Warrantless wiretapping, retroactive immunity, Operation Total Information Awareness, passport file breaches, a toothless Oversight Operations Board stacked with cronies. Each a head on the monster that is the Bush administration's approach to intelligence, one in which political expediency trumps the Constitution every time. Trying to get a grasp on the magnitude of what we already know about the administration's efforts to break down the wall between foreign and domestic spying and to end all oversight of those activities either by Congress or the Judiciary is an enormous task.
I spoke with Sen. Ron Wyden, member of the Senate Intelligence Committee, last week about what we know so far, where we might be going, and how to to rein in an executive that has gone out of control.
Q: We had so many revelations of overstepping by this administration on intelligence issues over just the past few months, where are we at now in Congress?
Wyden: The way I characterize it is that I think that this administration basically is allowing a culture that says violating the privacy rights of law-abiding people isn’t that big a deal. That’s what it is. Literally, if you look at this administration running through all of these issues—oversight board, Operation Total Information Awareness—all of it; they’ve basically allowed a culture to develop that says trashing people’s privacy rights isn’t that big a deal. And when they’re caught they say, oh my goodness, well we’d better get it corrected, but if they cared more about the rights of law-abiding people, we wouldn’t have one example after another. [With the passport snooping revelations] . . . you can literally look and say once again this administration is asleep on the privacy issue.
Q: Will all these revelations on intelligence give the Senate pause on telecom immunity?
Wyden: We ought to start by saying that the real issue here is why won’t the Bush administration take yes for an answer on FISA? They came to us and said we need to modernize the law. The law hadn’t kept up with the times since the 1970s and people like myself and Senator Feingold and others said ok, that’s a valid point. We’re going to work with you to modernize the law. And then there were all the issues, you know there will be a modest number of people who’d be swept up in the various programs and what would be done to protect them? And it was clear that we had a lot of concerns on that, but they talked about minimization procedures, you know procedures to try to hold down the number of cases and a lot of swallowed hard and said, ok, we’re willing to work with that, too. But when they did two other things, one, went after total retroactive immunity, and two, basically tried to sweep judicial oversight by the boards, that’s when we said that’s too much. Now you won’t take yes for an answer, and we said we’re not going to do it. What the House of Representatives is trying to do is a more judicious approach that’s more sensitive to privacy rights and so it’s fine. Without getting into details, we’re going to give phone companies the chance to make their case but we’re not going to be throwing retroactive immunity out there.
Q Will the House's solution on allowing the cases to go forward fly with the Senate?
Wyden: There are a number of Senators who are going to look at this and I hope that, again, as people look at case after case after case where the administration has not been sensitive to privacy rights that this will strengthen our hand. What the House is trying to show is, all right, we’re going to be sensitive to the concerns of the phone companies, but we’re not going to say that after five years of the administration saying a program is legal, and then there are all these lawsuits filed that we’re going to just take care of it with retroactive immunity. . . . Let’s stick with what Mike McConnell said in open session. . . . Mike McConnell said, before all the politics began, Mike McConnell said that intelligence gathering wouldn’t be jeopardized by the lapse in the law. . . . About every week the president has a news conference and says that western civilization is going to end without retroactive immunity despite the fact that Mike McConnell came to the committee, before the politics started, [and said intelligence gathering wouldn't be jeopardized.] They continue to have others do their work for them. A variety of interest groups and sympathetic people in the media are constantly clobbering the House bill, but what’s interesting is that even those who are critical of the House bill on the right, they can’t say that this is unfair treatment of the phone companies. . . .
Q: You've spent the recess back in Oregon. What have people in town meetings been saying?
Wyden: Americans understand that the founding fathers set up our unique and wonderful system as a kind of Constitutional teeter-totter. On one side you would have collective security, and on the other side you would have individual liberty. The teeter-totter would be right there in balance. . . . As you listen to people, and I just had town meetings all over eastern Oregon where people are asking about privacy issues, too . . . people think that under this administration the Constitutional teeter-totter is imbalanced, it’s out of whack. That kind of balancing act that allowed us to have both collective security and individual liberties because of this administration is threatening both.
