In a remarkable speech to the left-wing progressive Center for American Progress on Tuesday, hard-core liberal Oregon Democrat Ron Wyden (Freedom Index Rating of 17) tore into the surveillance state, exposing its capabilities, its secret rules, its secret court and its failed efforts to protect itself from exposure. He also noted the barest beginnings of a congressional effort to reign in the all-seeing-eye of the NSA.
On most matters liberal, Wyden is a dependable “yes” vote, supporting gun control, gay marriage, the initial Patriot Act, Bush’s prescription drug benefit and other predictable pieces of the progressive platform. But when it comes to the surveillance state, Wyden has been a stumbling block to the left and to the White House. He voted for the first iteration of the Patriot Act (he’s been one of Oregon’s senators since 1996) on the condition that it include a sunset clause so that Congress could reconsider the law when the fear engendered by the 9/11 attacks had subsided and cooler heads would presumably prevail. Those cooler heads never showed up and so when the Patriot Act was up for reauthorization in 2011, Wyden took to the floor of the Senate to say:
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.
But because of Senate rules that prohibit members of the Senate from going public with such information (Wyden is a member of the Senate Intelligence Committee), Americans never learned and consequently weren’t stunned or angry:
At the time, Senate rules about classified information barred me from giving any specifics of what I’d seen except to describe it as Secret Law – a secret interpretation of the Patriot Act, issued by a secret court, that authorizes secret surveillance programs – programs that I and colleagues think go far beyond the intent of the statute.
Along came Edward Snowden, the NSA leaker, and everything that Wyden knew but couldn’t tell was out in the open:
As I’ve said before, one way or another the truth always wins out.
Last month, disclosures made by an NSA contractor [Snowden] lit the surveillance world on fire. Several provisions of [that] secret law were no longer secret and the American people were finally able to see some of the things I’ve been raising the alarm about for years.
And when they did, boy were they stunned, and boy are they angry.
He spent time reviewing the secret FISA court that allows the secret surveillance of innocents by the NSA, not based upon probable cause, but upon “relevance.” He noted that the judges’ opinions were secret, that no attorneys opposing the request were invited or even allowed to present any privacy concerns. He reiterated that, for all practical purposes, the secret court was a rubber stamp: whatever the surveillance state wanted, it got. Wyden said:
The result: the creation of an always expanding, omnipresent surveillance state that – hour by hour – chips needlessly away at the liberties and freedoms our Founders established for us, without the benefit of actually making us any safer.
He warned of the two Patriot Acts: the first that one can read on their computer screen. And the other one:
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 court … have interpreted the Patriot Act … in some surprising ways, and these rulings are kept entirely secret from the public. These rulings [are] astoundingly broad.
Wyden thinks Americans ought to know what their government is up to:
It is a fundamental principle of American democracy that laws should not be public only when it is convenient for government officials to make them public. They should be public all the time, open to review by adversarial courts, and subject to change for an accountable legislature guided by an informed public.
Wyden came awfully close to expressing the same sentiment as Thomas Jefferson who said: “Educate and inform the whole mass of the people … They are the only sure reliance for the preservation of our liberty.”
Wyden went on to say:
If Americans are not able to learn how their government is interpreting and executing the law then we have effectively eliminated the most important bulwark of our democracy.
He reviled NSA Director James Clapper for lying to Congress that “we don’t hold data on U.S. citizens” and then repeating the canard at the DefCon conference. He decried Clapper’s stonewalling of requests Wyden and fellow liberal Senator Mark Udall (Colorado) made for clarification. He was a driving force behind a letter signed by more than a quarter of the U.S. Senate demanding answers from Clapper that he failed to address publicly. After two months, he has so far heard nothing.
Wyden and Udall, however, were able to remove from the Intelligence Authorization bill some offensive language that would have limited government officials even further from discussing the secrets behind the Patriot Act and the surveillance state. Said Wyden:
These provisions were intended to stop leaks, but it’s clear to me that they would have significantly encroached upon the First Amendment and [would have] led to a less-informed public debate on foreign policy and national security matters.
Wyden put a hold on the bill until he could generate enough opposition to force the removal of the offensive language. And he thinks he can do more.
But the day after his speech the House voted down an amendment to cut the NSA’s budget and remove some of the agency’s ability to rewrite the Patriot Act is it saw fit.
Unless and until enough citizens wake up to the dangers of losing the republic to unelected bureaucrats operating in secret, the surveillance state will continue to expand in its quest to know everything about everyone.
There are only two limitations to the growth of the surveillance state: practical, and economic. From a practical standpoint, just who is going to sort through the nearly immeasurably large amount of data being collected? At present, as smart as computers are, and as sophisticated as the software that drives them is, it ultimately is going to take a human being to find the dangerous needle in thousands of haystacks. The manpower required to do that is incomprehensibly large and infinitely costly.
The second limitation is economic: at some point deficits will become so large that funding them through debt will no longer be an option. When the NSA’s budget is cut, its problem will have no solution. Congressional action is preferred but there are limits to the surveillance state, even if Wyden and Udall and other civil libertarians in the House and Senate are unable to cut its funding. The bond market will eventually do it for them.
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