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by Andrew Kreig
Democratic senator Ron Wyden spoke at the libertarian Cato Institute July 25 to seek support for his intrepid effort to revive the nation's Fourth Amendment constitutional protections against dubious federal searches.
Wyden said he was thrilled to be able to speak to "privacy hawks" at the Cato Institute, which he described as having a rare track record of opposing unnecessary federal efforts over the past 11 years to monitor domestic phone calls and emails without a warrant establishing probable cause. The Oregon senator said he has placed a "hold" on the Senate's reauthorization of the Foreign Intelligence Surveillance Act (FISA) court system until he is able to learn more about how the Executive Branch is using its powers post-9/11.
In two related developments elsewhere on July 25, the Washington Post reported: Senate committee approves provision to plug intelligence leaks and Skype makes chats and user data more available to police.
At the Cato forum, the keynoter Wyden described how Executive Branch officials resist providing meaningful estimates of whether vast numbers of Americans, or only a few, are being monitored without warrants. Wyden is a member of the Senate Intelligence Committee. The forum featured three other privacy/civil rights experts. Wyden drew praise from them and from most speakers in the audience for seeking to revive privacy rights that most of his peers are willing to let disappear, along with their constitutional basis, for fear of seeming soft on "terror."
As readers here have seen, at least some Democrats in the Senate and House were willing to criticize crackdowns on civil rights during the Bush administration. But nearly all Democratic leaders are silent about the potential for abuse now that the Obama administration is in charge. Like the Bush administration, Obama officials keep secret their electronic surveillance, storage and retrieval of phone calls and emails of the public, justified as protection against terrorism.
A similar disregard of long-standing civil rights has occurred on related issues. One is the unprecedented federal prosecution as spies of government whistleblowers who talk to the news media. The Obama administration has undertaken six such prosecutions, including its disgraceful effort to imprison former National Security Agency (NSA) executive Thomas Drake. At the forum, Drake urged Wyden to keep up his efforts. Drake, former head of NSA's most relevant program and winner of a national Ridenhauer Award in 2011, said during Q&A that the agency never needed to move "to the dark side" of civil rights to protect the nation against terrorists. Drake had been a leader in such programs.
Julian Sanchez, a research fellow at Cato and prominent journalist on libertarian themes, moderated the panel. It included Pulitzer-winning New York Times reporter Eric Lichtblau and American Civil Liberties Union (ACLU) Legislative Counsel Michelle Richardson. Cato posted a video of the session here, and introduced it this way:
History teaches that government spying is naturally subject to abuse without strong oversight, yet only the tiniest fraction of electronic surveillance of Americans—the tip of a vast and rapidly growing iceberg—is meaningfully visible to Congress, let alone the general public.
Under the controversial FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008, set to expire at the end of the year, the National Security Agency is empowered to vacuum up the international communications of Americans under sweeping authorizations that dispense with the need for individual warrants. Despite reports of large-scale overcollection of Americans' e-mails and phone calls, including purely domestic traffic, the NSA has brazenly refused to give Congress any estimate of how many citizens' private conversations are being captured in its vast databases, and legislators have shown little willingness to demand greater transparency as they prepare to reauthorize the law. Increasingly, even ordinary criminal investigations employ off-the-books electronic surveillance techniques that circumvent federal reporting requirements.
The public is informed about the few thousand wiretaps authorized every year but remains largely in the dark about newer and far more prevalent techniques, such as the routine use of cell phones as sophisticated tracking devices.
Six years ago, Lichtblau and his Times co-author James Risen exposed massive illegal NSA surveillance of what one source estimated as NSA's monitoring of billions of American phone calls and emails. That source, now-retired AT&T technician Mark Klein, told me two years ago that no member of the Senate or House has ever dared invite him to a hearing to discuss what he discovered while working for AT&T. In frustration, Klein authored a book about it, Wiring Up the Big Brother Machine...and Fighting It.
Others with expertise such as Drake have never been invited to testify either by any oversight committee. Those committees tend to be dominated in both parties by politicians who defer to national security and military officials, and to the private contractors and campaign contributors enriched by the vast spending that has now become routine. The Obama Justice Department sought to imprison Drake for the rest of his life after he discussed non-classified documents with a newspaper reporter probing an estimated billion dollars in waste at NSA. Drake was fortunate that the Government Accountability Project's Jesslyn Radack, also present in the audience at Cato, represented him, and that his case went to a judge whose rulings paved the way for a fair trial. Authorities then in effect gave up, and settled the once-mammoth prosecution by extracting from Drake a plea bargain to a minor charge.
After Wyden's speech I asked him on his way out if he had any plans to seek a Senate hearing that would call witnesses who could rectify the stonewalling he is receiving from intelligence officials on the scope of surveillance. He responded that he has no control over hearings or their witnesses.
As a follow-up, I asked whether it would not be pertinent to hear from such figures as Klein or former Qwest Communications CEO Joseph Nacchio, who argued extensively and unsuccessfully in court papers that he was selectively prosecuted by the Bush administration for securities violations as punishment for his refusal in February 2001 to cooperate without court approval of a Bush request for massive surveillance of Qwest customers. Qwest was the only one of the four "Baby Bell" giant telecom companies to resist the federal pressure illegally to provide customer records without a court order, evidence has shown.
