AJ Vicens is the Interactives/Data Fellow fellow at Mother Jones. His past work includes time in newspapers, magazines, radio, and television, and his stories have appeared in the Washington Post, ESPN.com, and 5280 Magazine.
On Friday afternoon, President Obama held a press conference where he promised to bring increased transparency to the NSA's digital surveillance programs. He announced a series of proposed reforms to the way the NSA collects data and to how the secret Foreign Intelligence Surveillance Court (FISC) operates, along with plans to convene a group of "outside experts to review our entire intelligence and communications technologies."
US Sen. Ron Wyden, D-Ore., has been one of the biggest thorns in the administration's side when it comes to raising questions about how mass surveillance programs threaten civil liberties. After the president's remarks, he said that he was encouraged by Obama's suggestions, several of which the Senator and others have been pushing to get for years.
The press conference came on the heels of the Guardian's latest scoop based on documents it obtained from former NSA contractor Edward Snowden. Contrary to President Obama's oft-repeated claim that Americans' data is protected from warrantless bulk collection and analysis, the paper reported on Friday morning that the NSA can access US citizens' email and phone calls without a warrant using a "secret backdoor into its vast databases."
While Wyden said he appreciated Obama announcing his support for reforming the section of the Patriot Act that the government has secretly interpreted to justify gobbling up millions of Americans' records, and praised his plan to make proceedings at the foreign intelligence court more adversarial, the senator pointed out areas where he thought the president didn't go far enough.
"Notably absent from President Obama's speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans' phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act," Wyden said, referring to the program most recently disclosed by the Guardian. "I am also concerned that the executive branch has not fully acknowledged the extent to which violations of the FISC orders and the spirit of the law have already had a significant impact on Americans' privacy."
From his seat on the Senate Select Committee on Intelligence, the senior Democratic senator from Oregon has had an inside—yet classified—view of what America's intelligence agencies are up to. He's been pushing them for increased transparency, particularly on what information they are and aren't collecting on law-abiding American citizens. During the debate over reauthorizing the Patriot Act in 2011, he warned, "When the American people find out how government has secretly interpreted the Patriot Act, they are going to be stunned and they are going to be angry." (Wyden voted for the Patriot Act in 2001, but voted against its reauthorization in 2006.)
Though he's been unable to disclose the specifics of the programs he's criticizing, he says he's still able to perform what he calls "vigorous oversight." He made waves when he directly questioned Director of National Intelligence Gen. James Clapper about whether the government collects data on millions of Americans. Clapper denied that it did, only to be forced to later admit that he'd answered Wyden's question in "the most truthful, or least untruthful, manner" he possibly could. He has forced the government to reveal that it has violated federal surveillance laws and engaged in unconstitutional spying and has said that the extent of those violations "are significantly more troubling than the government has stated."
Wyden spoke to Mother Jones about his efforts to roll back the "always-expanding, omnipresent surveillance state," why he's hopeful for reform, and his thoughts about the Snowden leaks.
Mother Jones: Can you talk about what that's been like for you to be one of the more prominent congressional critics of the lack of transparency and honesty from the National Security Agency and other American intelligence operations?
Sen. Ron Wyden: Well, it's certainly been a challenge. Originally on the intelligence committee there were three of us that were strong advocates for privacy: Sen. [Russ] Feingold, Sen. [Richard] Durbin, and myself. And Sen. Feingold and Sen. Durbin left the committee and then I was kind of off on my own for a while. Now Sen. Mark Udall's on the committee and doing a great job. Sen. [Martin] Heinrich has been very supportive and I think you saw particularly in the fight to secure documents with respect to the legal analysis for drones, we're starting to get some new traction.
MJ: What is the Obama administration saying to you about your pushback on the NSA's programs, if anything, behind closed doors?
RW: I think there's been dramatic, dramatic progress made in the last eight weeks. If you had asked me eight weeks ago, "Would you have 26 United States senators—a quarter of the Senate—weighing in on these key issues with respect to civil liberties and to privacy? Would you have had the vote in the House, let alone gotten more than 200 votes?", I would have said no way. And it's my own kind of gut feeling now—and I've talked to the president about these issues several times over the last few months and I'm not basing this on any conversation with the president, I don't get into what the president says to me—but I have have this gut feeling that the administration is beginning to rethink, particularly this program that I consider so, so violative of the privacy rights in particular, the bulk phone records collection. I believe they're beginning to rethink this.
A cadre of conservative activists, journalists, and aides has been meeting privately to coordinate messaging in a fight against progressives and the GOP establishment, according to documents obtained by Mother Jones. Groundswell's participants include DC power players like Virginia "Ginni" Thomas, wife of US Supreme Court Justice Clarence Thomas, and John Bolton, former US Ambassador to the United Nations, along with journalists from Breitbart News, the Washington Examiner, and the National Review. Meet some of them below.
