Wyden Speech at Wayne Morse Legacy Series

7/22/2019 Wyden Speech at Wayne Morse Legacy Series

1/22

1

Picking Up the Morse Tradition: Taking on Excessive National Security

Secrecy and Asking the Tough Questions

As prepared for delivery

More than sixty years ago, Wayne Morse took a folding chair not unlike the

kind most of us have in our homes down to the Senate floor. Now, if youve never

seen the Senate floor, its an ornate space filled with a hundred old wooden desks -

- one for each senator. The desks, though immaculately maintained, all contain

carvings on the inside of the names of senators who have held that seat in the past.

Its a historic room befitting one of the worlds oldest deliberative bodies. Suffice

it to say, a folding chair didnt quite fit in.

As the story goes, on this particular day, Senator Morse was not sitting at his

desk. Instead, he unfolded that chair in the aisle dividing the two parties, sat down

and refused to move. To add some context, Morse had just recently left the

Republican party in protest of General Eisenhowers decision to choose Richard

Nixon as his running mate. He had not yet joined the Democratic party; that would

not happen for another few years. He was technically an independent, neither

aligned with the Republicans nor the Democrats. He was a man without a party so

he sat like one -- independently. It was a gesture of principle above politics and

above party. It was Wayne Morse through and through.

1


2/22

2

I have the honor to be the current tenant of the seat Senator Morse once held.

And because of that I feel I have the duty to maintain that very same spirit of

principle and independence.

As some of you know, I am a journalists son. Much of my youth was spent

chasing the delusional dream of playing in the NBA while my father travelled from

town to town taking jobs with newspapers and magazines. He researched and

wrote books but most importantly, he asked questions. To me, one of the most

important functions a legislator can perform is to ask tough questions on the

publics behalf to inform the public and serve as a check on the executive branch.

And that was definitely Senator Morses view.

I have been invited today to talk about the surveillance state and its impact

on the rights and civil liberties of Americans. If youll indulge me, Id also like to

talk about my history with Senator Morse and how some of the seminal moments

of his career have affected my own thinking. As I do I hope youll come to see

that much of Senator Morses battle against excessive national security secrecy

resonates in todays interactions between Congress and the Executive Branch.

Senator Morse didnt live to see the creation of the Senate Select Committee

on Intelligence, I am positive that he would agree with the spirit of that committee.

Created as a check on the governments intelligence apparatus in the wake of some

different surveillance scandals, the Intelligence Committees primary function is to

2


3/22

3

conduct vigorous oversight of Americas intelligence agencies. Vigorous oversight

means more than just ensuring that the government doesnt break any laws or that

national security is always protected though those are extremely important

responsibilities. Vigorous oversight also means preserving Constitutional

protections afforded to the American people, and protecting the public from

intrusive government overreach. Among other things, the Intelligence Committee

is charged with making sure that surveillance activities dont undermine

Americans rights and liberties, abroad or at home.

In recent months the public has seen firsthand what intrusive overreach

looks like. As a result of the tidal wave of disclosures that began last June, the

American people have finally been made aware of the full ramifications of the

dragnet domestic surveillance that I and a few of my colleagues have been fighting

to rein in for years. For the past several years I and a handful of other senators, to

include Senator Udall of Colorado and our own Jeff Merkley, have been arguing

that Americans had a right to know how surveillance laws were being secretly

interpreted. We believed that once the public was informed about the true extent

of the governments surveillance authorities, people would demand significant,

meaningful reforms. So our small group has been asking tough questions of our

own. We take advantage of the rare opportunities that we have to publicly

question intelligence officials to widen the publics understanding of domestic

3


4/22

4

surveillance authorities, while working within the confines of classification rules.

And weve continued to push hard for meaningful reforms. Chief among these, of

course, is ending the ongoing bulk collection of Americans phone records.

As has now been declassified, the bulk collection of Americans phone

records began not long after the attacks of 9/11. I was a new member of the Senate

Intelligence Committee back then, and like most Americans I will never forget that

day. As our government scrambled to react in the days and weeks that followed,

Congress passed broad new surveillance legislation known as the Patriot Act. Like

a number of my colleagues I voted for the Patriot Act because it had an expiration

date on it, which would force Congress to come back and debate these authorities

more carefully once the immediate national emergency had passed. To my

dismay, the law was reauthorized without major changes a few years later, and I

was one of ten senators to oppose it at that time.

