ramping up efforts to address the Intelligence Community’s reliance on secret interpretations of surveillance law, arguing that while “intelligence agencies need to be able to conduct operations in secret, even secret operations need to be conducted within the bounds of established, publicly understood law.”
Wyden has been pressing the Intelligence Community to disclose more information about how it interprets surveillance law since 2008, while increasingly raising concerns – in both classified and unclassified settings – that there is a significant gap between what the American people and most members of Congress believe is legal under laws like the Patriot Act and how government agencies are interpreting the law.
Below is a timeline of Wyden’s public efforts:
12/11/12 FISA Correspondence Update
The reauthorization of the FISA Amendments Act of 2008 is expected to come up for a vote in the Senate before the end of this year.
Senator Wyden and a number of other Senators are trying to learn more about the privacy impact of the FISA Amendments Act and have pressed the National Security Agency and the Director of National Intelligence to provide more information.
Below is recent correspondence these Senators have sent and received from both the National Security Agency and the Director of National Intelligence regarding their privacy concerns.
11/15/2012 Clapper response to Senators’ Nov. 5 letter
11/13/2012 NSA response to Wyden-Udall Oct. 10 letter
11/05/2012 Senators’ letter to Clapper
10/10/12 Wyden and Udall Seeking Correction of National Security Agency Director Alexander Statement on FISA Minimization Requirements and Data Collection [Letter]
At a technology convention in Nevada, General Alexander of the NSA made misleading statements regarding minimization requirements that apply to the NSA’s FISA Amendments Act collection and in doing so portrayed privacy protections for Americans’ communications as being stronger than they actually are.
Senators Wyden and Mark Udall ask General Alexander to correct this statement so as to fully and accurately inform Congress and the public of the full impact on Americans’ privacy.
General Alexander also stated that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false.”
In light of this statement, Senators Wyden and Mark Udall asked again for the NSA to estimate the number of American communications which have been collected under FISA and suggested that, as evidenced by General Alexander’s statement, some estimates can indeed be made.
Additionally, because General Alexander’s statement referred to “dossiers” the Senators asked General Alexander to answer specifically whether or not the NSA collects “any” type of data at all on “million or hundreds of millions of Americans.”
8/24/2012 Office of the Director of National Intelligence Responds to Senators’ Request for Answers regarding the privacy impact of the FISA Amendments Act on Americans [LETTER]
In July 2012, Wyden and 12 other Senators requested unclassified answers from the Office of the Director of National Intelligence (ODNI) to four specific questions regarding how many US communications have been collected under FISA authorities and if the government has attempted warrantless searches of specific Americans’ communications.
The ODNI responded, but answered only two of the Senators’ four questions and only in a classified attachment. The response reiterated that the ODNI does not agree with the senators’ use of the term “loophole” to describe the intelligence community’s authority to conduct warrantless “back door searches” for Americans’ phone calls and emails.
7/26/2012 Wyden and 12 other Senators Request Unclassified Answers to FISA Questions [LETTER]
In preparation for the impending reauthorization of the FISA Amendments Act in November/December of 2012, Wyden and 12 other Senators (M. Udall, Lee, Merkley, Paul, Coons, Begich, Bingaman, Tester, Sanders, T. Udall, Durbin, and Cantwell), asked the Office of the Director of National Intelligence (ODNI) to provide unclassified answers to four specific questions to give more information on the law’s impact on Americans’ privacy rights, and allow Congress to consider whether additional privacy protections need to be added.
The four questions were:
- Have any entities made any estimates—even imprecise estimates—about how many US communications have been collected under section 702 authorities?
- Is it possible for the intelligence community to estimate the order of magnitude of this number? (For example, is it closer to 100, or 100,000, or 100 million?)
- To your knowledge, have any wholly domestic communications been collected under section 702 authorities? If so, can you estimate how many?
- Since the FISA Amendments Act does not prohibit searching communications collected under section 702 to find the communications of particular Americans, has the government attempted to search for the communications of specific Americans without a warrant or emergency authorization?
7/20/2012 Office of the Director of National Intelligence Agrees to Declassify Information About Secret Court Rulings on FISA Amendments [Letter]
In June 2012, Senator Wyden asked the Office of the Director of National Intelligence (ODNI) to declassify information regarding secret court rulings on the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA). In his inquiry the Senator stated that he “believe[s] that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached the same conclusion.”
The ODNI responded and agreed to declassify this statement, along with the statement that “on at least one occasion the Foreign Intelligence Surveillance Court has held that some collection carried out pursuant to [the FISA Amendments Act] was unreasonable under the Fourth Amendment.”
