Senator: Surveillance state based on secret law 'has no place in America'

But if it's not stopped now, it may soon be too late

The US government has created "an always expanding, omnipresent surveillance state," according to Senator Ron Wyden (D-OR), and if something isn't done, it may soon become impossible to dismantle.

"If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we will all live to regret it," Wyden said in a speech at the Center for American Progress on Tuesday.

Wyden, a member of the Senate Intelligence Committee, said that although he and others in the Senate have tried to alert the US public to the erosion of civil liberties caused by government surveillance programs, current law bars even members of Congress from publicly disclosing details of those programs.

The gag order is so strict, Wyden said, that although he and some of his Congressional colleagues managed to shut down an NSA email mass-monitoring program in 2011, they weren't allowed to tell anyone they had done so until just a few weeks ago.

Some of this is only now starting to change, Wyden said, in light of the revelations made by NSA leaker (and current asylum-seeker) Edward Snowden.

"Last month, disclosures made by an NSA contractor lit the surveillance world on fire," Wyden said. "Several provisions of secret law were no longer secret and the American people were finally able to see some of the things I've been raising the alarm about for years. And when they did, boy were they stunned, and boy are they angry."

Law without end

Like many others in Congress, Wyden supported the Patriot Act and other national security legislation proposed in the wake of the terror attacks of September 11, 2001. But he did so, he said, with the understanding that those laws had built-in expiration dates – dates that have since been extended several times without significant public discussion.

"The result: the creation of an always expanding, omnipresent surveillance state that hour by hour chips needlessly away at the liberties and freedoms our Founders established for us, without the benefit of actually making us any safer," Wyden said.

Making matters worse, he said, how the government interprets surveillance laws – and what it believes it is allowed to do under them – is determined by a secret court established by the Foreign Intelligence Surveillance Act (FISA).

"It is a fundamental principle of American democracy that laws should not be public only when it is convenient for government officials to make them public."
– Senator Ron Wyden

Technically, the FISA Court is intended as a check against overreaching by national security agencies. But according to Wyden, in practice the Court almost never disagrees with the government officials who petition it. Because the Court and its proceedings are secret, there is never even anyone present to offer a dissenting opinion.

"The government lawyers walk in and lay out an argument for why the government should be allowed to do something," Wyden observed, "and the Court decides based solely on the judge's assessment of the government's arguments."

In effect, he said, this means the government is operating under secret laws established by a secret authority, with no real oversight from Congress or anyone else, something Wyden believes is antithetical to the American system of government.

"I and several of my colleagues have made it our mission to end the use of secret law," Wyden said. "It is a fundamental principle of American democracy that laws should not be public only when it is convenient for government officials to make them public ... It's Civics 101. And secret law violates those basic principles. It has no place in America."

Not only has secret law been used to establish programs of mass surveillance of law-abiding Americans, he said, but it has also been used to justify such serious matters as drone strikes on US citizens.

"I believe every American has the right to know when their government thinks it is allowed to kill them," Wyden said.

Setting matters straight

According to Wyden, most of the broadening of government surveillance powers happened during the Bush administration. But although President Obama agreed with Wyden that FISA Court opinions needed to be made public in 2009, not one single opinion has been published since then, and the surveillance state has only grown larger.

All the while, he said, the intelligence agencies have not only failed to inform the public of their actions, but have repeatedly made directly misleading statements about their activities, giving information contrary to what was actually going on.

Wyden called upon members of Congress to join him and his colleagues in their efforts to pass new legislation that reforms the Patriot Act, allows the decisions of secret courts to be declassified "in a responsible manner," and brings greater openness and accountability to domestic surveillance activities.

"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," Wyden said. ®

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