Small Business Additional Temporary Extension Act of 2011

BREAK IN TRANSCRIPT

Mr. WYDEN. Mr. President, the Senate is preparing to pass another 4-year extension of the USA PATRIOT Act. I have served on the Intelligence Committee for over a decade and I wish to deliver a warning this afternoon. When the American people find out how their government has secretly interpreted the PATRIOT Act, they are going to be stunned and they are going to be angry. They are going to ask Senators: Did you know what this law actually permits? Why didn't you know before you voted on it? The fact is anyone can read the plain text of the PATRIOT Act. Yet many Members of Congress have no idea how the law is being secretly interpreted by the executive branch because that interpretation is classified. It is almost as if there are two PATRIOT Acts, and many Members of Congress have not read the one that matters.

Our constituents, of course, are totally in the dark. Members of the public have no access to the secret legal interpretations, so they have no idea what their government believes the law actually means.

I am going to bring up several historical examples to try to demonstrate what this has meant over the years. Before I begin, I wish to be clear I am not claiming any of the specific activities I discuss today are happening now. I am bringing them up because I believe they are a reminder of how the American people react when they learn about domestic surveillance activities that are not consistent with what they believe the law allows. When Americans learn

about intelligence activities that are consistent with their understanding of the law, they look to the news media, they follow these activities with interest, and often admiration. But when people learn about intelligence activities that are outside the lines of what is generally thought to be the law, the reaction can get negative and get negative in a hurry.

Here is my first example. The CIA was established by the National Security Act of 1947 and the law stated that the agency was ``forbidden to have law enforcement powers or internal security functions.'' Members of the Congress and legal experts interpreted that language as a clear prohibition against any internal security function under any circumstances. A group of CIA officials had a different interpretation. They decided that the 1947 law contained legal gray areas that allowed the CIA to monitor American citizens for possible contact with foreign agents. They believed this meant they could secretly tap Americans' phones, open their mail, and plant listening devices in their homes, among other things. This secret legal interpretation led the CIA to maintain intelligence files on more than 10,000 American citizens, including reporters, Members of Congress, and a host of antiwar activists.

This small group of CIA officials kept the program and their ``gray area'' justification to the program a secret from the American people and most of the government because, they argued, revealing it would violate the agency's responsibility to protect intelligence sources and methods from unauthorized disclosure. Did the program stay a secret? It didn't. On December 22, 1974, investigative reporter Seymour Hersh detailed the program on the front pages of the New York Times. The revelations and the huge public uproar that ensued led to the formation of the Church Committee. That committee spent nearly 2 years investigating questionable and illegal activity at the CIA. The Church Committee published 14 reports detailing various intelligence abuses which, in addition to illegal domestic surveillance, included programs designed to assassinate foreign leaders. The investigation led to Executive orders reining in the authority of the CIA and the creation of the House and Senate Intelligence Committees.

In 1947, President Harry Truman and his top military and legal advisers secretly approved a program named PROJECT SHAMROCK. PROJECT SHAMROCK authorized the Armed Forces Security Agency and its successor, the NSA, to monitor telegraphs coming in and out of the United States. At the outset of the program, companies were told that government agents would only read ``those telegrams related to foreign intelligence targets,'' but as the program grew, more telegrams were sent and received by Americans and they were read. During the program's 30-year run, the NSA analysts sometimes reviewed as many as 150,000 telegrams a month.

While the Ford administration said it made all pertinent information about PROJECT SHAMROCK available, the Senate Intelligence Committee and the Justice Department had kept the program secret from the public. They argued that public disclosure was both unjustified and dangerous to national security, and it avoided Congress's questions regarding the legality of the program by stating that the telegrams present somewhat different legal questions from those posed by domestic bugging and wiretapping. That program didn't stay secret either.

The newly formed Senate Intelligence Committee ultimately disclosed the PROJECT SHAMROCK program on November 6, 1975, arguing that public disclosure was needed to build support--build support--for a law governing NSA operations. The resulting public uproar led to a congressional investigation. The NSA's termination of PROJECT SHAMROCK and the passage of the Foreign Intelligence Surveillance Act of 1978, which attempted to subject domestic surveillance to a process of warrants and judicial review.

Years later, during the Reagan administration, senior members of the National Security Council secretly sold arms to Iran and used the funds to arm and train Contra militants to topple the Nicaraguan Government. Selling arms to Iran violated the official U.S. arms embargo against Iran and directly funding the Contras was illegal under the Boland amendment. That was the one Congress passed to limit U.S. Government assistance to the Contras.

But the officials at the National Security Council were convinced they knew better. They were convinced that violating the embargo and illegally supporting the Contra rebels would help free American hostages and help fight communism in Nicaragua. Instead of engaging in a public debate and trying to convince the Congress and the public they were right, they secretly launched an arms program and hid it from the Congress and the American people. How did that work out for them?

