May 26, 2011

In Speech, Wyden Says Official Interpretations of Patriot Act Must be Made Public

Wyden Gives Examples of Public Outrage Over Intelligence Scandals; Warns of Potential Backlash From Allowing for Secret Law

Washington, D.C. – Speaking on the floor of the U.S Senate during the truncated debate on the reauthorization of the PATRIOT ACT for another four years, U.S. Senator Ron Wyden (D-Ore.) – a member of the Senate Select Committee on Intelligence -- warned his colleagues that a vote to extend the bill without amendments that would ban any Administration’s ability to keep internal interpretations of the Patriot Act classified will eventually cause public outrage.

Known as Secret Law, the official interpretation of the Patriot Act could dramatically differ from what the public believes the law allows. This could create severe violations of the Constitutional and Civil Rights of American Citizens.

Click here to view the video.

Below are Senator Wyden’s remarks as prepared for delivery:

Statement of Senator Wyden

On Patriot Act Reauthorization

May 26, 2011


M. President, the United States Senate is now preparing to pass another four-year extension of the USA Patriot Act.  I have served on the Intelligence Committee for a decade, and I want to deliver a warning this afternoon:  when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.  And they will be asking senators, “Did you know what this law actually permits?”  “Why didn’t you know before you voted on it?”  The fact is that anyone can read the plain text of the Patriot Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified. 

It’s almost as if there are two Patriot Acts, and many members of Congress haven’t even read the one that matters.  Our constituents, of course, are totally in the dark.  Members of the public have no access to the executive branch’s secret legal interpretations, so they have no idea what their government thinks this law means. 

Let me bring up some historical examples, to give you a clearer example of what I am talking about.  And before I begin I want to be clear that I am not claiming that any of the specific activities that I am about to discuss are still happening today.  I am bringing them up because I think they might help remind my colleagues how the American people tend to react when they learn about domestic surveillance activities that are inconsistent with what they think the law should allow.  When Americans learn about intelligence activities that are consistent with their understanding of the law they buy more newspapers and read about these activities with interest and often admiration.  But when people learn about intelligence activities that are outside the lines of what is generally believed to be permitted, public reaction tends to be quite negative. 

Here’s my first example:  The CIA was established by the National Security Act of 1947, which stated that the agency was “forbidden to have…law enforcement powers or internal security functions.”  Members of Congress and legal experts interpreted that language as a “clear prohibition against any internal security function under any circumstances.”

A small group of CIA officials, however, had a different interpretation.  They decided that the 1947 statute contained legal “gray areas” that allowed the CIA to monitor American citizens for possible contact with foreign agents.  They believed this meant that they could secretly tap Americans’ phones, open their mail and plant listening devices in their homes, among other things.  This secret legal interpretation led the CIA to maintain intelligence files on more than 10,000 American citizens including reporters, members of Congress and anti-war activists like Jane Fonda. 

This small group of CIA officials kept the program – and their “gray area” justification of the program – a secret from the American people and most of the U.S. government because – they argued – revealing it would violate the agency’s responsibility to protect “intelligence sources and methods from unauthorized disclosure.”

Did the program stay a secret?

No, on December 22, 1974, investigative reporter Seymour Hersh detailed the program on the front page of the New York Times.  The revelations – and the public uproar they inspired – led to the formation of the Church Committee, which spent nearly two years investigating questionable and illegal activity at the CIA.  The Church Committee published fourteen reports detailing various intelligence abuses, which – in addition to illegal domestic surveillance – included programs designed to assassinate foreign leaders.  The investigation led to executive orders reining in CIA authority and the creation of the House and Senate Intelligence Committees.

In 1947, President Harry Truman and his top military and legal advisors secretly approved a program named “PROJECT SHAMROCK.”  PROJECT SHAMROCK authorized “the Armed Forces Security Agency” and its successor – the NSA – to monitor telegraphs coming in and out of the United States.  At the outset of the program, companies were told that government agents would only read “those telegrams related to foreign intelligence targets” but as the program grew, more telegrams sent and received by Americans were read.  During the program’s 30-year run, NSA analysts sometimes reviewed as many as 150,000 telegrams a month. 

While the Ford Administration said that it made all pertinent information about PROJECT SHAMROCK available to the Senate Intelligence Committee and the Justice Department, it kept the program secret from the public, arguing that public disclosure was both “unjustified and dangerous to national security,” and it avoided Congress’s questions regarding the legality of the program by stating that telegrams “present somewhat different legal questions from those posed by domestic bugging and wiretapping.” 

The program didn’t stay a secret. 

The newly-formed Senate Intelligence Committee ultimately disclosed the PROJECT SHAMROCK program on November 6, 1975, arguing that public disclosure was needed to build support for a law governing NSA operations. 

