Reining in the NSA

Wyden sees growing support for oversight reforms

By Andrew Clevenger / The Bulletin / @andclev

Published Nov 10, 2013 at 04:00AM

WASHINGTON — Almost six months after Edward Snowden became a household name by leaking classified documents about secret electronic spying programs, Sen. Ron Wyden, D-Ore., sees growing support for reforming how the intelligence community operates.

“In the last few weeks, you’ve seen come together the kind of coalition that has been successful in past battles over major issues where technology was involved,” he told The Bulletin recently.

Three important groups — lawmakers, members of the tech industry and voters — are beginning to embrace the idea that the National Security Agency needs to be reined in.

Last week, Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, signed on as a co-sponsor to the Intelligence Oversight and Surveillance Reform Act, legislation introduced by Wyden and others that would stop the bulk collection of metadata, or records on where and to whom calls were placed and for how long.

Wyden’s bill would also make significant changes to the operation of the Foreign Intelligence Surveillance Court, which operates out of public view, and close loopholes that allow intelligence officials to conduct “backdoor searches” of American individual communications without first obtaining a warrant.

Wyden added his name to the USA Freedom Act, Leahy’s intelligence reform bill that would also end the bulk collection of phone records and require greater oversight, transparency and accountability for domestic surveillance and spying. Leahy’s bill already has more than 100 co-sponsors in both chambers of Congress and has drawn support from such companies and organizations as AOL, Apple, Google, Facebook, Microsoft, Yahoo, the American Civil Liberties Union and the National Rifle Association.

“What I’m pleased about is on issue after issue, we’re building bipartisan interest,” said Wyden.

Recent weeks have also brought the revelation that the NSA was accessing cloud data from Google and Yahoo without their permission, and without the companies even being aware their networks were being accessed. In response, two members of Google’s security team posted public, expletive-laden comments directed at the NSA.

“(Expletive) these guys,” wrote Google security engineer Brandon Downey. “(E)ven though we suspected this was happening, it still makes me terribly sad. It makes me sad because I believe in America.”

To Wyden, the tech community’s engagement in the intelligence reform discussion is extraordinary.

“These are companies that have a long history of really being under the radar with respect to Washington, D.C., politics,” he said. “But they’re basically signaling now that their brand is being damaged. ... They’re going to lose billions of dollars with the status quo.”

Voters have also grown leery of the government’s claims regarding checks and safety measures in place to prevent abuses, he said.

“Increasingly, Americans are starting to look at these statements and say, ‘This just doesn’t add up,’” he said.

Examples of misleading statements include Director of National Intelligence James Clapper’s now famous denial — in response to a carefully worded question from Wyden at a March hearing — that the NSA collects data on millions, or hundreds of millions, of Americans. After documents leaked by Snowden contradicted this claim, Clapper later said that it was the “least untruthful” answer he could have given at the time.

In September, Gen. Keith Alexander, director of the NSA, suggested in testimony before the Senate Select Committee on Intelligence, of which Wyden is a member, that Americans’ phone records data be placed in a “lock box.”

A quick YouTube search turns up an earlier video of Alexander denying that the agency even collects such records, Wyden said.

“For years, there’s been a culture of misinformation that the intelligence leadership — not the rank and file, but the intelligence leadership — has said one thing in public and done another in private. That’s confirmed practically every week when some new set of revelation comes up that proves that something the government has said isn’t really so,” Wyden said. “That has been a factor in Americans saying, ‘Well, in the future, this “trust us” argument doesn’t carry much weight.’”

In a poll conducted last month by The Huffington Post/YouGov, 54 percent of Americans said they felt the oversight provided by Congress and federal courts of the NSA’s collection of Americans’ phone and Internet data was inadequate. Almost half of respondents, 48 percent, said the same of the oversight of the NSA’s collection programs that target foreigners.

A June poll by the same organizations found that 36 percent of respondents indicated they had heard a lot about the NSA acquiring Americans’ phone records from Verizon, with 40 percent saying they heard a little and 24 percent saying they hadn’t heard anything about the issue.

Morris Davis, a retired U.S. Air Force colonel who was chief prosecutor at Guantanamo terrorism trials for two years and now teaches law at Howard University, said his students debate whether Snowden is a hero or traitor for divulging classified information to journalists.

The public debate on privacy versus national security wouldn’t have happened without all this information coming to light, he said.

“To me, it’s unfortunate that it takes a Bradley (now Chelsea) Manning (a U.S. Army private sentenced to 35 years in prison for disclosing classified information to WikiLeaks) or an Edward Snowden” to increase public awareness of the NSA’s activities, he said.

In response, the Obama administration has cracked down on leaks, he said.

“After pledging to be the most transparent administration in the history of America, they have really dropped the hammer on anyone who has the audacity to let the public know what they’re doing,” Davis said.

With an average age of 25, Davis’ students have largely come of age post 9/11. This has fostered a broad acceptance of government claims that greater monitoring of calls and emails is needed to prevent another attack, part of a sea change in attitudes toward government activities, including torture, surveillance and drone strikes, he said.

“Moving the pendulum back to a more reasonable center is going to take some time,” he said.

For that to happen, Congress has to take a more active role in overseeing the intelligence community, he said.

“Congress largely abdicated their duty, and they’re just now beginning, at least some, to reassert their role in providing a check and balance,” he said.

For Wyden, that starts with instituting reforms requiring intelligence officials to be more forthcoming with Congress.

“The president has stated, correctly in my view, that all of this only works if it’s possible for the Congress to do vigorous oversight,” Wyden said. “The Congress can’t do vigorous oversight if the intelligence leadership is not straight with the Congress and the American people. And in too many instances, they have not been.”

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