Wyden responded to me that he knows of both Klein and Nacchio, and what he called their "important" roles in the privacy/security debate. But the senator reiterated that he has no power to call any witnesses.
As an experienced politician, Wyden took a number of steps in his public comments to proceed diplomatically while also advocating his position. He confined his comments about colleagues, for example, essentially to Colorado Senator Mark Udall (D), whom Wyden praised as fighting also for a balanced view of privacy rights. Wyden did not mention any of his obstacles or opponents in the Senate. Also, he praised rank-and-file intelligence analysts, whom he described as simply trying to do their jobs and protect the country.
Under no such restrictions here, we note that the Senate Intelligence Committee is chaired by Dianne Feinstein, a Democrat of California at right. She is widely regarded as a reflexive supporter of government secrecy and vigorous intelligence-gathering. She has scant track record of using her powers to probe potential Big Brother tactics and other illegal methods used against United States citizens. Virtually all hearings by her committee are secret, for example.
Feinstein is a former mayor of San Francisco, and is thus perceived by some as a liberal. But she has long fought critics on the left, and bipartisan civil rights advocates question her motives especially on her willingness to oversee military and intelligence officials on anything but the most deferential terms.
Among the reasons frequently cited are the business interests of her husband, financier Richard Blum. Like the relatives of a number of other powerful lawmakers, Blum has been highly prominent in federal contracting.Together, Feinstein and Blum are extremely wealthy. A Wikipedia entry states, "By 2005 her net worth had increased to between $43 million and $99 million....Her 347-page financial-disclosure statement...– characterized by the San Francisco Chronicle as "nearly the size of a phone book" – draws clear lines between her assets and those of her husband, with many of her assets in blind trusts."
Feinstein succeeded as chairman West Virginia Democrat John D. Rockefeller IV. His namesake is regarded by one account as the richest American in history (measuring assets to Gross National Product). Rockefeller's family fortune began in oil but then diversified in a wide array of financing of industries. During World War I, it included the nation's major supplier of small arms in a program federally supervised by Samual Bush, the great-grandfather of President George W. Bush.
Drawing on that kind of long history of bipartisan cooperation for public-private goals, Rockefeller led the way in 2008 in Senate approval of immunity from customer lawsuits for major telecom companies alleged to violate customer Fourth Amendment protections against warrantless searches. President Obama, who campaigned against such immunity, switched his position once he defeated Hillary Clinton for the Democratic nomination.
The immunity for telcom companies backed by Feinstein, Rockefeller, Obama and the vast majority of Republicans in effect thwarted the right of the public to learn from litigation what has been occurring across the nation as longstanding privacy rights are threatened by massive electronic surveillance.
Wyden said he sees some hopeful signs in recent correspondence with National Security officials. He repeated several times that he and other Senators who know classified matters on national security are typically forbidden to say anything except if the administration declassifies it. In general, he said he believes the government is over-classifying information, thus preventing discussion. But he said he has obtained approval to mention that a ranking official wrote him last week that authorities concede that the FISA court once said that the government had not acted within the spirit of the FISA law in a certain unspecified case.
Wyden said authorities providing even ballpark estimates of how many Americans or messages are under surveillance, saying it would take too much personnel time to compute. Wyden said he is not looking for a count or any other time-consuming exercise, simply a rough estimate of whether the number is high or low.
During the panel discussion afterward, Lichtblau said news reporters face increasing difficulties covering the issue for two reasons. One, he said that public interest in privacy appears to be dwindling since 2008.
Also, he said reporters and their sources are under increasing threat of federal prosecution. Lichtblau also wrote an important book in the field, Bush's Law, published in 2008. His Times colleague Risen, who authored State of War: The Secret History of CIA and the Bush Administration in 2006, faces jailing for contempt of court in a long-running effort by federal prosecutors to force him to disclose sources as they seek to convict a former CIA employee, Jeffrey Sterling.
In May, Wyden made a speech on the Senate floor arguing that "Privacy should be the default not the exception" in national security wiretaps. In it, he said,
"Bad Internet policy is increasingly premised on false choices…there is no sound policy reason to sacrifice the privacy rights of law abiding American citizens in the name of cyber-security". With the recent passage of CISPA in the House of Representatives and the Senate moving to consider another cyber-security bill, Senator Wyden took to the Senate floor to affirm his commitment to opposing any bill that asks Americans to make the false choice between secure networks and personal privacy."
For now, his is a lonely perspective. Wyden joked that he hears that the Senate approval rating may be as low as eight percent. But, he said, he rarely encounters even that eight percent.
"One of the reasons people are so unhappy with government," he concluded, is that officials constantly mislead the public. When the American people find out, he predicted, "they are going to be really angry."
:: photo courtesy of OregonDOT, via Creative Commons license ::
Andrew Kreig is a Washington-based non-profit executive, attorney and investigative reporter who directs the non-partisan Justice Integrity Project, a legal reform group.