The Patriot Act is a fairly broad surveillance law on its face. But what most

Americans didnt know was that the secret interpretations of the law were even

broader and Americans now know that the Patriot Act was used to justify the

bulk collection of the phone and email records of huge numbers of law-abiding

Americans. This collection originally began as part of President Bushs

warrantless wiretapping program, but it then came to be justified under these secret

interpretations of the Patriot Act.

4


5/22

5

To understand how that could take place you have to know a little about the

most bizarre court in the U.S. - FISA. The Foreign Intelligence Surveillance Court

is like no other court youve ever seen. It was originally created in the 1970s to

give intelligence agencies a legal venue where they could present classified

evidence to federal judges and obtain routine probable cause warrants for

intelligence purposes. Its authorities were modified periodically over the years, but

in general it continued to resemble a regular federal district court, with the main

difference being that its warrants and court orders targeted terrorists and spies

instead of bank robbers and drug dealers. So far so good.

But then, after 9/11, Congress passed new surveillance laws like the Patriot

Act that didnt closely resemble laws that are used in the ordinary criminal context.

The FISA Court was suddenly called upon to issue significant, binding

interpretations of US surveillance laws and the Constitution entirely in secrecy,

which is something that it was not well-designed to do.

This is because when the government comes to the FISA Court and asks for

permission to conduct specific surveillance activities including the dragnet

collection of Americans phone and email records the Court almost always hears

from the government and no one else. There is no one there to present the other

side of the argument. This is not unusual if a court is considering a routine warrant

application, but it is extremely unusual for a court that is conducting major legal

5


6/22

6

and constitutional analysis. It is a dramatic departure from the adversarial system

that the American judiciary has been based on for over two centuries. And the

consequence of this was that when the government came to the FISA Court and

claimed that the Patriot Act authorized the bulk collection of Americans records,

there was no one there to argue the other side. And when the Court issued its

incredibly troubling interpretation of the law, it did so entirely in secret.

Even before these legal interpretations became public, I spent years trying to

warn people that the government was relying on secret law. When people read

the Patriot Act on their laptops in the library down at the U of O or at a coffee shop

in Medford, they wont see any references to the bulk collection of anything. But

the Court accepted an interpretation of the law that stretched its plain meaning

beyond recognition, and it did so entirely in secret.

Defenders of this surveillance often argue that it isnt very intrusive they

describe it as inoffensive data collection. I firmly disagree with that argument.

Bulk collection of Americans records essentially creates a human relations

database. Your phone records can reveal who you called, when you called them,

how long you talked, and potentially even where you called from. Thats a lot of

information. If I know that someone called a psychiatrist three times in a weekend,

and twice after midnight, I know a lot about their private life. As the Vice

President himself put it several years ago, I dont have to listen to your phone

6


7/22

7

calls to know what youre doing. If I know every single phone call you made, Im

able to determine every single person you talked to. I can get a pattern about your

life that is very, very intrusive.

You can see how this is problematic. This is what motivated me to spend

years working on this issue, writing classified letters, raising the issue at closed

congressional hearings and in one-on-one meetings with senior officials. I also

issued a number of public warnings about the fact that the government was relying

on secret law, though obviously it was difficult to get people to pay attention when

I couldnt explain the details of what was happening.

People sometimes ask me, Ron, if you knew what was going on, why didnt

you just tell everyone? This is something I wrestled with over the years. The

Constitution says that the executive branch cant punish members of Congress for

engaging in speech and debate, no matter what they say, but the Senate itself has

chosen to adopt rules that require members to respect the secrecy of classified

information. As I say, I considered how to proceed and frequently thought about

what Senator Morse would have done. Im honestly not sure, and unfortunately

Senator Morse is no longer around to give me his counsel. In the end I made the

judgment that I could do more for the cause of reform by working within the rules

and being inside the room for closed-door intelligence debates and in the position

to ask hard questions in both closed and open hearings. I can see why some would

7


8/22

8

disagree with that judgment, but I was guided by the belief that in a free society

like ours, the truth will always come out as long as people continue to ask the hard

questions. And I hope Senator Morse would have found that to be a reasonable

judgment. I like to think that Senator Morse would have seen it that way also.

