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Two years later, Senator’s criticism of NSA spying sinks in (arstechnica.com)
127 points by eksith on July 31, 2013 | hide | past | web | favorite | 23 comments



If people want to follow this story, it is imperative for you to follow Wyden and Udall, and to fully understand the powers of the Senate Intelligence Committee. The Senate Intelligence Committee was set up in the 70s as a way to reign in the powers of the Executive Branch, after the abuses that came light from the Nixon Administration. (Historically, look up the Church Committee for details on that. There's a lot of history here).

The Senate Intelligence Committee is cleared, has access to all Top Secret data, and is basically the watchdog of the Intelligence Community. There are only 15 members on the Committee (8 from the majority party, 7 from the minority party), so Wyden and Udall consist of 15% of the voting power in there. Every single bill that affects the intelligence community has to pass through the Senate Intelligence Committee before it moves to the rest of Congress.

Wyden's biggest criticism of the intelligence community is the innate reluctance to declassify data. There is a very strong "overclassification" culture in agencies, and its at the point where it sniffles debate on this subject. It would do people good to read up on Wyden's proposals, and to work with him in the Senate.

He's the "inside man", he's got a TS clearance... he has the power to investigate the Intelligence Community. (But not leak information, he has to speak on vague terms of course, because what he talks about is TS information). And he's been stating his position for years on this subject. If you want to rally behind someone, its Wyden and Udall. Furthermore, as a Senator on the Intelligence Committee, he has the power to kill and modify bills before they even reach debate.


What do you mean by him not leaking information. Article 1 section 6 of the constitution gives Congressmen immunity for anything they say in the House. Gravel v. United States (The Pentagon Papers) established that this immunity applies to leaking classified information.

Admittedly, using this immunity would require him to officially leak it under his own name, which likely comes at a significant political cost (could it get him kicked of the Intelligence Committee?), but legally he is protected.

EDIT: I am aware that him leaking would come at a significant cost and probably get him kicked off the committee. My point is that he does have the power to leak, and may decide that the change he can effect by leaking outways the change he can effect by staying on the committee.


And if Wyden an Udall fall out of the Senate Intelligence Committee, who will keep tabs on the Intelligence Community after that?

13 of the 15 members of the Senate Intelligence Committee were cool with everything revealed, and are currently defending it. Only Wyden and Udall have been critical to these programs. Politically speaking, everyone on the Senate Intelligence Committee are consistent with what they believe in.


The Constitution also protects US citizens from execution without trial. And yet, http://en.wikipedia.org/wiki/Anwar_al-Awlaki


The constitution grants US citizens "due process." That does not necessarily mean a trial. If that's what it meant, that's what it would say. The urge to treat the requirement as a bright line requirement for a trial, regardless of context, goes against the plain text of the constitution. "Due" is inherently a context-sensitive word.

The question is: what process is "due" (literally, warranted or owed) to someone who wages war against the US from lawless regions of Yemen, evading capture for years? Its not an indefensible position to say "wild west" rules apply in that situation.


As much as I appreciate your opinion, I think we all can agree that turning this into an Anwar Al-Awlaki debate is not going to be beneficial for this topic at all.

I agree with you... but line of argument is going to open a can of worms I'd rather not see opened in this debate. This topic should be focused on the Senate Intelligence Committee.


The problem is that this sort of reasoning poisons every topic. The reason for bringing up Al Awlaki is basically to say: "if the US government is murdering Americans in cold blood, what wont't they do?" And at that point debate is pointless. Okay, the rule of law is dead, let's move to Canada before we get drone striked for speaking ill of Obama.


Indeed, but you aren't going to convince ceejayoz on this matter. It isn't ceejayoz who you want to win over in this fight either, if he's already lost faith in the rule of law, then it is pointless to try and convince him to do something productive with the rule of law.

Do you want to get work done? Do you want to see legal change in America? Well, the way to step forward has already presented itself. Lets work forward, instead of focusing on tangential issues. I've pointed out the Senators who to support, and I've introduced the basic lay of the political field.

Focusing on literally dead-horse issues like Anwar Al-Awlaki will hamper progress. There is a single, clear, resounding message that can be brought to light here. Champion Wyden and Udall and amplify their message.

PS: Wyden and Udall have been critical of the Drones program as well.


"Focusing on literally dead-horse issues like Anwar Al-Awlaki will hamper progress."

The "literally" there - and the stressing of it - is rhetoric not argument. If Obama started assassinating anyone who disagreed, they'd be literally dead too, but addressing it would be a priority...