The resulting public uproar led to a Congressional Investigation, the NSA’s termination of PROJECT SHAMROCK and the passage of the Foreign Intelligence Surveillance Act of 1978, which attempted to subject domestic surveillance to a process of warrants and judicial review.

Years later, during the Reagan administration, senior members of the National Security Council secretly sold arms to Iran and used the funds to arm and train Contra militants to topple the Nicaraguan government.  Selling arms to Iran violated the official U.S. arms embargo against Iran, and directly funding the Contras was illegal under the Boland Amendment - which Congress passed to limit U.S. government assistance to the Contras. 

But the NSC officials were convinced that they knew better.  They were convinced that violating the embargo and illegally supporting the Contra rebels would help free American hostages and help fight communism in Nicaragua.  Instead of engaging in a public debate and trying to convince Congress and the American people that they were right, they secretly launched an arms program and hid it from Congress and the American people.

How did that work out for them?

The New York Times published the story of these activities on November 25, 1986.  A Joint Congressional Committee was launched to investigate the Iran-Contra Affair, which televised hearings for more than a month.  The House Foreign Affairs Committee and the House and Senate Intelligence Committees held their own hearings.  The first Presidential commission investigating the National Security Council was launched, multiple reports were published documenting the administration’s illegal activities, and the Nicaraguan government sued the United States.   Dozens of court cases were filed and National Security Council officials – including two National Security Advisors – faced multiple indictments.

Finally, following the terrorist attacks of September 11, 2001, a handful of government officials made the unilateral judgment that following US surveillance law as it was commonly understood would slow down the government's ability to track suspected terrorists.

Instead of working with Congress to revise or update the law, these officials secretly reinterpreted the law to justify a warrantless wiretapping program that they hid from nearly every member of Congress and the American people.  It is unclear how long they thought they could hide a large, controversial national security program of this nature, but they kept it so secret that even when it yielded useful intelligence, classification restrictions sometimes prevented this information from being shared with officials who could have used it.  I was a member of the Senate Intelligence Committee at this point, but the program and the legal interpretations that supported it were kept secret from me and nearly all of my colleagues. 

Did the program stay secret?

No.  After several years, New York Times reporters James Risen and Eric Lichtblau published a story uncovering the program.  The resulting public uproar led to a divisive congressional debate and a large number of lawsuits.  This disclosure also led to an erosion of public trust that made many private companies more reluctant to cooperate with government requests. 

As most of my colleagues will remember, Congress and the executive branch had to spend years attempting to sort out the details of that particular program and the secret legal interpretations used to justify it.  In the process of doing so, Congress also attempted to address some actual surveillance policy issues, and I think all of my colleagues who were here for that debate would agree that those issues could have been resolved far more easily, and far less contentiously, if the Bush Administration had just come to Congress in the first place and tried to address them, rather than attempting to effectively rewrite the law in secret. 

When laws are secretly reinterpreted in this way, the results frequently fail to stand up to public scrutiny.  This isn’t really that surprising, if you think about it.  The American law-making process is often cumbersome, it is often frustrating, and it is often contentious.  But over the long run this process is actually a pretty good way to ensure that our laws have the support of most Americans, since those that don’t will usually get revised or repealed by elected lawmakers who follow the will of their constituents.  On the other hand, when laws are secretly reinterpreted behind closed doors by a small number of government officials, without any public scrutiny or debate, you are far more likely to end up with interpretations of the law that go well beyond the boundaries of what the public would accept or support.

Let me make clear that I think it is entirely legitimate for government agencies to keep certain information secret.  In a democratic society, of course, citizens rightly expect that their government will not arbitrarily keep information from them, and throughout our nation’s history Americans have vigilantly guarded their right to know.  But Americans do acknowledge certain limited exceptions to this principle of openness.  For example, most Americans acknowledge that tax collectors need to have access to individuals’ financial information, but they do not believe that their government has the need or the right to share this information openly.  We could call this an exception to protect personal privacy. 

Another limited exception exists for the protection of national security.  The US government has an inherent responsibility to protect its citizens from threats, and it can do this most effectively if it is sometimes allowed to operate in secrecy.  I don’t expect General Petraeus to publicly discuss the details of every troop movement in Afghanistan any more than early Americans expected George Washington to publish his strategy for the Battle of Yorktown.  By the same token, American citizens recognize that their government may sometimes rely on secret intelligence collection methods in order to ensure national security and public safety, and they recognize that these methods can often be more effective when their specifics remain secret. 

But while Americans recognize that government agencies will sometimes rely on secret sources and methods to collect intelligence information, Americans also expect that these agencies will operate at all times within the boundaries of publicly understood law.