03/15/2012: Wyden and Udall Cast Doubt on Secret “Intelligence Collection Operation” [Letter]
In response to the Justice Department’s request that a judge dismiss lawsuits from the New York Times and the American Civil Liberties Union seeking more information about secret interpretations of the Patriot Act, U.S. Senators Ron Wyden and Mark Udall wrote again to U.S. Attorney General Eric Holder and urged him to reconsider the Justice Department’s stance on the use of secret law.
Significantly, the two senators noted that “in recent months we have grown increasingly skeptical about the actual value of the ‘intelligence collection program’ discussed in the Justice Department’s recent court filing” regarding the Patriot Act lawsuits. The senators added that “[t]his has come as a surprise to us, as we were initially inclined to take the executive branch’s assertions about the importance of this ‘operation’ at face value.”
Wyden and Udall also expressed significant concerns about the Justice Department’s insistence on keeping the official interpretations of the Patriot Act secret, stating “[w]e believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.” The senators reminded the Attorney General that the Department of Justice and the Office of the Director of National Intelligence committed in 2009 to establish a process for redacting and releasing significant opinions of the Foreign Intelligence Surveillance Court, but noted that “[t]wo and a half years later, however, this ‘process’ has produced literally zero results.”
03/05/2012: Wyden Says Attorney General’s Speech on Counterterrorism Authorities Leaves Questions Unanswered [Press Release]
In a response to a speech by U.S. Attorney General Eric Holder on counterterrorism authorities, Senator Wyden praised the Attorney General’s comments about the role of law enforcement in fighting terrorism, but noted that the Attorney General’s speech had left a number of questions about the President’s authority to kill American citizens unanswered. Wyden listed a number of specific questions about the limits of this power that remained to be answered, and said that “[t]hese questions should not be a matter of ‘secret law,’ settled behind closed doors by a small number of government lawyers – every American has a right to understand when their government believes it is allowed to kill them.”
02/08/2012: Wyden Presses Justice Department to Explain President’s Authority to Kill Americans [Letter]
In a letter to U.S. Attorney General Eric Holder, Senator Wyden again asked to see the secret Justice Department opinions that describe the President’s authority to kill Americans in the course of counterterrorism operations. Wyden called the Administration’s refusal to share these legal opinions “an indefensible assertion of executive authority.”
Wyden noted that “[i]f American citizens choose to take up arms against the United States in a time of war, there can undoubtedly be some circumstances under which the President has the authority to use lethal force against those Americans.” He added, however, that “when the United States is engaged in a military conflict with a terrorist group…questions about when the President may use lethal force against Americans whom he believes are part of this enemy force become significantly more complicated.”
Wyden concluded “I have an obligation to my constituents to review any classified legal opinions that lay out the federal government’s official views on this issue, and I will not be satisfied until I have received them.”
09/21/2011: Wyden and Udall Raise Concerns About “Misleading” Characterizations of Secret Legal Interpretations [Letter]
In a letter to U.S. Attorney General Eric Holder, Wyden and Udall reiterated their concerns about the Justice Department’s ongoing reliance on secret interpretations of U.S. surveillance laws noting that the “absence of publically available information about the government’s understanding of its authorities” doesn’t just make an informed debate on this issue impossible, but makes it possible for the public to be “misled or misinformed about the official interpretation of the law.”
The Senators raised specific concerns about what they called “highly misleading” statements repeatedly made by Justice Department officials including statements suggesting that the government’s authority to obtain business records or other ‘tangible things’ under section 215 of the USA PATRIOT Act is analogous to the use of a grand jury subpoena, as well as a DOJ spokesperson’s recent contention that “Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department.”
The Senators urged the Attorney General to correct the record, writing that if the executive branch remains unwilling to initiate an informed public debate – which they called “the best way to avoid a negative public reaction and an erosion of public confidence” -- “it is particularly important for government officials to avoid compounding the problem by making misleading statements.”
7/26/2011: Wyden Gets NSA's Top Lawyer to Confirm Secret Interpretations of Surveillance Laws [VIDEO]
During an open SSCI hearing to consider the nomination of Matthew Olsen to be director of the National Counterterrorism Center, Wyden took the opportunity to ask Olsen, then general counsel for the National Security Agency (NSA), if key portions of surveillance law have been subject to “secret legal interpretations.” Olsen answered in the affirmative and indicated that some of the pleadings and opinions related to the Patriot Act and FISA Amendments Act (FAA) have been “part of the proceedings before the Foreign Intelligence Surveillance Court.”
7/14/2011: Wyden and Udall Call for Informed Debate of Domestic Surveillance Law [News Release]
In a joint letter to the Director of National Intelligence, James Clapper, Senators Wyden and Mark Udall stressed the importance of being able to thoroughly review the FISA Amendments Act (FAA) and other aspects of surveillance law before Congress is asked to reauthorize the law. The Senators asked the director if it is possible to estimate the number of Americans whose communications have been reviewed under the FAA and if significant interpretations of the FAA are classified. The Senators also asked about the government’s authority to collect geolocation information on American citizens for intelligence purposes.