When I think about the importance of standing up for principle on matters of

national security, I often think about his vote against the Gulf of Tonkin resolution

fifty years ago.

He was one of two senators to vote against the Gulf of Tonkin resolution,

and when he did he said that the resolution was a blank check that would be

cashed with the blood and treasure of the American people. He said that history

would prove him right, and he remained a staunch critic of the war throughout his

time in the Senate and afterward.

Senator Morse was not one to shrink away from asking the tough questions,

and he had faith in the publics ability to make the right decisions if given all of the

facts. Like many of us today, he was a firm believer that the American people

should be given the facts to make up their own minds about the United States

foreign and national security policy. To him, circumventing the American peoples

right to decide for themselves was not just a Constitutional failure, but a moral one.

8


9/22

9

He spent years after that vote not only asking whether America could win a war in

Vietnam, but whether America had the right to wage it in the first place. In an

interview with Face the Nation from shortly after the vote he said:

I dont know why we think, just because we are mighty, that we have the right to

substitute might for right.

We now know the full repercussion of this resolution it led to a dramatic

escalation in Americas involvement in Vietnam, and led to the loss of thousands

of American lives. To make matters worse, documents declassified a few years

ago show that the second of the two attacks on US Navy vessels that were used to

justify the resolution actually did not happen at all.

Those of you who are too young to remember the Gulf of Tonkin are

probably reminded of another debate about war that took place forty years later,

and that also involved a lot of fear and a lot of false information.

When President Bush asked Congress for authorization to go to war in Iraq

in 2002, the backdrop was a swirling public debate about whether Saddam Hussein

had weapons of mass destruction that he was likely to use against the United

States. And we all know now that this debate involved a substantial amount of

inaccurate information. On the night before the vote, I went to the Senate floor and

spoke about my opposition to the war resolution. I mentioned a declassified letter

9


10/22

10

from the intelligence community that indicated that Saddam Hussein did not pose

an imminent threat to the United States. Once again, I note that if the American

people had the information they needed to make an informed decision, our history

might have been quite different.

As the debate unfolded in the Senate and I weighed the consequences of war

against the consequences of inaction, I couldnt help but think about the similar

situation that Senator Morse had found himself in nearly forty years earlier. It was

one of the weightiest votes of my career, and in the end I decided that the likely

costs were too great and the justifications too dubious, and I was one of twenty-

three senators to vote against the war.

In hindsight I believe that was the right vote. I am very glad that Saddam

Hussein is no longer on this Earth, and that his days of harming people are over.

But the cost was thousands of lives lost and billions of taxpayer dollars spent, and

in the end the Middle East was no closer to stability than it had been before the war

started. I think that Senator Morse would have agreed that these costs were

incredibly great, and I hope that he would have been proud of my vote.

Now might be as good a time as any to talk a little about my personal

relationship with Senator Morse. I first got to know him when I was a young law

school student down at U of O. It was the end of my first year and Senator Morse

10


11/22

11

was running to reclaim the seat hed lost to Senator Packwood six years earlier.

Here I was, still a young student, volunteering for a man who was and is an Oregon

political hero for having the courage to stand up to his party and his president and

all those who banged the drum for war. It was a position that had ultimately ended

his Senate career, but he cared more about being right than being popular. He was

an independent icon who fought for the rights of the politically powerless and the

disenfranchised and he was willing to make hard decisions in order to improve the

lives of all Americans.

And I was lucky enough to be his driver.

Needless to say he had an impact on my political education. So much so that

I often attribute the direction my career has headed in part to my time working on

those campaigns. As Senator Morses driver I got to spend a lot of time with him

as he met with constituents throughout the state. He would shake hands outside of

lumber mills and union halls. He would listen to the needs and concerns of

Oregonians. Senator Morse was also the one who introduced me to the concerns of

seniors, issues that I would work on exclusively for years after leaving college and

would eventually drive my interest in running for public office.

