Senator Wyden: Public Has Been Actively Mislead By Government Officials Over Surveillance

from the indeed dept

Tue, Jul 23rd 2013 3:48pm — Mike Masnick

While some Senators are insisting that we need to keep going with NSA surveillance and just trust them that the NSA and FBI aren't abusing the law and the information they have access to, others are pointing out that it's a lot of hogwash. Senator Ron Wyden, who has been leading the charge against these programs for years (and was mostly ignored for that effort), gave a great speech describing how defenders of the program are directly choosing to mislead the American public. A key point, though it comes late in the speech, is the following:

The public was not just kept in the dark about the Patriot Act and other secret authorities. The public was actively misled.

Most of the speech is detailing exactly how that happened, and the distortions defenders of the program try to tell the American people and why they're wrong. We'll highlight a few, but reading or watching the whole speech is worthwhile.

He notes that he warned, quite specifically (and publicly) that when the American public found out how the laws were being interpreted, they would be surprised. That, clearly, proved accurate:

When the Patriot Act was last reauthorized, I stood on the floor of the United States Senate and said “I want to deliver a warning this afternoon. When the American people find out how their government has interpreted the Patriot Act, they are going to be stunned and they are going to be angry.” From my position on the Senate Intelligence Committee, I had seen government activities conducted under the umbrella of the Patriot Act that I knew would astonish most Americans.

Furthermore, he points out that officials chose to directly mislead the American public.

If that is not enough to give you pause, then consider that not only were the existence of and the legal justification for these programs kept completely secret from the American people, senior officials from across the government were making statements to the public about domestic surveillance that were clearly misleading and at times simply false.

The misleading statements from the officials are based on how the government interprets the law as compared to how the public actually reads the law:

...there are effectively two Patriot Acts the first is the one that they can read on their laptop in Medford or Portland, analyze and understand. Then there’s the real Patriot Act the secret interpretation of the law that the government is actually relying upon. The secret rulings of the Foreign Intelligence Surveillance Court have interpreted the Patriot Act, as well as section 702 of the FISA statute, in some surprising ways, and these rulings are kept entirely secret from the public. These rulings can be astoundingly broad. The one that authorizes the bulk collection of phone records is as broad as any I have ever seen.

And, of course, such a situation is clearly anti-democratic:

Without public laws, and public court rulings interpreting those laws, it is impossible to have informed public debate. And when the American people are in the dark, they can’t make fully informed decisions about who should represent them, or protest policies that they disagree with. These are fundamentals. It’s Civics 101. And secret law violates those basic principles. It has no place in America.

Furthermore, Wyden digs into the ridiculous claim by defenders of the NSA -- including from President Obama, Senator Feinstein and NSA boss Keith Alexander -- that there is sufficient "oversight" in these programs because others in the government review them. That, of course, is ridiculous:

...when James Madison was attempting to persuade Americans that the Constitution contained sufficient protections against any politician or bureaucrat seizing more power than that granted to them by the people, he did not just ask his fellow Americans to trust him. He carefully laid out the protections contained in the Constitution and how the people could ensure they were not breached. We are failing our constituents, we are failing our founders, and we are failing every brave man and woman who fought to protect American democracy if we are willing, today, to just trust any individual or any agency with power greater than the checked and limited authority that serves as a firewall against tyranny.

As for the claims by defenders that the business records collection is no different than a grand jury subpoena, Wyden rightly calls bullshit on that:

For years, senior Justice Department officials have told Congress and the public that the Patriot Act’s business record authority which is the authority that is used to collect the phone records of millions of ordinary Americans is “analogous to a grand jury subpoena.” This statement is exceptionally misleading it strains the word “analogous” well beyond the breaking point. It’s certainly true that both authorities can be used to collect a wide variety of records, but the Patriot Act has been secretly interpreted to permit ongoing bulk collection, and this makes that authority very, very different from regular grand jury subpoena authority. Any lawyers in here? After the speech is over come up and tell me if you’ve ever seen a grand jury subpoena that allowed the government on an ongoing basis to collect the records of millions of ordinary Americans. The fact is that no one has seen a subpoena like that is because there aren’t any. This incredibly misleading analogy has been made by more than one official on more than one occasion and often as part of testimony to Congress. The official who served for years as the Justice Department’s top authority on criminal surveillance law recently told the Wall Street Journal that if a federal attorney “served a grandjury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”

Going even further, he trashes the claims that this is all okay because intelligence officials tell Congress "the truth" behind closed doors in classified sessions. As he notes, this means that they're lying to the public, and that's not right:

Sure, members of Congress COULD get the full story in a classified setting, but that does not excuse the practice of half truths and misleading statements being made on the public record. When did it become all right for government officials’ public statements and private statements to differ so fundamentally? The answer is that it is not all right, and it is indicative of a much larger culture of misinformation that goes beyond the congressional hearing room and into the public conversation writ large.

