Statement of Senator Wyden
On Patriot Act Reauthorization
May 26, 2011
M. President, the United States Senate is now preparing to pass another four-year extension of the USA Patriot Act. I have served on the Intelligence Committee for a decade, and I want to deliver a warning this afternoon:
when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry. And they will be asking senators, “Did you know what this law actually permits?” “Why didn’t you know before you voted on it?” The fact is that anyone can read the plain text of the Patriot Act, and 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’s almost as if there are two Patriot Acts, and many members of Congress haven’t even read the one that matters. Our constituents, of course, are totally in the dark. Members of the public have no access to the executive branch’s secret legal interpretations, so they have no idea what their government thinks this law means.
Let me bring up some historical examples, to give you a clearer example of what I am talking about. And before I begin I want to be clear that I am not claiming that any of the specific activities that I am about to discuss are still happening today. I am bringing them up because I think they might help remind my colleagues how the American people tend to react when they learn about domestic surveillance activities that are inconsistent with what they think the law should allow. When Americans learn about intelligence activities that
are consistent with their understanding of the law they buy more newspapers and read about these activities with interest and often admiration. But when people learn about intelligence activities that are outside the lines of what is generally believed to be permitted, public reaction tends to be quite negative.
Here’s my first example: The CIA was established by the National Security Act of 1947, which stated that the agency was
“forbidden to have…law enforcement powers or internal security functions.” Members of Congress and legal experts interpreted that language as a
“clear prohibition against any internal security function under any circumstances.”
A small group of CIA officials, however, had a different interpretation. They decided that the 1947 statute contained legal “gray areas” that allowed the CIA to monitor American citizens for possible contact with foreign agents. They believed this meant that 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 anti-war activists like Jane Fonda.
This small group of CIA officials kept the program – and their “gray area” justification of the program – a secret from the American people and most of the U.S. 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?
No, on December 22, 1974, investigative reporter Seymour Hersh detailed the program on the front page of the New York Times. The revelations – and the public uproar they inspired – led to the formation of the Church Committee, which spent nearly two years investigating questionable and illegal activity at the CIA. The Church Committee published fourteen 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 CIA authority and the creation of the House and Senate Intelligence Committees....
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