Q: You are responsible for killing Operation Total Information Awareness when they tried to get it passed as a full-fledged program. Now we know it different parts have been implemented despite the Congressional ban by the Pentagon anyway. Any word yet on what Congress might do about that?
Wyden: The article came out right before the break, so I can’t tell you. . . . I think both in the Congress and in the country that there’s a real hunger to get back to this issue. I asked about Operation Total Information Awareness in public, about whether, you know, several years afterwards . . . about whether they were trying to bring it back, and they said we're not going to answer you in public session. Then we went into closed session and I asked it again, and I think that the American people have a right to that answer in public and there ought to be a public debate about whether there's an effort to bring this back. I obviously can't answer what was said in classified session, but I think the answer when I posed to them in public, I think there needs to be a debate about that....
All of it, coming as a backdrop to FISA coming back, passports, national security letters . . . . The reality is, this is a tool to get lots of people's personal records and they're increasing. . . . There are a lot of pieces to the puzzle but I come away saying that if anything, as people look at all the technology and they look at how fast society moves, they're asking more and more are my rights going to get trampled in the process. That protecting privacy and having the security and safety of your community are not mutually exclusive. That's what the Bush administration wants to do more than anything else, they want to tell people it's one or the other—you can have your security or you can have your liberty.
Wyden's constituents aren't either more tuned in nor more intelligent than the rest of America. The argument that the public doesn't care about privacy rights or is willing to cede them for more security is easily dispatched once the public is actually asked what they think, something that happens all too rarely. When they are asked, voters soundly reject the argument that they have to trade their liberty for security Most recently, in the only large scale polling [pdf] done on FISA and warrantless wiretapping, The Mellman Group found:
Voters’ views on this issue are quite robust, impervious to even the strongest arguments coming out of the White House. Voters were given the argument against warrantless wiretaps and heard a strong statement from supporters, incorporating language used by the President and Vice President. The message argued that while we are in a war on terror against ruthless enemies who have vowed our destruction, the President’s hands should not be tied with red tape that prevents him from keeping us safe and staying a step ahead of terrorists. Even in the face of these powerful arguments, 62% say the government should have to get a warrant from a court before wiretapping Americans’ international conversations, while just about half as many (32%) support the President’s position. Thus, when presented with arguments on both sides, opposition to warrantless wiretapping increases by a net of 4 points.
So it's time for the public to flex its muscle on this issue. The first step is to demand what Sen. Wyden is calling for--public hearings about what the government is up to in implementing the various components of Operation Total Information Awareness in outright defiance of a Congressional ban. The intelligence committees should immediate convene hearings and demand public answers. That means you, Jello Jay Rockefeller need to do your job. Every Democrat on that committee (Feinstein, Wyden, Bayh, Mikulski, Bill Nelson, Feingold, and Whitehouse) should be demanding hearings as well.
Second, demand that Congress not give one inch on any intelligence issue--particularly retroactive amnesty--to this administration which has time and time again shown not just a callous disregard for the privacy rights of Americans, but an outright hostility to them and to the Constitution in which they are enshrined. If they're Constitutional duty isn't enough to compel them to do the right thing, they might consider this reminder from Julian Sanchez:
Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters.... Political abuse of electronic surveillance goes back at least as far as the Teapot Dome scandal that roiled the Warren G. Harding administration in the early 1920s. When Atty. Gen. Harry Daugherty stood accused of shielding corrupt Cabinet officials, his friend FBI Director William Burns went after Sen. Burton Wheeler, the fiery Montana progressive who helped spearhead the investigation of the scandal. FBI agents tapped Wheeler's phone, read his mail and broke into his office. Wheeler was indicted on trumped-up charges by a Montana grand jury, and though he was ultimately cleared, the FBI became more adept in later years at exploiting private information to blackmail or ruin troublesome public figures. (As New York Gov. Eliot Spitzer can attest, a single wiretap is all it takes to torpedo a political career.)...
In that light, the security-versus-privacy framing of the contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends -- well, it would be a first.
Update: In the interest of full disclosure, I worked for Wyden when he served in the House of Representatives.