The ODNI responded to the senators’ letter on 7/26/2011 saying it was “not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.”
5/26/2011: In Speech, Wyden Says Official Interpretations of Patriot Act Must be Made Public [VIDEO]
During the debate to reauthorize certain provisions of the USA PATRIOT ACT, Wyden told his colleagues that “when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” While classification rules forbid Wyden from revealing the secret legal interpretations themselves, Wyden took the opportunity to revisit past secret government programs and the public outcry when the programs were revealed and Americans learned that their government was engaging in activities they thought were illegal.
5/25/2011: How Can Congress Debate a Secret Law? [Huffington Post Op-Ed]
In a joint op-ed, Senators Wyden and Udall explained that secret interpretations of the Patriot Act were preventing Congress from having an open, informed debate on the law’s extension. “In a democratic society, government agencies derive their power from the public's trust,” Wyden and Udall wrote, “Secret laws undermine that trust and authority, which then erodes and ultimately damages our ability to fight terrorism and protect the American people.”
5/25/2011: Senators Introduce Amendment Requiring Government to End Practice of Secretly Interpreting Law [News Release] [VIDEO]
U.S. Senators Ron Wyden (D-Ore.), Mark Udall (D-Co.), Jeff Merkley (D-Ore.) and Tom Udall (D-NM) introduced an amendment to the Patriot Act reauthorization to require the U.S. Attorney General to make the U.S. Government’s official interpretation of the law public. The amendment also stated that it is the “Sense of the Congress” that government officials “should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws and should not describe the execution of these laws in ways that misinforms or misleads the public.”
In a speech on the Senate floor, Senator Wyden introduced his amendment to require the government to declassify its secret legal interpretations of the Patriot Act and explained that while “Americans know that their government will sometimes need to conduct secret operations, they don’t believe their government ought to be writing secret law.” He said reliance on secret law violates the trust that the public places in their government and undermines confidence in government agencies and institutions, making it harder for them to operate effectively.
2/22/2011: Wyden Begins Effort to Amend Patriot Act [News Release]
After Congress passed a short, three-month extension of the Patriot Act, Senator Wyden said that Congress should use the time to hold the “debate it has spent ten years avoiding.” To begin the debate, he introduced legislation to modify the Patriot Act’s “business records” provision to require government agents to demonstrate that an individual is in some way connected to terrorism or clandestine intelligence activities before being allowed to review their records.
2/16/2011: Wyden Presses the Director of National Intelligence to Clarify the Administration’s Interpretation of the Patriot Act [VIDEO]
At an open hearing of the Senate Select Committee on Intelligence, Senator Wyden questioned Director of National Intelligence James Clapper on U.S. intelligence agencies’ use of secret legal interpretations and stated “I am increasingly troubled about the intelligence community’s reliance on secret law.”
Wyden stated that he believes there is a problem any time “there is a gap between what the public believes the law is and what the government secretly thinks the law is.” He also said that he believed that the American people and many members of Congress “would be stunned if they knew how the Patriot Act was being interpreted and applied in practice.”
Wyden noted in particular that he had asked to see the secret legal analysis outlining the extent of the President’s authority to knowingly kill Americans in the course of counterterrorism operations, and that this analysis had not been provided. Wyden added that “right now, with respect to the Executive Branch’s official interpretation of what the law means, we’re not getting it.” Director Clapper indicated that this analysis was contained in “the formal written Office of the Legal Counsel opinions of the Department of Justice” and responded that providing these opinions to Congress was “not my call to make.”
3/25/2010: Wyden Submits Statement for Congressional Record Calling Attention to Secret Interpretation of Law
Following passage of a one-year extension of the Patriot Act, Wyden submitted a statement for the Congressional Record in which he recalled his transparency efforts over the previous two years and expressed concern for the discrepancy between the public and legal interpretations of the Patriot Act, a problem later described as “Secret Law.”
“Providing this classified paper to Congress is a good first step, and I would certainly encourage all of my colleagues to come down to the Intelligence Committee and read it, but by itself this step does not go nearly far enough. Ensuring that members of Congress have information about how the law has been interpreted and applied is obviously essential, but it is just as essential for the public to have this information as well. Most members of the public do not expect to have detailed information about how intelligence collection is actually conducted, but they do expect to understand the boundaries of what the law does and does not allow, so that they can ratify or reject the decisions that public officials make on their behalf.
I am particularly concerned about this because I believe that there is a discrepancy between what most Americans believe is legal and what the government is actually doing under the Patriot Act. In my view, any discrepancy of this sort is intolerable and untenable, and can only be fixed by greater transparency and openness. This is why I think it is so important for the executive branch to declassify the information that I have asked them to take action on.”