And all of this spying and deceit has a very real impact on our democracy:

James Madison, the father of our constitution, said that the the accumulation of executive, judicial and legislative powers into the hands of any faction is the very definition of tyranny. He then went on to assure the nation that the Constitution protected us from that fate. So, my question to you is: by allowing the executive to secretly follow a secret interpretation of the law under the supervision of a secret, nonadversarial court and occasional secret congressional hearings, how close are we coming to James Madison’s “very definition of tyranny”? I believe we are allowing our country to drift a lot closer than we should, and if we don’t take this opportunity to change course now, we will all live to regret it.

Democracy isn't electing officials to lie to the public while enabling the vast intelligence community to spy on everyone via secret court orders. It's time that the public spoke up and made it clear to our elected officials that this is not what we signed up for at all.

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Filed Under: dianne feinstein, fisa amendments act, james clapper, keith alexander, nsa surveillance, patriot act, ron wyden

42 Comments

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Reader Comments

The First Word

“

Ron Wyden for President, 2016.

—Anonymous Coward

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silverscarcat (profile), 23 Jul 2013 @ 3:43pm

Why...
Why didn't the public listen to him sooner?

He's one of the few people in congress that actually does his job.
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Anonymous Coward, 23 Jul 2013 @ 4:22pm

We no longer have a Democracy. We now have a Democorruptcy.
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That Anonymous Coward (profile), 23 Jul 2013 @ 4:27pm

And still they will vote for the guy who spends the most money and supports their "issues" of control over others.

We have the Government we deserve.
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Anonymous Coward, 23 Jul 2013 @ 4:37pm

Re:
"We have the Government we deserve."

It saddens me to admit it, but I believe you are right.
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Mark Murphy (profile), 23 Jul 2013 @ 4:58pm

Digital vs. Physical
One of the key arguments made with the NSA "hoovering" the metadata is that they are "third-party records" and there is no right to privacy.

However, if law enforcement tried to claim that a rented apartment was a "third-party domicile" -- arguing that since you don't own it, you have no right to privacy, and they can toss any apartment at will -- that would get thrown out without a warrant.

Similarly, if law enforcement tried to claim that a rented post office box was a "third-party communications service", and that they could rifle through those whenever they want, that too would get tossed without a warrant.

Ditto for rented storage units.

We need case law that establishes that "rented" email accounts, "rented" file manager accounts, "rented" social network accounts, "rented" phone numbers, and the like are no different than rented apartments, PO boxes, and storage units. While we are "renting" from third parties, the privacy expectation is not lost just because third parties are involved.
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CharlesGrossman (profile), 23 Jul 2013 @ 5:07pm

Our Funny Spellcheckers
Is it Senator Wyden who misspelled "misled" in the headline, or is it the headline writer? Of course your spell-checker won't catch this because "mislead" is a real word too -- just not the right one here.
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Anonymous Coward, 23 Jul 2013 @ 5:19pm

Is there any redressal for non-americans and their online data being scooped up 24/7 ? Even if the american public suppresses the bulk collection of domestic data, I'm sure no american senators will care about the privacy of foreigners, and the data of millions of people around the world will still be handed out by MS / Google / Facebook to NSA. I would personally never do any business with cloud / email providers based in US. I hope this opens up the market for secure encrypted hosting providers where they themselves cannot access the data of their customers. I would pay for email / chat and voip / phone services like that.
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Paul, 23 Jul 2013 @ 5:21pm

You said: "The public was not just kept in the dark about the Patriot Act and other secret authorities. The public was actively misled".

We see heroes like Snowden hunted, as an "Enemy of the State", hiding to avoid his assassination or incarceration as ordered by our secretive "Authorities" using their illegal & criminal powers granted by the Patriot Act under secrecy by a secret, non accountable court.

So I ask: When do we get to see these "Leaders", these corrupt elected & appointed officials, who were SWORN IN UNDER OATH TO UPHOLD THE CONSTITUTION OF THE UNITED STATES, stood up in a row and publicly executed by a firing squad for their transgressions??

