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2012-05-24

Senate Advances Expanded, "Orwellian" Gov’t Surveillance with FISA Amendments, CISPA

Guests

Michelle Richardson, legislative counsel for the American Civil Liberties Union.

William Binney, served in the National Security Agency for nearly 40 years, including a time as technical director of the NSA’s World Geopolitical and Military Analysis Reporting Group. Since retiring from the NSA in 2001, he has warned that the NSA’s data mining program has become so vast that it could "create an Orwellian state."

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The Senate is closer to renewing controversial measures that critics say would allow the emails and phone calls of U.S. citizens to be monitored without a warrant. The Select Committee on Intelligence has voted to extend controversial amendments to the Foreign Intelligence Surveillance Act that were set to expire at the end of this year. "What we’re asking is that they slow down this process and start first with the question: What type of information are they picking up? How many Americans are being affected? What is the government doing with it?," says Michelle Richardson of the American Civil Liberties Union, which has sued over the U.S. government’s surveillance practices, saying agencies would be able to tap their communications with clients and sources overseas.

We’re also joined by William Binney, who served in the National Security Agency for nearly 40 years, including a stint as technical director of its World Geopolitical and Military Analysis Reporting Group. Since retiring from the NSA in 2001, Binney has warned that the NSA’s data mining program has become so vast that it could "create an Orwellian state." "This is a continuation in the mindless legislation that our Congress has been putting out, just to justify what they’ve been doing for a decade or more," Binney says. "Instead of trying to use discipline and living up to their oath of office to defend the Constitution, they’ve decided to violate the civil liberties and the rights of all U.S. citizens." The Senate is also set to vote soon on the Cyber Intelligence Sharing and Protection Act, a bill opposed by many civil liberties and privacy groups. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: The Senate is moving closer to renewing a series of controversial measures that critics say allows government agencies, including the National Security Agency, to monitor your emails and phone calls. Earlier this week, the Democratic-led Senate Select Committee on Intelligence sought to extend controversial amendments to the Foreign Intelligence Surveillance Act that were set to expire at the end of this year. The amendments were passed in the wake of the Bush administration’s wireless domestic surveillance scandal. Democratic Senator Ron Wyden or Oregon and Mark Udall of Colorado opposed the extension on civil liberties grounds. Wyden said he was concerned that the provision would allow the emails and phone calls of innocent U.S. citizens to be monitored without a warrant. The Senate is also set to vote soon on the Cyber Intelligence Sharing and Protection Act, a bill opposed by many civil liberties and privacy groups.

AMY GOODMAN: Meanwhile, the U.S. Supreme Court has agreed to hear a case to decide the constitutionality of the growing surveillance state. The case involves a group of activists, journalists and lawyers represented by the American Civil Liberties Union who sued over the U.S. government’s surveillance practices, which they say could pick up their communications with clients and sources overseas.

To talk about these developments, we’re joined by two guests. William Binney, National Security Agency whistleblower who served in the agency for nearly 40 years before resigning over the NSA’s role in domestic surveillance after the September 11th attacks, he has warned that the NSA’s data mining program has become so vast it could, quote, "create an Orwellian state." And we’re joined in Washington, D.C., by Michelle Richardson. She is the legislative counsel for the American Civil Liberties Union.

We’re going to turn first to William Binney. Can you talk about these latest developments and the legislation?

WILLIAM BINNEY: Well, in my mind, this is a continuation in the mindless legislation that our Congress has been putting out, just to justify what they’ve been doing for a decade or more. Instead of trying to use discipline and living up to their oath of office to defend the Constitution, they’ve decided to violate the civil liberties and the rights of all U.S. citizens. And that’s what—that’s what’s going on here. That’s what PATRIOT Act Section 215 is about. That’s what they’ve been doing. And what’s happening is they’re destroying the strength of this nation, which is the freedom and liberties that the citizens have to do things.

JUAN GONZÁLEZ: And Michelle—

WILLIAM BINNEY: And when they do that—yes, go ahead.

JUAN GONZÁLEZ: Michelle Richardson, could you talk a little bit about the extension and what it means, but particular aspects of it?

MICHELLE RICHARDSON: Yes. In 2008, Congress passed the FISA Amendments Act, which legalized warrantless wiretapping and allows the government to get yearlong orders to pick up international communications, even if you’re not suspected of doing anything wrong. And that’s emails, texts, internet communications, phone calls. And it’s going to sunset at the end of the year, and Congress needs to reauthorize it. And it’s taken that first that, and the Senate Intelligence Committee secretly voted earlier this week to report out a bill to authorize it for another five years. That text is not available, but we understand that they’re not going to insert privacy protections, and they are not planning on holding any public oversight hearings or calling the administration to testify publicly to better explain how this current program is affecting Americans.

JUAN GONZÁLEZ: And when you say the text is not available, will it ever be available, or are you saying they’re passing—that they are recommending a bill that the public will never be able to see?

