Ron Wyden: “An Obvious Question I Have Not Answered”

In the background of the larger drama of the leak witch hunts is a paragraph that, to me, summarizes where the balance between secrecy and sanity is in our country.

An obvious question that I have not answered here is whether any warrantless searches for Americans’ communications have already taken place. I am not suggesting that any warrantless searches have or have not occurred, because Senate and committee rules regarding classified information generally prohibit me from discussing what intelligence agencies are actually doing or not doing. However, I believe that we have an obligation as elected legislators to discuss what these agencies should or should not be doing, and it is my hope that a majority of my Senate colleagues will agree with that searching for Americans’ phone calls and emails without a warrant is something that these agencies should not do.

This is the language Ron Wyden used to attempt to persuade his colleagues to join his opposition to the reauthorization of the FISA Amendments Act without first including protections for Americans’ communications. A very similar paragraph appeared at the end of Wyden and Mark Udall’s dissent from the Senate Intelligence Report on the legislation.

Now, I have already shown that even leak witch hunt convert Dianne Feinstein (who supports reauthorization without telling citizens what the legislation really does) made it clear that while NSA may not target Americans under FAA, the agency does query information collected under FAA to find the communications of Americans. That is, DiFi herself made it clear that the communications collected “incidentally” are fair game for review. And both the Wyden/Udall dissent and the exchange Wyden had with Director of National Intelligence James Clapper last year–which he re-released in conjunction with his hold–make it more clear that the government is reviewing Americans’ communications it collects in the guise of “targeting” non-US persons.

Everyone–Wyden, DiFi, DNI Clapper–admit that the government is accessing Americans’ communications under FAA; it’s just the latter two are pretending they’re not doing so by hiding behind the magic word “targeting.”

With that said, let’s look at Wyden’s paragraph closely and what it says about democracy in the age of secrecy. The first sentence reads like CYA, insulation against any accusation that Wyden has revealed classified information.

An obvious question that I have not answered here is whether any warrantless searches for Americans’ communications have already taken place.

Yet at the same time, Wyden defines the question that DiFi refuses to answer clearly: whether or not the government is using FAA to conduct warrantless searches of Americans’ communications.

It’s an obvious question, Wyden continues, but he’s not legally permitted to answer it.

I am not suggesting that any warrantless searches have or have not occurred, because Senate and committee rules regarding classified information generally prohibit me from discussing what intelligence agencies are actually doing or not doing.

That said, Wyden makes it clear he knows the answer. Which, given that he insists other Senators ought to demand to know the answer makes it pretty clear what that answer is.

However, I believe that we have an obligation as elected legislators to discuss what these agencies should or should not be doing,

But the whole scaffold of secrecy on which this legislative discussion takes place leaves Wyden with the weakest of legislative hammers with which to embarrass his colleagues into backing his hold on FAA.

it is my hope that a majority of my Senate colleagues will agree with that searching for Americans’ phone calls and emails without a warrant is something that these agencies should not do.

If this were not a secret discussion–if Wyden were not prohibited from stating clearly what he and DiFi and James Clapper have made clear indirectly–then he could say explicitly that a vote to reauthorize FAA is a vote to allow these agencies to search for Americans’ phone calls and emails without a warrant. That’s a vote these Senators’ constituents would likely despise.

Yet Wyden and the ACLU and the TeaParty will never be able to whip against such a vote effectively because Senators can pretend the question has never been answered.

“Targeting,” they’ll say, when their constituents call to complain.

This is an area where it’s clear that secrecy doesn’t hide the underlying facts; it serves only to prevent real democratic accountability. But that’s true well beyond this legislation. There’s the Trans Pacific Trade deal on which Wyden has been forced to try to legislate transparency, which Obama’s Administration has kept secret, in the lead-up to an election, from the many members of the Democratic base that loathe it. And that’s even true of StuxNet, where we now know DiFi has rubber stamped the release of the next generation of WMD without first demanding enough details to understand what a grave threat it might be.

This is what this leak witch hunt is all about: guarding a system that makes democratic accountability impossible.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

13 replies
  1. ondelette says:

    Let me ask you something. In as succinct terms as possible, state what Ron Wyden means by searching for Americans’ phone calls and emails, including what corpus is being searched and how it is being searched, and precisely (it should fall out of your description) why he thinks it should be illegal.

