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Tuesday, December 18, 2018

In recent months, Senator Ron Wyden has emerged again as one of the most trenchant and persistent critics of the surveillance activities of the National Security Agency and the secrecy policies of the Obama administration. He voted for the original PATRIOT Act but now, along with Senator Mark Udall (D-CO), is seeking to amend it. On Wednesday, editor-in-chief Joe Conason spoke with the Oregon Democrat about secrecy, intelligence, the Snowden case, and how to curb abuses without compromising national security.

Joe Conason: I’d like to begin by asking where would you as a responsible legislator — and somebody who has a broad overview of this problem — draw the constitutional line on surveillance of American citizens?

Senator Ron Wyden: This is a hugely important question…So much of what passes for so-called debate is, “So Ron, where would you draw the line between protecting security and protecting privacy?” And I feel very strongly that to frame the discussion that way is to have a discussion about false choices where, in effect, Americans are asked, “So, do you want to either be safe, or do you want to be free?” The truth is, responsible public policy makes it possible to protect both. What you’ve got to do is make it a priority, and I don’t think our government has done a particularly good job of doing that over the past decade. Fortunately what has happened, particularly in the last eight weeks or so, is the landscape has started to shift significantly. I see that on the basis of such developments as the latest Quinnipiac poll, which shows a dramatic shift in terms of people’s concern about their liberties being encroached upon. I hear it at town hall meetings. I hear it at senior citizen centers, and I can tell you, Joe, eight weeks ago people didn’t come up to me at the barbershop and ask me about the FISA [Foreign Intelligence Surveillance Act] law.

Conason: When George W. Bush was president, I wrote a book saying basically what you’re saying now, that we shouldn’t have to make that false choice — that choice is being imposed on us by Bush and [Vice President Dick] Cheney. Now we have President Obama, a constitutional scholar whom everybody believed saw things more that way, yet nothing has changed, and it seems that the government is still imposing that choice on us. So how do we achieve security without compromising civil liberties?

Wyden: Let’s take an example. Instead of these false choices and some of the policies they produce — like this idea of bulk collection of the phone records of millions of law-abiding Americans — I think there ought to be PATRIOT Act reforms along the lines of what Senator [Mark] Udall [D-CO] and I have proposed…If you have reasonable suspicion that someone is a terrorist, you can get their phone records and the phone records of those associated with them, so there’s a connection to terror. And if you have reasonable suspicion to believe that such an individual is connected to terror, you can go to the FISA court and get the ability to obtain their records. That’s an example of the way in which you ensure both liberty and security, and you address the question that you’re talking about as opposed to the status quo which, I think, is really infringing on the rights of every man and woman in the country.

Conason: Do you agree, though, that the government needs to maintain some secrets, some classified information?  I know everybody agrees classification is overly broad, sometimes ridiculous now, but the government has to keep some things secret. No?

Wyden: Your question is also right at the heart of the debate. The key distinction here is to understand there is a difference between secret operations and secret law. Secret operations, which are essentially involving the sources and methods that are used by those in the intelligence community that are on the front lines trying to keep our people safe — it’s critically important that they not be divulged, that people understand that that’s off limits. Because those secret operations rely, in fact, on making sure that those who do not wish us well aren’t aware of those operations. But secret operations and secret law are very different things, and what has been at the heart of what Senator Udall and I have been saying. Secret law is wrong. Our laws are supposed to be public.

But the reality is, as I tell Oregonians all the time, today in America there are essentially two PATRIOT Acts. There’s the one that you can read on your laptop — the public one — and then there is another secret interpretation of the law, and the secret interpretation is remarkably different from the public interpretation, and suffice it to say when people until recently read the statute, the PATRIOT Act statute, and particularly section 215, there was nothing in there that resembled the ability of the government to go out and collect millions and millions of phone records on law-abiding persons. That’s because there is a gap between essentially what the public thinks the law is and what the secret law is.

So on the question of secrecy, you bet. To ensure that the courageous men and women who work in the intelligence field can take steps to protect our country at a dangerous time, their operations need to be kept secret, but there is a very significant difference between secret operations and secret law.

And let me give you an example. The FISA law, the original law really came out of the ’70s, the height of the Cold War, and so obviously we’re trying to deal with the Soviets’ tremendous drumbeat of concern about it, and I guess somebody could have said at that time, “Well, let’s just keep the FISA law secret back when we’re writing this thing, because that way the Soviets wouldn’t have any idea what we were up to in terms of, again, the law with respect to surveillance.” But there at the height of the Cold War, nobody seems to have thought for a second about the idea of keeping the entire law secret, because that’s not the way we do it in our country.

Conason: So if the government needs to maintain some secrets, including not just operations but also some diplomatic communications and so forth, what should happen to somebody like Edward Snowden or Bradley Manning, who are government employees or contractors who revealed this kind of information? Should they be prosecuted?

Wyden: Well, let me talk to you about Mr. Snowden first, and then I want to get into the question of the contractors, because they’re two separate kinds of issues. I have a very strong policy that when somebody has been charged criminally — and Mr. Snowden has been charged with espionage, of course — I don’t comment on that, because that is a criminal investigation. From a policy standpoint, it is in my view representative of the problem that this debate was started by Mr. Snowden as opposed to the Congress and the elected officials of this country.

As you know, there has been an explosion in the growth of the contractors. It’s hard to even get the numbers of how many contractors there are, and the reliance of the intelligence community on contractors is an area that clearly needs to be investigated and examined carefully. I reached the judgment that there are certainly jobs where you can argue it’s appropriate to use a contractor, but I don’t think contractors should ever, ever be performing inherently governmental functions. For example, I was an early opponent of the CIA’s use of contractors to conduct interrogations of prisoners, and my view is when the Intelligence Committee’s interrogation report eventually gets declassified, I think Americans are going to see that it was a mistake to use contractors for those interrogations.

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