The New York Times published a story of these activities on November 25, 1987. A joint congressional committee was launched to investigate the Iran Contra affair with televised hearings for over a month. The House Foreign Affairs Committee and the House and Senate Intelligence Committees held their own hearings. The first Presidential commission investigating the National Security Council was launched. Multiple reports were published documenting the administration's illegal activities, and the Nicaraguan Government sued the United States. Dozens of court cases were filed and National Security Council officials--including two National Security Advisers--faced multiple indictments.

Finally, following the terrorist attacks of September 11, 2001, a handful of government officials made the unilateral judgment that following U.S. surveillance law, as it was commonly understood, would slow down the government's ability to track suspected terrorists. Instead of working with the Congress, instead of coming to the Congress and asking to revise or update the law, these officials secretly reinterpreted the law to justify a warrantless wiretapping program that they hid from virtually every Member of the Congress and the American people.

It is not clear how long they thought they could hide a large, controversial national security program of this nature, but they kept it so secret that even when it yielded useful intelligence, classification restrictions sometimes prevented the information from being shared with officials who could have used it.

I was a member of the Senate Intelligence Committee at this point--a relatively new member--but the program and the legal interpretations that supported it were kept secret from me and virtually all of my colleagues.

Again, did that program stay secret? The answer is no. After several years, the New York Times published a story uncovering the program. The resulting public uproar led to a divisive congressional debate and a significant number of lawsuits. In my view, the disclosure also led to an erosion of public trust that made many private companies more reluctant to cooperate with government inquiries.

As most of my colleagues will remember, Congress and the executive branch spent years trying to sort out the details of that particular program and the secret legal interpretation--the secret legal interpretation--that was used to justify it. In the process of doing so, Congress also attempted to address an actual surveillance issue. I think all my colleagues who were here for that debate would agree those issues could have been resolved far more easily, far less contentiously, if the Bush administration had simply come to the Congress in the first place and tried to work out a bipartisan solution to them rather than, in effect, trying to rewrite the law in secret.

When laws are secretly reinterpreted this way, the results frequently fail to stand up to public scrutiny. It is not surprising, if you think about it. The American law-making process is often cumbersome, it is often frustrating, and it is certainly contentious. But over the long run, this process is a pretty good way to ensure that our laws have the support of the American people, since those that do not will actually get revised or repealed by elected lawmakers who follow the will of our constituents. On the other hand, when laws are secretly reinterpreted behind closed doors by a small number of government officials--and there is no public scrutiny, no public debate--you are certainly more likely to end up with interpretations of the law that go well beyond the boundaries of what the American people are willing to accept.

Let me make clear that I think it is entirely legitimate for government agencies to keep some information secret. In a democratic society, of course, citizens rightly expect their government will not arbitrarily keep information from them, and throughout our Nation's history Americans have vigilantly guaranteed their right to know. But Americans do acknowledge certain limited exceptions to the principle of openness. We know, for example, that tax officials have information about all of us from our tax returns. But the government does not have the right or the need to share this information openly. This is essentially an exception to protect personal privacy.

Another limited exception exists for the protection of national security. The U.S. Government has an inherent responsibility to protect our people from threats. To do this effectively, it almost always requires some measure of secrecy. I do not expect General Petraeus to publicly discuss the details of every troop movement in Afghanistan any more than early Americans expected George Washington to publish his strategy for the Battle of Yorktown. By the same token, American citizens recognize that their government may sometimes rely on secret intelligence collection methods in order to ensure national security, in order to ensure the safety of the American people, and they recognize that these methods can often be more effective when specifics are kept secret.

But while Americans recognize that government agencies sometimes rely on secret sources and methods to collect intelligence information, Americans also expect these agencies will cooperate at all times within the boundaries of publicly understood law.

I have served on the Senate Intelligence Committee for a decade, and I do not take a backseat to anybody when it comes to protecting what are essential sources and methods that are needed to keep the American people safe when intelligence is being gathered. But I do not believe the law should ever be kept secret. Voters have a right and a need to know what the law says and what their government thinks the text of the law means. That is essential so the American people can decide whether the law is appropriately written and they are in a position to ratify or reject the decisions their elected officials make on their behalf.

When it comes to most government functions, the public can directly observe the government's actions and the typical citizens can decide for themselves whether they support or agree with the things their government is doing. Certainly, in my part of the world, American citizens can visit the national forests and decide whether they think the forests are appropriately managed. When they drive on the interstate, they can decide for themselves whether those highways have been properly laid out and adequately maintained. If they see someone punished, they can decide for themselves whether the sentence was appropriate, whether it was too harsh or too lenient.