No, I'm not holding my breath while I wait. BUT, I'd bet if they televised it the Global Audience would be larger than any televised event to date, including the Superbowl! Hmmm, imagine the revenue that would generated during this spectacular event....
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Pedro, 23 Jul 2013 @ 5:30pm

Man, sometimes i think that a man like Senator Ron Wyden around here (a certain country in Europe) is what need right now. Not that there isn't any but still...
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lucidrenegade (profile), 23 Jul 2013 @ 5:37pm

Re:
That's a PPV I'd watch.
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Anonymous Coward, 23 Jul 2013 @ 5:38pm

Ron Wyden for President, 2016.
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Betty Banks (profile), 23 Jul 2013 @ 5:45pm

Author Masnick
I'm new to Tech Dirt, and thank you Mike Masnick. Your article, "NSA defenders in the Senate flip out..." is one of the best articles I've seen written on the subject of the nsa, since I began reading on the subject and one of the best writers / researchers overall. Thanks!
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Anonymous Coward, 23 Jul 2013 @ 5:54pm

Re:
+1
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Alana (profile), 23 Jul 2013 @ 5:59pm

Of course! Don't you know the public is the #1 enemy of the US Government?
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musicalmissionary, 23 Jul 2013 @ 6:12pm

Traitor
I'm waiting for the headline "Senator Wyden Charged With Espionage." I mean, he has essentially informed the public about government wrongdoing, just like Manning and Snowden. I wouldn't be surprised if he shows up in solitary or Venezuela tomorrow.
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Count Me In, 23 Jul 2013 @ 6:24pm

Re: Wyden For President
Absolutely! Where can I send my campaign contributions? :-)
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GoTeamVenture, 23 Jul 2013 @ 8:04pm

Ron Wyden for president!
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silverscarcat (profile), 23 Jul 2013 @ 8:31pm

Re: Traitor
I think, at this point, that's the one thing Obama can't do, otherwise he'll get Congress to Impeach him faster than Clinton was.
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[citation needed or GTFO], 23 Jul 2013 @ 8:48pm

Re: Why...
Why didn't the public listen to him sooner?

Because the general public were clueless due to mainstream media never covering it until Snowden. And those around him shunned his words as "ravings" and willingly preferred to be kept blind and deaf just so they could maintain their power and paychecks.

Once you have power, wouldn't you do anything you could to maintain it? Even if it meant being the stereotypical politician and ignoring any morals and ethics you might have had?
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Anonymous, 23 Jul 2013 @ 8:58pm

Re:
What the US has is more like a demonocracy.
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Spaceman Spiff (profile), 23 Jul 2013 @ 9:05pm

Wyden for President!
Obama lost my support when he switched, as Senator, his opposition to the Patriot Act, to support of it... His domestic policies be damned - they do NOT make up for his violation of the Constitution which he has SWORN to uphold and defend! He has become, IMO, a tyrant! Hopefully we will elect a new President in 2016 who will reverse most of these egregious activities!
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Annonimus, 23 Jul 2013 @ 10:40pm

Re: Why...
,,He's one of the few people in congress that actually does his job"

That right there is the problem as he is doing the job a congressman is empowered by law and the public to do: representing his constituents in the congress and senate debates, and not the secret interpretation of the job by most of the congress that involves being a lobby's pawn and the person who just votes for what their own side considers is a good law.
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Anonymous Coward, 24 Jul 2013 @ 12:23am

Re:
At the rate our government is operating, it looks like we're going to get Obama again in 2016.
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DOlz (profile), 24 Jul 2013 @ 12:28am

Re:
Wyden/Warren 2016
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Zakida Paul (profile), 24 Jul 2013 @ 1:27am

The public have been actively misled by government officials over a whole lot of issues not just in the US but also in the UK.

From constant massaging (to put it nicely) of figures to make the government look like what they are doing is best for the country to outright lies to justify ideological policies (Ian Duncan Smith, I am looking at you).

Governments lie and mislead the public, that is what they do. What do you think is the real reason for trying to censor and control the Internet?
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Zakida Paul (profile), 24 Jul 2013 @ 1:29am

Re: Wyden for President!
Well, you will elect a new President in 2016 as Obama's two terms will be up but in all likelihood it will be someone from one of the two main parties who will simply toe the corporate party line. Nothing will change. If you want things to change you need to look outside the Democrat and Republican parties.
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Zakida Paul (profile), 24 Jul 2013 @ 1:31am

Re:
If he does get elected president, he will just change his position. That is what politicians do, they say what is necessary to get elected and then do the opposite when in office.
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Anonymous Coward, 24 Jul 2013 @ 2:32am

Re: Re:
Nope, the US has been, for the last fifteen years, a Dictatorial Oligarchy masquerading as a democracy.
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Anonymous Coward, 24 Jul 2013 @ 2:33am

Re:
More importantly, you left out the relevant part: Against enemies both foreign and domestic.
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Anonymous Coward, 24 Jul 2013 @ 4:08am

i dont know what day or what time of day Senator Wyden made this speech but consider that only yesterday there was yet another "secret meeting" called by the head of the NSA, Gen. Keith Alexander, attended by 'members-only' for a briefing in response to the amendment by Rep. Justin Amash, according to an invitation distributed to members of Congress this morning and forwarded to HuffPost. "In advance of anticipated action on amendments to the DoD Appropriations bill, Ranking Member C.A. Dutch Ruppersberger of the House Intelligence Committee invites your Member to attend a question and answer session with General Keith B. Alexander of the National Security Agency," reads the invitation.