In 1972, Medicare was still a pretty new thing. It had only been signed into

law seven years earlier and like some other major health care initiatives we may

11


12/22

12

know, it took some time to get it coordinated and work out the bugs. So, when

Senator Morse would meet with elderly constituents they would ask for help

working through this Medicare issue or that Medicare issue. Morse would often

turn to me and say Ill have Ron look into it for you. There I was, in my mid-

20s, with a political legend telling me that I was going to tackle a new policy field

and Ill tell you it was simultaneously scary and exciting. That experience led

me to examine the myriad issues that seniors faced, especially in the arena of

health care. Not long after finishing law school I became a part-time instructor in

gerontology at several Oregon colleges and a co-founder of the Oregon Gray

Panthers.

Of course, I know that Senator Morse would have hit the roof over the news

from this past week. Those of you who have been following this story will know

that the battle over domestic surveillance has taken a very troubling turn, in a way

that goes directly to the question of whether Congress can conduct effective

oversight of Americas national security apparatus. Because of the classified

nature of some of the information, I am somewhat limited in what I can say about

this, but Ill lay out what I can. The Chair of the Senate Intelligence Committee,

Senator Feinstein, gave a bombshell speech last week, and said, in a nutshell, that

the CIA secretly searched a computer system that was located at the CIA but that

was used by Senate staff investigating the CIAs past interrogation practices, and

12


13/22

13

that CIA personnel searched through congressional files in order to find out if the

committee staff possessed certain documents that contradicted the CIAs previous

statements about interrogation and torture.

Senator Feinstein said on the Senate floor that this appears to be a serious

violation of the separation of powers laid out in our Constitution, as well as a

violation of the rules that prohibit the CIA from conducting searches and

surveillance inside the United States. In short, its an incredibly serious matter.

And Im increasingly troubled that the CIAs actions indicate that there are a

number of senior CIA officials who simply dont want the public to learn what this

Senate investigation into interrogation is all about.

Fortunately, the findings of this interrogation investigation have been laid

out in an historic report that I was proud to support along with a bipartisan group

of my colleagues. And Ill be working with my colleagues to make sure that this

report is declassified and made available to the public, because I think its more

important to give the American people the full story about how torture happened,

so that we can have better policies in the days ahead about how to ensure that the

mistakes of the past are never repeated.

I also plan to keep pressing senior CIA officials to explain their actions in

this matter. For example, at the Intelligence Committees last open hearing, before

this story became public, I asked the CIA Director about a federal law known as

13


14/22

14

the Computer Fraud and Abuse Act. I and my intelligence staffer who is a

Beaverton High School graduate named John Dickas often spend weeks

preparing for open hearings and trying to ask the most useful questions we can in a

way that is consistent with the Senates confidentiality and classification rules. So,

based on our concerns about this matter, we decided that it would be useful to ask

the CIA Director whether the federal Computer Fraud and Abuse Act applied to

the CIA. The CIA Director now acknowledges that this law does apply to the CIA,

and I think thats an admission that could be important going forward, as Congress

seeks to determine whether the CIAs actions have violated particular laws or the

Constitution.

Those of you who have been following this story particularly closely might

have noticed that last Tuesday the Director of the CIA tried to suggest that this

unprecedented search of congressional files never took place at all, even though

CIA officials have spent the past few weeks trying to justify it. In fact, the CIAs

own spokesman has said that the CIA conducted this search to find out if the

Intelligence Committee had obtained the particular files in question. But in a

public interview last Tuesday, the CIA Director said, and I quote, As far as the

allegations of CIA hacking into Senate computers, nothing could be further from

the truthwe wouldnt do thatthats just beyond the scope of reason in terms of

14


15/22

15

what we would do. I think any eighth-grader could tell you that these statements

do not add up.

