When historians write about the civil-liberties crisis of this decade, the story will be full of vivid figures—Bradley, now Chelsea, Manning, the fragile soldier who broke in a battle zone and has paid a high price; Edward Snowden, the high-school dropout who did a data-dump of the government's deepest secrets and ended up cowering in Sheremetyevo Airport; Julian Assange, the flawed prophet of global leaks seeking refuge from sex-abuse charges in the Ecuadorian Embassy in London.
But if there is any good outcome to the current miserable situation, it will also be the work of a figure a who is a good deal less colorful but much more durable: Senator Ron Wyden of Oregon.
For years before the Snowden leaks, the Democratic lawmaker had been carefully balancing two imperatives: his own oath as a member of the Senate Intelligence Committee to keep the secrets conveyed in confidence to the committee; and his larger commitment to the American people, who were being fed a diet of soothing lies.
Ideally, the committee would represent the people, advocating their interests behind closed doors. But, Wyden says, “Congress can't do vigorous oversight if they can't get straight answers.”
In other words, as we now know, the spymasters lie—not only to us, in public, but to their supposed overseers on the Hill. That sense—that executive-branch officials weren't telling the truth—led to Wyden's now famous question to James Clapper, director of national intelligence, in an open Senate hearing last March:
“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
Clapper responded: "No, sir ... not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."
Only after the Snowden revelations did Clapper admit his answer was “erroneous,” or “the least untruthful” one he could provide. And Wyden recently said, “There's not a shred of evidence today that that would have been corrected [in public] absent the [Snowden] disclosures.”
Former NSA Counsel Joel Brenner accused Wyden of “vicious tactic[s],” suggesting that he had “sandbagged” the director. But Wyden did not catch Clapper by surprise. The question had been sent to him the day before the hearing. Wyden broke no oath and leaked no secret. He simply asked questions—questions to which, as Wyden pointed out, the Obama Administration had already given deliberately false answers to the public. The senator's stand was fully within the law and the Constitution. That it was for a long time a lonely one is sobering.
These days, people are less quick to attack Wyden's patriotism; he is at the center of the debate over surveillance reform. Along with Senators Mark Udall of Colorado and Richard Blumenthal of Connecticut, both Democrats, and Kentucky Republican Rand Paul, Wyden last month introduced a bill designed to rein in the excesses of the NSA. Their bill would:
- outlaw the bulk collection of phone and communications records, whether or not the agency listens to the calls or reads the emails themselves (“You don't have to listen to the calls,” Wyden says—the “metadata” amount to “a national human-relations database” of American citizens);
- end the “backdoor-search loophole” by which spies can listen to phone calls to foreign numbers in order to get access to calls by Americans in this country (“That is going to be increasingly relevant ... as communications systems around the world merge”);
- set up an independent “constitutional advocate” to argue before the secret Foreign Intelligence Surveillance Court when the government makes applications involving important constitutional issues (“Is there any other court in America that only hears one side on important constitutional questions?”);
- and provide statutory “standing to sue” for Americans “professionally impacted” by NSA eavesdropping—in effect, overruling the Supreme Court's decision in Clapper v. Amnesty International. That case was brought by journalists, lawyers, and human-rights advocates whose clients and sources abroad had stopped talking to them because of fear of surveillance. The Court threw the plaintiffs out of court because they couldn't prove they'd been spied on.
The purpose of the bill, he says, is to “set out a bipartisan bar”—a yardstick to help distinguish real efforts at reform from hollow laws like the FISA Amendments Act of 2008. What Wyden calls “the business-as-usual brigade” is “going to talk the language of reform while behind the scenes they're doubling down” on demands for surveillance authority, he said. “Some of what's being discussed would step back from reform in the name of reform”—for example, proposals to legalize collection and storage of “metadata” on Americans' phone calls.
“If in the name of reform a step backward is taken where you actually give a stamp of approval to constitutionally flawed policies,” he warns, “I think our country is going to very much regret it.” But even if a strong bill is passed, new issues will surface. Wyden's current area of interest is the NSA's use of “geolocation”—reading GPS data from Americans' cellphones to track their movements. After repeated questioning, NSA officials recently admitted that they had conducted one small “pilot project” assessing the utility of accessing this data. That's a step forward, Wyden says. But “there's a lot more that needs to be told.”
There's no danger Ron Wyden will end up living in an airport lounge; but his style of careful, conscientious service can be “dispirited, lonely kind of work.” Right now, though, it's not. Last week the Washington Post's Andrea Peterson wrote, “If the public and the media should learn one thing from the revelations from former National Security Agency (NSA) contractor Edward Snowden, it's to pay very careful attention to what Sen. Ron Wyden says.”