The invitation warned members that they could not share what they learned with their constituents or others. "The briefing will be held at the Top Secret/SCI level and will be strictly Members-Only," reads the invite.'

even this whole meeting was held in secret, by 'members only' who couldn't discuss anything outside the meeting! it basically shows that absolutely no notice was taken of Wyden or the public. the reign of tyranny is indeed enlarging and if it isn't stopped, very quickly now, it will most definitely be too late. the even more troubling aspect is that the USA is still trying to force itself and it's views on to other nations as well! a few have gone along, including the UK, so far. they need to stand up to what is going to literally be a world ruled by nothing but tyrannical governments. think about that for a moment and then tell me that you want to be under a regime like that, not just in your own country but in every country in the world! God help us all!!!
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Richard (profile), 24 Jul 2013 @ 4:20am

Re: Re: Re:
I think it goes further back than that...
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Anonymous Coward, 24 Jul 2013 @ 4:51am

Where do these people get the idea that they were being misled?
Was it the
1) secret interpretation of existing laws?
2) new secret laws?
3) secret courts?
4) secret meetings about the secret interpretation of secret laws?
5) secret enforcement of secret interpretations of secret laws?
6) secret persecution of those who (unknowingly) violate the secret laws?

Or ... maybe it is the lies about all the above.
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Robert, 24 Jul 2013 @ 6:17am

Full story?
"Sure, members of Congress COULD get the full story in a classified setting"

Right-because the intelligence community has ALWAYS been so open and forthcoming to congress, right?

LOLOLOLOLOLOL
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That One Guy (profile), 24 Jul 2013 @ 7:04am

Re: Re: Traitor
Could go either way really. Either they'd realize that they weren't as above the rules as they thought, and impeach him to get rid of the threat he'd pose to them, or they'd realize that they could be targeted just as well as the peons, and buckle under in fear.
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John Fenderson (profile), 24 Jul 2013 @ 10:14am

Re: Traitor
he has essentially informed the public about government wrongdoing, just like Manning and Snowden.

Yes, but he's been extremely careful to do so within the restrictions of law. He's even been scolded for doing things this way as it has meant that all he could do publicly is imply and make general accusations, not provide anything like specifics.

Snowden gave us specifics.

They're both addressing the same issue, but with a different focus. Either of them alone would be much less effective. We need both.
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pixelpusher220 (profile), 24 Jul 2013 @ 10:20am

Re:
"Is there any redressal for non-americans and their online data being scooped up 24/7 ?"

Short answer? No. It's a foreign country and you don't get any say over it.

Long answer? Only as much as your own gov't/companies participated with the NSA. You could stop them from cooperating, but that's it.
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pixelpusher220 (profile), 24 Jul 2013 @ 10:22am

Re:
I'd say we need more 'people' like Wyden, everywhere.
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Sheogorath (profile), 24 Jul 2013 @ 7:24pm

Errata
Senator Wyden: Public Has Been Actively Mislead By Government Officials Over Surveillance
Shouldn't 'mislead' read 'misled' if you're using the past tense?
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Another Anonymous Coward, 25 Jul 2013 @ 11:00am

Re: Re:
We do have the government that we deserve, we have the government that apathy has bought us. There is a way to fix this and it is not through legislation. The idea that you can fix something that took 226 years to completely destroy is ignorant at best.
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Jere Nelson, 14 Sep 2013 @ 2:16am

Help, i can not recevie any help
This is not a "add your comment" comment. I live in the Philippines. I am recently divorced. Since I a retired, have very little money for hired lawyers a allowed her to do the paperwork. Well the accounting firm QDRO handled the paperwork. They set it up and then sent it to Vanguard. /vanguard got the correct address. However when I tried to complete the form to get my funds, Vanguard had the wrong address again. When I tried to call Vanguard they had the wrong address listed on my account again. I had only ten minutes to my calling account and could not give me time to corrected the mistake. As of now I have no way to correct the error. Vanguard nno QUDO would do nothing.

I have no money now and I will have to go borrow some. I have a wife you needs to see a doctor. The services here in the Philippines is a cash only operation. I have a setp daughter who needs to pay tuition my lawyer etc.
Can you help me?
Jere Nelson
559647455
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Anonymous Coward, 17 Feb 2014 @ 10:02am

Re: Re:
Write more later
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Anonymous Coward, 17 Feb 2014 @ 10:05am

Re: Errata
Mislead
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