MICHELLE RICHARDSON: It will eventually become available. And most likely they will just switch out the words "2012" for "2017." And what we’re asking is that they slow down this process and start first with the question: What type of information are they picking up? How many Americans are being affected? What is the government doing with it? And then they can decide how to build in protections into this warrantless wiretapping protection that would better protect Americans’ Fourth Amendment rights. But right now, this is premature, and Congress should not be moving forward already with a reauthorization.

AMY GOODMAN: Michelle Richardson, can you talk about the ACLU lawsuit regarding the provision, which is now going to be heard by the Supreme Court?

MICHELLE RICHARDSON: Yes. The day that George Bush signed this bill into law, the ACLU sued and challenged the constitutionality of the law. The case is called Amnesty v. Clapper, and we represent Amnesty International and other organizations that work overseas and in conflict zones, who reasonably believe that their communications are being caught up in these NSA dragnets, and have a reasonable fear. And it’s having a chilling effect on the work they’re doing overseas, their very important work.

So, that was four years ago, and the case is just getting to the Supreme Court, and they are just deciding whether our clients will have standing. We’re very far away from getting to the merits of the case. If the Supreme Court decides in our favor, it goes all the way back to the beginning, and then we’ll probably talk about state secrets and not get to an actual ruling on whether this sort of mass, suspicionless wiretapping of Americans is constitutional for many years, which underscores why it’s so important for Congress to get this right. It’s going to be a very long time before the courts get through all of the processes to actually decide these sorts of cases, if they ever do. So it’s critical that Congress build in all of these protections. They’re really the only step here to protect us.

JUAN GONZÁLEZ: I want to go to a clip of Democratic Congressmember Hank Johnson questioning NSA director, General Keith Alexander, in March. He asked whether the NSA has the ability to spy on Americans who might hypothetically send insulting emails about former Vice President Dick Cheney.

REP. HANK JOHNSON: An American emailing another American about Dick Cheney—and does the NSA have capacity to find out who those parties are by monitoring—by the content of their email?

GEN. KEITH ALEXANDER: No. In the United States, we would have to go through an FBI process, a warrant, to get that and serve it to somebody to actually get it. If it were oversea—

REP. HANK JOHNSON: I see, but you do have the capability of doing—

GEN. KEITH ALEXANDER: But not in the United States.

REP. HANK JOHNSON: Not without a warrant.

GEN. KEITH ALEXANDER: No, no. We don’t have the technical insights in the United States. In other words, you have to have something to intercept or some way of doing that, either by going to a service provider with a warrant, or you have to be collecting in that area. We’re not authorized to collect, nor do we have the equipment in the United States to actually collect that kind of information.

JUAN GONZÁLEZ: That was Georgia Democratic Congressmember Hank Johnson questioning NSA director, General Kevin Alexander. Alexander actually denies the NSA has the technology to intercept emails sent by Americans to other Americans. William Binney, your response?

WILLIAM BINNEY: That really flies in the face of that NSA room in the AT&T building in San Francisco that’s hooked up to the wires or the—or the optical fibers inside the United States with that Narus device, that that right there is capability to collect inside this country. And besides, if you wanted to find somebody who was talking about Cheney and the hunting accidents, all you’d have to do is put in the words "Cheney," "hunting," "shooting," and look for combinations like that in text, and then that would pull that out. That’s a simple process to find that kind of stuff.

AMY GOODMAN: Now, William Binney, just for listeners and viewers who didn’t happen to see you on Democracy Now! a few weeks ago when you were in New York in this extended broadcast we did, your own experience in calling out the NSA has been extremely traumatic for you and for your family, for your wife, for your son, as the FBI raided your house. You had worked at the NSA for nearly 40 years, including time as technical director of the NSA’s World Geopolitical and Military Analysis Reporting Group. And since you quit right after 9/11 in October, you’ve warned the NSA’s data mining program has become so vast it could create an Orwellian state. When did the FBI raid your house?

WILLIAM BINNEY: That was 26 July of 2007.

AMY GOODMAN: This was the time when you were calling attention to your concerns about the NSA spying on Americans to the Pentagon inspector general and to a Senate oversight committee?

WILLIAM BINNEY: Yes, we had done that, and also Kirk Wiebe and I had written letters or composed emails to send to Congress to—and talk to representatives in Congress, trying to alert them to the dangers of this.

I would like to point out one thing of why they’re not building in privacy protections for U.S. citizens. Because if they do that, it means one basic thing: that they can’t target U.S. citizens inside the country. They cannot just go in and target them because they’re doing something they don’t like. If their attributes are all encrypted and they’re protected, you can’t tell who you’re looking at, and so, therefore, you can’t go into your databases and pull out material about them. So that makes it—basically makes it impossible to target individual U.S. citizens within this country, unless you build probable cause and get a decrypt. Then you can do that.

JUAN GONZÁLEZ: And, William Binney, you’ve had—you had contact with some members of the intelligence committees of the House and Senate. Why do you think there is such reluctance, except for a few individuals, to actually challenge this out-of-control trend of the government to continually intercept and view what Americans are doing?