  2. ondelette says:

    OT – On a note completely related to nothing, but only because I have nowhere else to write: Today is World Refugee Day. Everybody please take a moment to think about the world’s 43 million refugees and IDPs and wish them shelter and peace and relief from their journeys, their losses, and their separations.

  3. emptywheel says:

    @ondelette: We know that it includes at least communications of the community of interest (probably 2 degrees of separation) and “targets.” So if your colleague spoke to a person in Yemen, your communications may well be in there.

    And the problem is that nothing is stopping anyone from going in there and saying, “Let’s see if ondelette’s conversations are in there” for whatever reason (and remember DOJ has argued for 10 years they can use these intercepts to find evidence of crimes they can use to recruit informants).

    We also know this is now all accessible to NCTC, and they can/do pattern analysis with other govt databases (including things with a very tangential tie to terrorism). So for example, they might decide they want to read your Yemen-tied conversations based on you buying hydrogen peroxide.

    Finally, we have reason to believe they’re also collecting some significant subset of all smartphone users geolocation just in case they want to go back and use geolocation to find out who people are meeting with and where.

    Some of the people whose conversations are being listened to, we have every reason to believe and in some cases actual proof, are journalists, humanitarian workers, lawyers, and missionaries, all of whom should have heightened First Amendment protection for their privacy.

  4. earlofhuntingdon says:

    One would have to be enormously credulous, or born again, to imagine that this government does not engage in wholesale copying and listening of domestic American telecommunications traffic, as it does of foreign traffic. That a sitting US senator has to frame his arguments as if it might not have taken place, even to frame a rhetorical point, is a sad commentary on this government’s dramatic dysfunction.

  5. thatvisionthing says:

    @earlofhuntingdon: What ever happened to the Speech and Debate Clause? No legal way to gag a congressperson IN Congress? iirc, Senator Mike Gravel got the Pentagon Papers fully released to the public record by reading them into the record of a Senate buildings and grounds subcommittee meeting. Looking on wikipedia, Supreme Court, Gravel v US, 5-4, and the dissents were on the grounds that the court was construing the privilege too narrowly. If Wyden wants us to know, can’t he just read into a Senate record?

  6. joanneleon says:

    I always wonder whether these elected officials are considering the fact that their own personal communications are being hoovered up too. Or did they write some special (and secret) clause into these laws to exempt themselves?

    I’m sure no one would ever abuse, for their own personal gain, that data being stored. Nevah.

  7. ondelette says:

    @emptywheel:

    I’m going to ignore the fact that you think you know who is being intercepted, and that your list is so broad and long that I’m in it, if it was indeed the list that Ron Wyden seemed worried about.

    My point is that it isn’t what Ron Wyden said. He said that it was a violation of privacy to search phone calls and emails.

    it is my hope that a majority of my Senate colleagues will agree with that searching for Americans’ phone calls and emails without a warrant is something that these agencies should not do.

    Got it? That the search itself, not the compilation, without a warrant, was “something these agencies should not do.”

    But the Senate Judiciary Committee has known since at least the debate over all this during the FAA and before that what was being recorded and stored was everything, what mattered was what was searched and listened to. Now Ron Wyden’s just interested in what is being searched. That’s what he said, and I see no reason to amplify that as you are doing to intercepted, or listened, or anything else. Just leave it at searched, if you want to see the really horrifying truth that he’s trying to convey without breaching classified information.

    Let me spell it out for you:

    If I’m the NSA, and I don’t have the right to listen without a warrant, but I do have the right to collect (which was granted at some time before the FISA Amendment debate by the FISC) without listening, and I don’t have the right to target without minimization or a warrant, then doesn’t the law keep me from endangering people?

    The answer is no. It would only do so if all the searches were for people by name (or searches on primary key ID in a relational database). If searches are for patterns, then any pattern turns up names. The search may not be enough for a warrant, so nobody can target and nobody can listen, but the computer can amend the profiles of the names generated. After a lot of searches, there maybe enough suspicion built to consider the nexus of the searches that created that suspicion to be a signature. If that signature scores high with any known “high value targets”, then anyone who has scored high with the signature now falls under suspicion, and nobody has ever been a target, or been listened to, or fallen under any warrant provisions of the current law.

    Consequently, the searches themselves are the cause of Wyden’s concern, not the listening, which can be controlled by targeting, or the inteception, which could be controlled, were it not for the existence of the database, by minimization.