11/17/2009: Senators Press Holder to Declassify Key Facts about Patriot Act [News Release]
U.S. Senators Ron Wyden (D-Ore.) Russ Feingold (D-Wis.) and Dick Durbin (D-Ill.) sent a letter to U.S. Attorney General Eric Holder asking him to declassify key information pertaining to the law's "business records" provision (Section 215). This letter followed a classified letter that the senators sent Holder in June 2009.
10/8/2009: Patriot Act: Congress Shouldn’t Rush to Judgement (Again) [Huffington Post Op-Ed]
In an op-ed, Senator Wyden argued for declassification of key information pertaining to the Patriot Act’s “business records” provision, deeming it “essential to understanding the full scope of the PATRIOT Act."
9/18/2009: Senators Introduce Patriot Act Fixes to Safeguard Americans' Rights Including Long Standing Problems with the PATRIOT Act and Other Surveillance Laws [News Release]
U.S. Senators Ron Wyden (D-OR), Russ Feingold (D-WI), Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), and Daniel Akaka (D-HI) introduced legislation to fix problems with surveillance laws that threaten the rights and liberties of American citizens. The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act included reforms to the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect Americans' constitutional rights, while preserving the powers of government agencies to fight terrorism.
8/7/2009: ODNI and DOJ Respond Saying that Public Disclosure of Judicial Opinions Enhances Public Confidence
The ODNI and DOJ responded to Senators Wyden and Rockefeller in a letter stating that DOJ and the ODNI agreed “that, as a matter of policy, significant legal opinions of the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR) that include important rulings of law should be accessible to Congress and made available to the general public in a manner that protects intelligence sources and methods, and other properly classified information. Similarly, we agree that there should be a regular process for evaluating these opinions to identify those portions that would be suitable for public release. Finally, we agree that the release of such opinions will enhance public confidence in the independent judicial review and oversight consistently provided by the FISC and FISCR to the Intelligence Community, and provide greater transparency into the Intelligence Community’s use of FISA authorities in ways that are both in accordance with the Constitution and respectful to the civil liberties of U.S. persons.”
10/29/2008: Chairman Rockefeller and Senator Wyden Seek Clarity on Judicial Branch Interpretation of FISA
Then-Chairman Rockefeller and Senator Wyden wrote to the DNI, the Attorney General, and the presiding judges of the FISA courts. They expressed their understanding about why many FISA decisions are classified and must remain so. Their letter then stated: “But we also are aware of a cost of the secrecy that surrounds these decisions: members of the public, and even many policymakers, often do not understand how the Foreign Intelligence Surveillance Act is interpreted by the Judicial Branch, or how the Judicial branch balances constitutional concerns with the Executive branch’s need to collect foreign intelligence information. This lack of knowledge makes it challenging for members of Congress and the public to determine whether the law adequately protects both national security and the privacy rights of law-abiding Americans.” Accordingly, the two senators requested the views of the DNI, the Attorney General, and the presiding judges about “the creation of a process under which important decisions of law in key decisions of these courts could be released in unclassified form.”
Within several days, the presiding judges responded that the issue of the public release of court opinions had been identified as a topic of discussion at a judicial conference of the FISA courts. The judges stated that they would provide a more substantive response after their courts had reviewed and discussed the matter.
7/25/2008: Wyden Seeks Declassification of FISA Court Opinions [News Release]
In an effort to better inform the ongoing congressional debate on intelligence surveillance law, U.S. Senator Wyden sent a letter to the Public Interest Declassification Board (PIDB) asking for a review of key opinions of the Foreign Intelligence Surveillance Court and a determination as to which portions of these opinions should be declassified and publicly released. In his letter to the PIDB Wyden stated, “While this year's surveillance debate may have concluded, another will undoubtedly begin next year as the expiration date for certain controversial provisions of the Patriot Act approaches. Access to the substance of the Court's opinions would greatly help to inform this debate.”
04/27/2008: Wyden Exposes Bush Administration’s Secret Interpretation of Geneva Conventions
Senator Wyden released a series of letters that he exchanged with Justice Department officials between August 2007 and March 2008, which revealed that the although the Bush Administration had publicly announced that it would comply with the Geneva Conventions’ international standards for prisoner treatment, the Justice Department had secretly determined that the definition of key legal terms such as “cruel, inhuman and degrading treatment” could vary based on the identity of a particular prisoner, or the information that he or she was believed to possess. This radical reinterpretation of the Geneva Conventions allowed the government to secretly circumvent longstanding human rights protections and Supreme Court precedents.
In an interview with the New York Times, Senator Wyden raised concerns that by putting the Geneva Conventions on a “sliding scale,” the Bush Administration was opening the door for future enemies of the U.S. to adopt different standards of treatment for American prisoners based on the prisoners’ knowledge or military rank. Wyden told the New York Times “[t]he cumulative effect in my interpretation is to put American troops at risk.”
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