WILLIAM BINNEY: Well, I don’t believe those committees or anybody in Congress really understands that it’s possible to detect terrorist activities or illegal activity even when you protect the identities of U.S. citizens. You can still build probable cause by looking at the unique activity of uniquely encrypted attributes. That will tell you or give you an idea of what they’re up to or all about, and then you could build probable cause and take it to a court to get a decrypt of that information and then target them. I don’t believe they understand that you can still do that, even if it’s encrypted.

AMY GOODMAN: I want to go to a clip of National Security Agency whistleblower Thomas Drake. He worked for the NSA for nearly seven years before blowing the whistle. Thomas Drake appeared on Democracy Now! in March.

THOMAS DRAKE: The critical thing that I discovered was not just the massive fraud, waste and abuse, but also the fact that NSA had chosen to ignore a 23-year legal regime, which had been established in 1978, called the Foreign Intelligence Surveillance Act, with a Foreign Intelligence Surveillance Court, and which, at NSA, during the time that I was not only at NSA but also in the military flying on RC-135s overseas during the latter part of the Cold War, it was a contract, the one thing you did not do. It was the prime directive of NSA. It was the—the—First Amendment at NSA, which is, you do not spy on Americans—

AMY GOODMAN: And what did you find?

THOMAS DRAKE: —without a warrant. I found, much to my horror, that they had tossed out that legal regime, that it was the excuse of 9/11, which I was told was: exigent conditions now prevailed, we essentially can do anything. We opened up Pandora’s box. We’re going to turn the United States of America into the equivalent of a foreign nation for the purpose of a—of dragnet, blanket electronic surveillance.

AMY GOODMAN: That was NSA whistleblower Thomas Drake on Democracy Now! in March. He was prosecuted by the Obama administration after challenging mismanagement, waste and possible constitutional violations at the National Security Agency. Ultimately, they had to drop all the charges. He pled guilty to a lower charge under enormous pressure. William Binney, you’re one of these—one of the whistleblowers of this group, smaller group of whistleblowers, who has not been charged. Your response to what he’s saying?

WILLIAM BINNEY: Well, I mean, that’s—what he said was one of the primary reasons I left NSA. I mean, we were collecting data on virtually every U.S. citizen in the country. And so, I couldn’t—I couldn’t participate in that. I couldn’t be an accessory to subversion of the Constitution and subverting the constitutional rights of every U.S. citizen. So I had to go. And that’s the reason I left. But like I say, I left a system, that they used that system that I built to target U.S. citizens. But when I left it there, I had built in protections, but it meant that, for them, they could not use my system that way and target U.S. citizens, so they had to remove the protections to make that possible. That’s why I say Congress needs to build in those protections. If they do, then they cannot just randomly target anyone, any U.S. citizen they want.

JUAN GONZÁLEZ: Well, one of the leading critics of the growing surveillance state has been Oregon Democratic Senator Ron Wyden.

WILLIAM BINNEY: Yes.

JUAN GONZÁLEZ: In May of last year, he accused the Obama administration of relying on a secret law to expand domestic surveillance. He’s now opposing the renewal of the FISA amendments and the Cyber Information Sharing and Protection Act. On Monday, he explained his opposition to CISPA.

SEN. RON WYDEN: As an attempt to protect our networks from real cyber threats, CISPA is an example of what not to do. CISPA repeals important provisions of existing electronic surveillance law that have been on the books for years, without instituting corresponding privacy, confidentiality and civil liberties safeguards. It creates uncertainty in place of trust. It erodes statutory and constitutional civil rights protections. And it creates a surveillance regime in place of a targeted, nimble cyber security program that is needed to truly protect our nation.

JUAN GONZÁLEZ: Michelle Richardson, legislative counsel for the ACLU, your response on the issue of CISPA?

MICHELLE RICHARDSON: Well, Senator Ron Wyden is right. CISPA is an absolute privacy disaster. We were very disappointed that it passed through the House a few weeks ago. But we were heartened that so many people voted no. A hundred and sixty-eight people voted no, including 28 Republicans. Very important members, like Adam Schiff and Anna Eshoo, who have intelligence cred and experience in the technology field, said that it just went too far and allowed the government too much spying authority and too little accountability for those programs.

So, now the question is, what will the Senate do? And I think it’s safe to say that it’s unlikely that CISPA itself will come up in the Senate. And right now, staff is feverishly working to come up with some sort of alternative and find something that can pass that 60-vote threshold to come to the floor. And the privacy issues are in play. We are actually optimistic that a better bill will emerge over there, because of the work like by members of Wyden, but also Mr. Franken and Mr. Durbin, and hopefully we’ll keep moving in the right direction on cyber security. It’s going to be a big summer for surveillance. Between big votes on cyber security and FISA, these members are going to be making some very serious Fourth Amendment decisions in the months to come.

AMY GOODMAN: Michelle Richardson, I want to thank you very much for being with us, legislative counsel for the American Civil Liberties Union, and William Binney, served in the NSA for nearly 40 years, including time as technical director of the NSA’s World Geopolitical and Military Analysis Reporting Group. He retired soon after the September 11th attacks. He retired in October, warning the NSA’s data mining program is becoming so vast it could create an Orwellian state.

This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, we go to the streets of Cairo. Egypt is voting for president. Stay with us.

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