  8. bmaz says:

    @ondelette: Maybe you have “nowhere else to write” as you indicated at comment 2 above because you are so unnecessarily rude and belligerent to those you engage. Please try to engage in good faith; this would be especially appropriate when you are dealing with the owner of the blog.

  9. ondelette says:

    @bmaz:

    No, bmaz. Your criticism taken.

    I have nowhere else to write because the other places where I wrote do not respect pseudonymity. I was writing at FDL, and I was participating in a discussion on economic issues when I watched Jane Hamsher out someone by accessing their information and revealing where and at what organization they were commenting from. Salon requires payment to comment or registration at either Google or Facebook.

    I have both a situation in which my identity cannot be compromised and my machine cannot be compromised, for reasons that will not be discussed. If I see something like what I saw at FDL, I’m off.

  10. Doug Kahn says:

    @ondelette: It sounds as though you’ve thought about this stuff enough to have a persuasive take on something I’ve been wondering about.

    I don’t know whether Senator Wyden was trying to communicate to Americans a fact about the surveillance program, but the discussion you’ve had here makes it clear that it’s possible to extract information from almost any statement, even one so noncommittal. If you take the attitude that it’s essential, to protect national security, to hide both what you’re doing and what you’re not doing, lying becomes necessary.

    Once a question is asked, even a response of silence is revealing. Aside from the select committees of Congress, only judges have access to Executive Branch perpetrators, and are permitted to ask questions. Not in public, of course.

    I imagine that giving noncommittal answers to a judge is very likely to elicit a threat of contempt. A judge’s questions would have to deflected by the perp; the first line of defense is probably a claim of national security. If that weren’t to shut down the questioning, lying to the judge would become necessary.

    Is that happening?

  11. klynn says:

    @ondelette:

    “I have both a situation in which my identity cannot be compromised and my machine cannot be compromised, for reasons that will not be discussed.”

    Your situation should not release you from respectful manners. No one here has threatened you with “outing” your identity. An ironic thought to project “outing” on EW, a main writing force on the wrongful acts of the Plame outing.

    Your pseudonym has great meaning. I want to pay attention to your words; however, your approach causes me to be dissuaded from reading your comments that very well may contain valuable content.

    bmaz asked that you participate in good faith. This is a very reasonable request.

  12. ondelette says:

    @klynn:

    I think actually bmaz believed I was down to this forum because I was banned from the others. I was not. I left due to security issues, as I explained to bmaz. I have no such illusion as you contend, that my security issues give me any such license. What you, and bmaz, perceive as rudeness I perceive as doing the exact same truth to power dance that bmaz, Marcy, Jim White and the other authors believe they engage in when they author columns here. I see no need to have one standard of harshness to the point of, and even exceeding rudeness when criticizing major officials and members of the press, and another approaching delicacy and even sycophancy when addressing the blog owner.

    The height of my supposed rudeness here was when Marcy (and other blog owners from other blogs) criticized the existence of an executive order criminalizing material support for armed groups that interfere with humanitarian aid in Somalia. You can criticize all you want the Supreme Court’s or the Administration’s broad definitions of material support to include what should not be included, you can criticize all you want the misuse by the military of humanitarian aid. But do not construe support for armed groups interfering with humanitarian aid in a region of armed conflict as anything other than what it is — support for a war crime under the Geneva Conventions and potentially a grave breach or a crime against humanity. Signatories of those conventions, which includes all nations, are obligated to do something about groups that interfere with such humanitarian aid, more so if it is during a famine.

    Your blog owner deserved it. That’s my justification, not my situation. I was speaking truth to power.

  13. ondelette says:

    @Doug Kahn:

    It’s a very simple result of the fact that the questions are themselves descriptions. A person does or does not fit the descriptions. If a set of descriptions is identified as a set that is fit by a terrorist, all people who fit that set are terrorists.

    You can replicate this logic yourself. Do a Google search for something. Before you type enter, look at what you’ve typed in. It’s a rudimentary description of what you wish to find. If you fail to find it, you will start over, or modify your search terms with another such description. The collection of the descriptions, if you were forced to keep going until all the responses fit what you were looking for, is exactly what the military is calling a “signature”. A set of descriptions they believe is shared only by those they are trying to target.

    So of course you would want them to have a warrant before they searched, if your name was going to turn up. Otherwise you would quite literally not be “secure in your person and effects.”

Comments are closed.