But Americans generally cannot decide for themselves whether intelligence agencies are operating within the law. That is why the U.S. intelligence community evolved over the past several decades. The Congress set up a number of watchdog and oversight mechanisms to ensure that the intelligence agencies follow the law rather than violate it. That is why the Senate and House each have a Select Intelligence Committee. It is also why the Congress created the Foreign Intelligence Surveillance Court. It is why Congress created a number of statutory inspectors general to act as independent watchdogs inside the intelligence agencies themselves. All these oversight entities were created at least in part to ensure that intelligence agencies carry out all their activities within the boundaries of publicly understood law.

But the law itself must always be public. Government officials must not be allowed to fall into the trap of secretly reinterpreting the law in a way that creates a gap between what the public believes the law says and what the government secretly claims it says. Anytime that happens, it seems to me there is going to be a violation of the public trust. Furthermore, allowing a gap of this nature to develop is simply shortsighted. Both history and logic should make it clear--and that is why I brought these examples to the floor of the Senate--that secret interpretations of the law will not stay secret forever and, in fact, often come to light pretty quickly. When the public eventually finds out that government agencies have been rewriting surveillance laws in secret, the result, as I have demonstrated, is invariably a backlash and an erosion of public confidence in these government agencies.

I believe this is a big and growing problem.

Our intelligence and national security agencies are staffed by many talented and dedicated men and women. The work they do is very important, and for the most part, they are extraordinarily professional. But when members of the public lose confidence in these agencies, it does not just undercut morale, it makes it harder for these agencies to do their jobs. If you ask the head of any intelligence agency, particularly an agency that is involved in domestic surveillance in any kind of way, he or she will tell you that public trust is the coin of the realm, it is a vital commodity, and voluntary cooperation from law-abiding

Americans is critical to the effectiveness of our intelligence agencies.

If members of the public lose confidence in these government agencies because they think government officials are rewriting surveillance laws in secret, it is going to make those agencies less effective. As a member of the Intelligence Committee, I do not want to see that happen.

I wish to wrap up now with one last comment; that is, as you look at these statutes, and particularly the ones I have outlined--where you have so many hard-working lawyers and officials at these government agencies--I wish to make it clear I do not believe these officials have a malicious intent. They are working hard to protect intelligence sources and methods and for good reason. But sometimes they can lose sight of the differences between the sources and methods, which must be kept secret, and the law itself, which should not. Sometimes they even go so far as to argue that keeping their interpretation of the law secret is actually necessary because it prevents our Nation's adversaries from figuring out what our intelligence agencies are allowed to do.

I can see how it might be tempting to latch onto this ``Alice in Wonderland'' logic. But if the U.S. Government were to actually adopt it, then all our surveillance laws would be kept secret because that would, obviously, be even more useful. When Congress passed the Foreign Intelligence Surveillance Act in 1978, it would have been useful to keep that law secret from the KGB so Soviet agents would not know whether the FBI was allowed to track them. But American laws should not be public only when government officials think it is convenient. They ought to be public and public all the time. The American people ought to be able to find out what their government thinks those laws mean.

Earlier this week, I filed an amendment, along with my colleague from the Intelligence Committee, Senator Mark Udall, and that amendment would require the Attorney General to publicly disclose the U.S. Government's official interpretation of the USA PATRIOT Act. The amendment specifically states that the Attorney General should not describe any particular intelligence collection programs or activities but that there should be a full description of ``the legal interpretation and analysis necessary to understand the ..... Government's official interpretation'' of the law.

This morning, Senator Mark Udall and I--and we had the help of several colleagues: Senator Merkley, Senator Tom Udall--reached an agreement with the chair of the Intelligence Committee, Senator Feinstein. She is going to be holding hearings on this issue next month.

Senator Mark Udall and I, as members of the committee, will be in a position to go into those hearings and the subsequent deliberations to try to amend the intelligence authorization. If we do not get results inside the committee, because of the agreement today with the distinguished chair of the Intelligence Committee, Senator Feinstein, and the majority leader, Senator Reid, we will be in a position to come back to this floor and offer our original amendment this fall.

We are going to keep fighting for openness and honesty. As of today, the government's official interpretation of the law is still secret--still secret--and I believe there is a growing gap, as of this afternoon, between what the public believes that law says and the secret interpretation of the Justice Department.

So I plan to vote no this afternoon on this legislation because I said some time ago that a long-term reauthorization of this legislation did require significant reforms. I believe when more Members of Congress and the American people come to understand how the PATRIOT Act has actually been interpreted in secret, I think the number of Americans who support significant reform and the end of secret law--the end of law that is kept secret from them by design--I think we will see Americans joining us in this cause to ensure that in the days ahead, as we protect our country from the dangerous threats we face, we are also doing a better job of being sensitive to individual liberty.

Those philosophies, those critical principles are what this country is all about. And we are going to stay at it, Senator Udall and I and others, until those changes are secured.

I yield the floor.

BREAK IN TRANSCRIPT

Source