Last year, when the Senate Select Committee on Intelligence met to complete legislation renewing soon-to-expire surveillance laws, Sen. Ron Wyden (D-OR) recognized an opportunity — a long-shot, but an opportunity nonetheless — to advocate for new restrictions on government snooping.
Behind closed doors, well out of earshot of privacy advocates, most other senators, and his own constituents, Wyden sought to amend the bill. He wanted it to direct the Justice Department’s inspector general to determine approximately how many Americans have had the contents of their communications gathered under section 702 of FISA that gave rise to PRISM, and to require government officials to obtain court orders before querying 702 collections with the names of American citizens — in other words, to close a backdoor surveillance loophole.
Both amendments failed, over his pleas, and the committee cleared the broader bill by a wide vote margin.
But what happened next is what really irks civil libertarians and others who want the process of legislating intelligence matters to become more transparent. The chair and vice chair of the committee touted the outcome of the committee vote, while Wyden was prohibited by committee rules from publicly registering and explaining his opposition.“The bill we approved today extends critical counterterrorism and intelligence gathering tools for the Intelligence Community,” Sens. Dianne Feinstein (D-CA) and Saxby Chambliss (R-GA), the committee’s chair and vice chair announced in a statement at the time. “The committee has determined that these provisions provide intelligence to identify terrorist operatives and to understand the intentions of our adversaries around the world. These authorities cannot be allowed to expire and we urge quick action by the Senate and House to enact this extension.”
While they boasted of the committee’s achievement, Wyden was effectively struck silent under what amounted to a partial gag order. For the next two weeks, while SSCI prepared an official report which would include his objections, the committee rules prevented him from saying almost anything about what had happened.
“We’ve been told by Senator Feinstein’s staff that under the SSCI’s Committee Rule 9.3, members and staff are prohibited from discussing the markup or describing the contents of the bill until the official committee report is released,” his then-communications director Jen Hoelzer told reporters at the time, hoping to convey her immense frustration with the process and to tip off the press that a story awaited them — if they could hold out until June 7. “[T]he fact that they’ve already put out a press release does not lift this prohibition.”
Wyden’s challenges didn’t begin when his amendments failed, and they didn’t come to an end when his minority report became public. The same set of rules that muzzled him after the votes had been cast had also thwarted his ability to build any kind of constituency — in the Senate or the broader public — for his legislation. They even prevented him from saying precisely what the committee’s business was or when it would be conducted.
All intel committee members are of course legally obligated to protect classified information. And that made it hard for Wyden to sound the alarm about the collections programs that Edward Snowden revealed. But none of this information is or was classified. The committee rules, in effect, serve as a secondary handicap to any member — on the committee or off — who believes the country’s surveillance law needs to be restrained or at least debated.
We’ve explained in two different stories how secrecy and procedural restrictions prevent congress from exercising robust oversight of the intelligence community — but the same impediments hobble congressional efforts to legislate on intelligence matters.
Secrecy isn’t the only problem here. Intelligence committee members have groused for years that because they don’t control the intelligence budget, they can’t really control the intelligence apparatus. And because there are so many spy agencies, and the intelligence committee only has exclusive authorizing jurisdiction over a couple of them, they end up crossing swords with other committees over what powers the agencies themselves should have.
But the intelligence committees are anything but powerless. And it’s when they legislate that members themselves — particularly those who dissent from the status quo — are most constrained by committee protocols.
Over the past two years, Wyden has attempted to impose limits on the sections of the PATRIOT Act and the Foreign Intelligence Surveillance Amendments Act that the administration cites as the sources of authority for the NSA programs Snowden revealed nearly three weeks ago.
“He tried to amend the relevant standard in section 215 of the PATRIOT Act — what the administration is arguing gives them legal authority to collect data on basically every American,” Hoelzer said. “But he was explicitly barred from explaining why it was too broad. He could speak subtly, he couldn’t raise examples, he couldn’t spark public debate.”
Shortly after Snowden’s revelations, Feinstein addressed reporters to assure them that the programs were, overseen, lawful, pursuant to legislation that had been debated and passed.
“Both Senator Wyden and Senator Udall have concerns,” she said. “This was widely debated on the floor when the section of the code was discussed. It was widely debated in the Intelligence Committee when we considered the business records section. So this is simply, it’s renewed every three months, they must go into court, and this is that renewal.”
And she’s correct. But these debates weren’t primed and executed like almost all other major legislative debates in Congress. As Hoelzer explains, although Wyden successfully prevented Congress and the administration from securing early renewal of existing surveillance law without debate, the Senate intelligence committee’s restrictive rules prevented him from building public and member support for restraining that authority.
“How this works in a normal committee is that we announce when markup [hearings are] coming up, that we’re going to introduce our legislation. We put out a press release, we get advocacy groups ginned up, we tell constituents,” Hoelzer said. “In this situation, because of the committee rules, in terms of what’s committee sensitive — it’s not classified — I knew about it. It was on our calendar. But I was not allowed, and none of us within the office was allowed, to share the information outside the office.”
That means the ACLU couldn’t know, other senators couldn’t know, the press couldn’t know. Wyden’s ability to promote changes in law was effectively limited to marshaling his own powers of persuasion in closed committee sessions.
“I couldn’t even confirm that a hearing was even taking place that day,” Hoelzer added.
Wyden ran into a similar dilemma in 2011. At that time, the committee had hoped to combine and pass two major intelligence bills, without advance notice.
“Nobody was allowed to know they were marking up either of these bills, nor that they were marking them up in conjunction,” Hoelzer recalls.
Wyden attempted to amend the legislation to require the Obama administration to provide a declassified explanation of its legal interpretation of section 215 of the PATRIOT Act, which it uses to authorize bulk collection of telephonic metadata and to force a DOJ inspector general audit of the collection of information on Americans under section 702. Both amendments failed. Wyden opposed the committee report, but was constrained from explaining why.
He did score one victory. The bill would have reauthorized some controversial, expiring provisions of FISA 18 months ahead of schedule. Wyden placed a hold on the bill and the FISA component was ultimately stripped out (though it passed on its own a year later).
Recently there has been some movement in the direction of transparency. Nearly a year after the committee voted down Wyden’s FISA amendments — and shortly after the committee favorably reported the nomination of John Brennan to be CIA director — Feinstein and Chambliss announced they’d soften the secrecy requirements enough to release roll calls of committee votes on legislation and confirmation to the public.
This debate was in the public record long before Snowden came along — though of course the extent and architecture of the programs were classified, alluded to only glancingly in news reports which lacked the granular details we’ve been provided in recent weeks. Most of it can be ascertained from the information Wyden was able to share in his minority reports, which were released after his amendments failed and the bills cleared the committee. Those votes, and the debates that preceded them had to occur in private.
In its defense a committee aide notes that “when the Committee is acting on unclassified measures, there is usually classified discussion about them, which requires the debate to go on in closed session.” But the committee’s rules prevented Wyden from concertedly lobbying in advance of his legislative efforts, and it’s in that context that they failed at the committee level (often by large margins) and remained abstractions to most of his Senate colleagues.
Which is to say, it’s plausible that Wyden wouldn’t have been able to change these outcomes, even if he’d been allowed to speak more freely. But it’s hard to argue he was given a real chance to shake things up.
“It’s a lot harder to generate interest when it appears to be old news,” Hoelzer said.