"When the government has access to your communications records for a period of up to five years, it creates a chilling effect on your willingness to participate in political discourse and join political groups," Cindy Cohn, legal director for the Electronic Frontier Foundation, said in a press call on Tuesday. EFF also sued the NSA in 2008 over the Bush Administration's warrantless wiretapping program—a case that has yet to be resolved.
The plaintiffs allege that through the NSA's tracking program, "defendants...continue to collect, acquire, and retain, bulk communications information of telephone calls made and received by plaintiffs, their members and staffs. This information is otherwise private." They also claim that the collection of this information was "neither relevant to an existing authorized criminal investigation, nor to an existing authorized investigation to protect against international terrorism." The charges are being brought as violations to the First, Fourth and Fifth Amendments, among other laws.
The Director of National Intelligence, Keith Alexander—who is also listed on the suit—testified last month that the NSA's surveillance program has helped stopped more than 50 terror plots since 9/11. The NSA maintains that the only information that has been collected through phone surveillance is basic information called metadata, which includes information like which numbers made and received a call, when it took place, and how long it lasted.
At the call on Tuesday, representatives for the groups said that even though the coalition comes from across the political spectrum, they have one big thing in common: They feel their First Amendment rights are being squashed. Reverend Rick Hoyt from the First Unitarian Church of Los Angeles noted that the church played an important role in fighting hysteria during the McCarthy years, and he sees this as more of the same: "We're very aware how organizations can be affected by government surveillance...we want to make sure our current church members feel they have the right to associate with this church." Gene Hoffman, chairman of The Calguns Foundation, which fights gun control laws, said his members are "definitely" hesitant about calling his organization because of surveillance concerns. "It's common to have caller-ID block for our members even before this [came out.]"
Shahid Buttar, the executive director of the Bill of Rights Defense Committee, a civil rights organization that fights to end racial profiling, notes, "A lot of our members have had concerns about these kinds of activities happening for a long time, they've been dismissed for years by the broader public as paranoia... The people who suspected they were being watched, until now, couldn't prove it."
In the wake of revelations from intelligence contractor turned whistleblower Edward Snowden that the National Security Agency has collected massive amounts of phone and internet data on millions of Americans, the NSA posted a fact sheet online about what it was and wasn't doing. Titled "Section 702," the fact sheet outlined "Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons" under the Foreign Intelligence Surveillance Act. It was meant to assuage fears that the NSA was breaking the law with its far-reaching PRISM operation.
But on Monday, two US senators called out the NSA for the contents of the fact sheet, saying that the agency was misleading the public about what it was really doing with the program. Then, on Tuesday, the fact sheet mysteriously disappeared from the NSA's website. (Instead, you can see it here.)
"We were disappointed to see that this fact sheet contains an inaccurate statement about how the section 702 authority has been interpreted by the U.S. government," Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) wrote in an open letter to NSA's director, General Keith Alexander. "In our judgment this inaccuracy is significant, as it portrays protections for Americans' privacy as being significantly stronger than they actually are."
They didn't get specific, instead identifying the inaccuracy in a classified attachment to the letter. And they underscored that the NSA is facing a credibility problem. "As you have seen, when the NSA makes inaccurate statements about government surveillance and fails to correct the public record, it can decrease public confidence in the NSA's openness and its commitment to protecting Americans' constitutional rights," they wrote.
The letter also says the NSA is "somewhat misleading" people when it says that any "inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime."
As of Tuesday afternoon, the URL for the NSA's posted fact sheet led to this:
The NSA didn't reply to questions from Mother Jones about when and why the document was taken off the site, or about the issues brought up by Wyden and Udall. Instead, it emailed this cryptic statement in response:
"Given the intense interest from the media, the public, and Congress, we believe the precision of the source document (the statute) is the best possible representation of applicable authorities," said NSA spokeswoman Judith Emmel.
UPDATE: The NSA responded to Wyden and Udall Tuesday, saying that "the fact sheet ... could have more precisely described the requirements for collection under Section 702 of the FISA Amendments Act" and pointing out several limitations to the law, all beginning with the phrase "may not intentionally" (full letter below). Considering that Wyden and Udall's basis for saying the NSA had made inaccurate statements in the original fact-sheet is classified, it's hard to know what the NSA is responding to in the June 25 letter.
Trevor Timm, a digital rights analyst with the Electronic Frontier Foundation, said the senators' letter points to the fundamental problem with excessive secrecy.
"This is a perfect example of why this secrecy is so bad for the country, that the NSA or [director of national intelligence] or executive branch can issue misleading statements or outright falsehoods and it's impossible for the American people to fact-check them," Timm said. "If it wasn't for Ron Wyden or Mark Udall, the NSA possibly could have kept this up forever."