It is tempting to throw up our hands without choosing a hero this issue—right before clapping them loudly in celebration of all the heroes who do noble battle in this arena. The scope of the “privacy” topic is not unlike its substance. Vast, unwieldy, sprawling, and shadowy, it seems to lurk in every corner of our collective and individual lives. For that reason, choosing a single “hero” is a challenge. So many individuals and entities are working on such a wide variety of privacy problems that it seems unfair and almost arbitrary to single out one area or person.
But choose we must, and the senator we have chosen is as deserving as any and more than most. Oregon Democrat Ronald Lee “Ron” Wyden is leading the battle in Congress to balance civil liberties with national security needs. It is a balance he is frankly worried no longer exists. “I’ve come to feel in the last couple years that the constitutional teeter-totter is out of whack,” he said. He is often a lonely voice in opposition to measures seeking to bolster security at the expense of liberty.
His approach has been, first, to try to enlist others in the cause. Among other things, he offers classified briefings to fellow senators. Colorado Senator Mark Udall is one who has joined the fight. The two coauthored a forceful letter to Attorney General Eric Holder warning that a provision of the Patriot Act—allowing the government to seize anything relevant to an ongoing investigation without evidence—would give the government broad new powers subject to easy abuse. Americans would, these senators said, be horrified if they discovered the degree of surveillance authorized under the Patriot Act. Next, he has moved to block national security bills that appear to imperil civil liberties, with the goal of preventing a rush to approval of anything national-security related without consideration of the serious civil liberty concerns. For example, Senator Wyden’s efforts to block an extension of expiring surveillance provisions from a 2008 law meant the Senate had to set aside floor time to debate the bill and consider amendments, a move Senator Wyden welcomed. He placed a “hold” on the Senate’s reauthorization of the Foreign Intelligence Surveillance Act (FISA) court system (see Mitra Ebadolahi’s article on FISA in this issue) so he could try to learn more about how the executive branch is using its powers post-9/11. He has, in fact, effectively placed a hold on every major bill coming out of the Senate Intelligence Committee over the last couple of years.
It is a truism that governmental surveillance, absent vigilant oversight, is subject to abuse. For the moment, Senator Wyden—with support from some other senators, like Tom and Mark Udall—seems the lone governmental sentinel standing guard between the American people and just such abuse. In a speech on the Senate floor, he said: “Privacy should be the default not the exception” with national security wiretaps. With Americans already disillusioned by Congress—as reflected in abysmally low approval ratings, Senator Wyden posits that when the American people find out just how far “out of whack” is the security/liberty balance, “they are going to be really angry.”
As we go to press, the Obama administration has announced it will soon reveal more about the administration’s legal rationale for using drone strikes. Attorney General Eric Holder told members of the Senate Judiciary Committee that President Obama would address the issue directly “in a relatively short period of time.” Congress has been seeking access to memos produced by the Justice Department that lay out the legal rationale for drone strikes targeting individuals overseas. Strange Senator Wyden bedfellow Ron Paul recently focused on the drone issue in an old-fashioned filibuster on the nomination of John Brennan to head the CIA. Until now, only four members of Congress had been allowed access to the information regarding the administration’s policy on drone strikes. “I heard you. The president has heard,” Holder said, and as a result, the administration is prepared to make more materials available.