I have served on the Senate Intelligence Committee for ten years, and I don’t take a backseat to anybody when it comes to the importance of protecting genuinely sensitive sources and collection methods.  But the law itself should never be secret – voters have a need and a right to know what the law says, and what their government thinks the text of the law means, so that they can decide whether the law is appropriately written and ratify or reject decisions that their elected officials make on their behalf. 

When it comes to most government functions, the public can directly observe the government’s actions and average citizens can decide for themselves whether they support or agree with the things that their government is doing.  American citizens can visit national forests and decide for themselves whether those forests are being appropriately managed.  When they drive on the interstate, they can decide for themselves whether those highways have been properly laid out and adequately maintained.  If they see someone punished, they can decide for themselves whether the sentence was too harsh or too lenient.  But they generally cannot decide for themselves whether intelligence agencies are operating within the law or not. 

That’s why as the US intelligence community evolved over the past several decades, Congress set up a number of watchdogs and oversight mechanisms, to ensure that intelligence agencies follow the law rather than violate it.  This is why the Senate and the House each created a Select Intelligence Committee.  It’s also why Congress created the Foreign Intelligence Surveillance Court.  And it’s why Congress created a number of statutory Inspectors General, to act as independent watchdogs inside the intelligence agencies themselves.  All of these oversight entities (one of which I am proud to serve on) were created at least in part to ensure that intelligence agencies carry out all of their activities within the boundaries of publicly understood law. 

But the law itself must always be public.  Government officials must not be allowed to fall into the trap of secretly reinterpreting the law in a way that creates a gap between what the public thinks the law says and what the government secretly claims that it says.  Any time that they do so they are violating the public’s trust.  Furthermore, allowing a gap of this nature to develop is extremely short-sighted.  Both history and logic should make it clear that secret interpretations of the law will not stay secret forever.  And as the historical examples that I cited earlier show, when the public eventually finds out that government agencies have been rewriting surveillance laws in secret, the result is invariably a backlash and an erosion of public confidence in these government agencies. 

Let me be clear:  I think that is a big problem.  Our intelligence and national security agencies are staffed by many talented and hard-working men and women, and the work that they do is extremely important.  When members of the public lose confidence in these agencies, it doesn’t just undercut morale – it makes it harder for those agencies to do their jobs.  If you ask the head of any intelligence agency, particularly an agency that is involved in domestic surveillance in any way, he or she will tell you that public trust is a vital commodity, and voluntary cooperation from law-abiding Americans is critical to intelligence agencies’ effectiveness.  If members of the public lose confidence in these government agencies because they think that government officials are rewriting surveillance laws in secret, it will make those agencies less effective.  I don’t want to see that happen. 

I want to emphasize that the hard-working lawyers at these government agencies almost never have malicious intent.  They work very hard to protect intelligence sources and methods, for very good reasons, and sometimes they lose sight of the difference between those sources and methods, which can and should be kept secret, and the law itself, which should not.  Sometimes they even go so far as to argue that keeping their interpretation of the law secret is actually necessary, because it prevents our nation’s adversaries from figuring out what our intelligence agencies are allowed to do.  I can see how it might be tempting to latch on to this Alice-in-Wonderland logic, but if the US government were to actually adopt it, then all of our surveillance laws would be secret, because that would obviously be even more useful.  When Congress passed the Foreign Intelligence Surveillance Act in 1978 it would have been useful to keep that law secret from the KGB, so that Soviet agents wouldn’t know whether the FBI was allowed to track them.  But American laws shouldn’t be public only when government officials think it’s convenient.  They should be public all the time, and every American citizen should be able to find out what their government thinks those laws mean. 

Earlier this week I filed an amendment, along with my colleague from the Intelligence Committee, Senator Mark Udall, that would require the Attorney General to publicly disclose the United States Government’s official interpretation of the USA Patriot Act.  Our amendment specifically states that the Attorney General should not describe any particular intelligence collection programs or activities, but that he should “fully describe the legal interpretation and analysis necessary to understand the United States Government’s official interpretation” of the law.  This morning we reached an agreement with the Chair of the Intelligence Committee, Senator Feinstein, who has committed to hold a hearing on this issue next month.  Senator Udall and I will work to address this secret law problem in the committee hearing and subsequent deliberations, and if we don’t get results there then we will return to the floor and offer this amendment again on different legislation. 

But while we intend to keep fighting for openness and honesty, as of today the government’s official interpretation of the law is still secret, and the final vote on reauthorizing the Patriot Act is fast approaching.  I plan to vote no, because I do not support enacting a long-term reauthorization without significant reforms.  And I believe that when more of my colleagues and the American public come to understand how the Patriot Act has actually been interpreted in secret, they will insist on significant reforms too.