This is just the latest example of what Ive called a culture of

misinformation. What has happened is that the reliance on a secret body of law

and secret surveillance authorities have created a culture in which senior officials

frequently make inaccurate and misleading statements about their authorities and

activities, and then fail to correct the public even when they are called out on it. If

these misstatements were due to simple sloppiness or imprecision, they would

sometimes sound better and sometimes worse than the actual truth. But thats not

whats been happening. These misstatements have consistently exaggerated the

effectiveness of domestic surveillance programs and consistently understated their

intrusiveness, and the slew of recently declassified documents makes it clear that

this has been happening both in public and in private.

To be clear, Im not talking about the rank and file employees of the

intelligence agencies. On the contrary, after thirteen years on the Senate

Intelligence Committee I can say with confidence that the men and women who

make up Americas intelligence agencies are extraordinarily dedicated

professionals who make enormous sacrifices to help keep our country safe. The

pattern of deceptive statements that Im talking about has come from the ranks of

15


16/22

16

the senior officials, and while thats obviously troubling the silver lining is that

means this culture of misinformation can be reformed.

Ill give you a few examples of the inaccurate and misleading statements

that Im talking about. In 2012, the Director of the NSA was asked about domestic

surveillance in a public forum, and he said that the NSA doesnt hold data on US

citizens. He could have avoided the question and given a non-answer. But he

unequivocally said no. You can see that statement on YouTube. In another public

forum a few months later he said that former NSA employees allegations about

bulk collection werent true, even though bulk collection had been going on for

years. No matter how you parse his words on that one, thats another incredibly

misleading statement.

If the NSA Director had simply declined to answer those questions and

continued to operate this giant phone records collection program in secret I

wouldnt have liked it, but I wouldnt have said he was misleading people. But

thats not what happened.

Similarly, Justice Department officials have testified on multiple occasions

that the business records provision of the Patriot Act is analogous to a grand jury

subpoena. Im sure weve got some lawyers or budding lawyers in the house

tonight, so if any of you are aware of a grand jury subpoena that allows for the

16


17/22

17

collection of millions of peoples records on an ongoing daily basis, please come

up afterwards and tell me about it. I make that request almost every time I give a

speech on this topic, and I havent had any takers yet.

And, of course, as many of you know in response to the frequent misleading

statements from the NSA Director, I asked the Director of National Intelligence

our nations top intelligence official at a public hearing last spring whether the

government holds any data at all on millions or hundreds of millions of Americans

and he said no. I was surprised by that answer since Id sent him the question a

day in advance. So I had my intelligence staffer call the Directors staff soon

afterward and urge them to amend the Directors answer. The Directors office

acknowledged that the Directors answer was inaccurate, but they declined to

correct the public record.

To me, thats an example of how embedded this culture of misinformation

has become. It is not possible to know whats in a witness head when they are

sitting at the table in front of the bright lights, but the decision to let that inaccurate

statement stand on the public record was clearly a deliberate decision. My staff

and I were still trying to figure out what to do next when the tidal wave of

disclosures that began last June finally showed the public what was really going

on.

17


18/22

18

Which is probably leading most of you to think, Okay Ron how do you

want to fix it?

We are at a unique time in our constitutional history. In the coming months

Americans will have an opportunity to reshape the way surveillance is conducted

in our nation. Were already beginning to see signs of a new day. Just last week

the ranking Democrat on the House Intelligence Committee, whose district

includes the NSA headquarters, announced for the first time that he supports

ending the NSAs bulk phone records collection.

I plan to work very hard to see that this major reform is made as fast as possible.

As Ive said before, I want American intelligence agencies to be able to quickly

obtain the information that they actually need to protect our country. But this can

be done without collecting the personal information of huge numbers of law-

abiding Americans. Bulk collection is ineffective, overly intrusive and

constitutionally unsound. It is time to end that program.

And I will continue to work with my colleagues to amend the law to prohibit future

administrations from seeking to restart bulk collection in the future.

I also plan to continue pursuing greater protections for Americans internet

communications as well. One of the most important reforms that I believe needs to

be made in this area involves closing what I call the back-door searches loophole.

This loophole is found in section 702 of the Foreign Intelligence Surveillance Act

18


19/22

19

which was intended to give the government more authority to collect the

communications of foreigners outside the United States. However, the disclosures

of the past several months have shown that thousands of Americans have had their

communications swept up under this authority, and this includes a significant

number of wholly domestic communications. The back door search loophole

allows the NSA to go through this pile of supposedly foreign communications

and search for the communications of specific Americans without needing to get a

warrant. I will tell you that is an end run around the Fourth Amendment. If your

communications happen to be collected under section 702 authorities, the

government doesnt need a warrant to search for them, even though the

Constitution says it does. This is a back door that this Congress needs to be shut

and shut tight.

Ive talked about the Foreign Intelligence Surveillance Court already and I

believe one of the most important reforms we can make is to bring that court more

in line with more than 200 years of judicial precedent. When this court considers

major cases it should hear both sides of the argument, and its binding

interpretations of the law and the Constitution should be made available to the

American public. This means that Congress needs to create a public advocate to

argue the other side of major cases before the Court, and to press for the disclosure

of major rulings of law. These two aspects are exceedingly important. Civil

19


20/22

20

liberties cannot get short shrift during court hearings while the resulting ruling

remains classified. The rights of the American people are doubly imperiled in a

system like that and any real surveillance reform effort should include these

protections.

In my view, thats how we end the culture of misinformation that has

facilitated a decade of dragnet surveillance the governments reliance on secret

law must end. This is an issue that is not ideological - its constitutional. It is not

partisan - its American. And knowing Wayne Morse the way I did and the way

you all do, I dont think there is any questions about where he would have come

down on this issue.

And I have seen firsthand how standing alone on important issues of

freedom and security can be the first step toward winning an important debate.

Heres an example. When the annual Intelligence Authorization bill was going

through the Senate Intelligence Committee in late 2012, it included a few

provisions that were meant to stop intelligence leaks but that would have been

disastrous to the news medias ability to report on foreign policy and national

security. Among other things, it would have restricted the ability of former

government officials to talk to the press, even about unclassified foreign policy

matters. And it would have prohibited intelligence agencies from making anyone

outside of a few high-level officials available for background briefings, even on

20


21/22

21

unclassified matters. These provisions were intended to stop leaks, but its clear to

me that they would have significantly encroached upon the First Amendment, and

led to a less-informed public debate on foreign policy and national security

matters. These so-called anti-leaks provisions went through the committee process

in secret, and the bill was agreed to by a vote of 14 to 1 (And Ill let you all guess

who that nay vote was). The bill then made its way to the Senate floor and a public

debate. Once the bill became public, of course, it was promptly eviscerated by

media and free speech advocates, who saw it as a terrible idea. I put a hold on the

bill so that it could not be quickly passed without the discussion it deserved and

within weeks, the offending anti-leaks provisions were removed.

When I think back at my formative years, when I had a full head of hair and

rugged good looks, the influence of two men stand out. One is inarguably my

father. He taught me the importance of asking questions, of seeking accountability,

and that the public has a right to know what their government is doing in their

name and a responsibility to be engaged citizens. His journalistic ethic has infused

everything I do.

The second is Wayne Morse. Not a day goes by when I am not reminded

how his influence has helped to shape my life and the lives of so many Oregonians.

Senator Morse showed that you could be both independent and pragmatic. I think

that should be the mission of every Oregon public official.

21


22/22

22

And Wayne Morse took that thinking a step further. When his principles dictated

that he could no longer be a member of the Republican party, he left and became

an independent. When those principles began to align more with the Democratic

party he joined them. When his party let him down he became an outspoken critic

of the war and a Democratic president. These were not simple decisions, but ones

that were based in principle.

I dont recommend that any Oregon officials compare themselves to Senator

Wayne Morse personally, I dont like my odds. But I believe his legacy has

something to teach all Oregonians about the value of public service, and something

to teach those of us who are lucky to represent Oregon in Congress about the value

of asking tough questions and being skeptical of the excessive secrecy that often

surrounds national security policy. I think that all of us in public service should

hope to find opportunities to take out the Wayne Morse mantle. I know I hope to

do that, and on occasion there are even going to be some issues where you may see

me bring in my own folding chair.

Thank you.

22

Wyden Speech at Wayne Morse Legacy Series

Documents

Transcript of Wyden Speech at Wayne Morse Legacy Series