And what of the Constitution's rights to a trial and to confront your accuser?


First, the Confrontation Clause isn't a shield meant to provide blanket protection from the use of force prior to a full trial. If it was, the police wouldn't be able to use force --- ever --- to deal with violent crimes in progress.

Second, Al-Awlaki (I assume this is who we're talking about) wasn't executed; he was assassinated. His killing was extrajudicial, a military action and not a law enforcement action. If that's disquieting to you, join the club, and consider whether the problem once again stems to the fact that the USG formally declared war on an organization rather than a state for the first time in its history.

Also worth knowing: Al-Awlaki's killing wasn't unprecedented. US citizens, believed (probably correctly) to be aiding and fighting alongside the Axis powers, were targeted and killed during World War II by US troops.


The clause in question: http://en.wikipedia.org/wiki/Speech_or_Debate_Clause

"...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

Leaking classified information is a felony, and may also be construed as treason. Sounds to me like he has no immunity at all. I'm not a lawyer or Supreme Court justice, however.


I'm not sure why whoever did it decided "They shall" should become "...shall"... but there's two complete and mostly separate ideas here, separated by a semicolon.

1) They shall in [most Cases] be privileged from Arrest during their attendance at the Session of their respective Houses, and in going to and from the same;

This obviously doesn't apply here because of the bit you highlighted, and because they probably don't care that much about not being arrested only while Congress is in session...

2) [F]or any Speech or Debate in either House they shall not be questioned in any other Place.

Which is the bit that seems to quite clearly forbid punishing them for what they say on the floor.

While semicolons are sometimes used to separate items of a list, in this case the grammer wouldn't work at all if you try to do that - "They shall in all Cases, [...] for any Speech or Debate in either House, they shall not be questioned in any other Place". The repetition of "They shall" in particular seems glaring. I'm wishing I remembered my linguistics well enough to pin it down in more precise terms, but hopefully it's clear...

My understanding is that this was explicitly used by a Senator in releasing the Pentagon Papers, so it's not merely theoretical grammar nazism, either.


maybe he thinks he could be more useful trying to fix the problem at its root rather than just treat one of the symptoms?


What would it take to get Senator Paul on a committee like this?


Some extra information for context:

Here's something I learned in the last week I didn't know: the Senate Intelligence Committee that Wyden sits on has explicit authority to de-classify anything it sees fit. All it takes is a majority vote.

Not sure if that's ever happened, or if any senator on the committee has asked the committee to even vote on declassification. Now might be a good time to start asking those questions.

Also, as much as the committee is supposed to have access to everything that is classified, in practice this is not the case, there have been a few cases where information was only shared from the Executive to the leaders of the majority party in each legislative body. I believe (but this is wild speculation) that there have also been cases where individual senators have asked for material and have been rejected. It's not as if each senator can go and look at whatever they want.

What's been happening in practice is that these committees are a sieve; information gets out via political leaks. So there's a big trust problem between the intelligence agencies and the legislature.

Finally, as much as "National Security" is trotted out as a reason not for elected representatives to talk to the people, constitutionally I'm not so sure that the executive can bind the legislature not to talk in any way it sees fit. What's the president going to do? Start arresting and imprisoning senators? Not happening. Another case where somebody, anybody just needs to stand up and do their job.

So there's the way things are constructed to appear, and there's the way things actually work. It's good to know both.


"[C]onstitutionally I'm not so sure that the executive can bind the legislature not to talk in any way it sees fit."

Constitutionally, the executive pretty explicitly can't bind the legislature with regard to what is said on the floor: http://en.wikipedia.org/wiki/Speech_or_Debate_Clause`


"...shall in all Cases, except Treason, Felony, and Breach of the Peace,..."

Leaking classified documents is a felony, and potentially could be construed as treason. Since the executive decides what is or isn't classified, it looks to me like they clearly can restrict the speech of legislators, regardless of time or place.

Unless, as was alluded to elsewhere, the Senate Intelligence Committee votes to declassify those specific topics first.


Read it again. That clause does not apply to the relevant portion:

"...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

Facing such charges, they would not "be privileged from Arrest during their attendance at the Session of their Respective House", but charging them with a crime seems quite clearly to be "questioning" them for "Speech [...] in either House" when that crime entailed nothing but disclosure of information in the record of the respective body.


"Here's something I learned in the last week I didn't know: the Senate Intelligence Committee that Wyden sits on has explicit authority to de-classify anything it sees fit. All it takes is a majority vote."

Source?


"...But the classification barrier may not be as watertight as committee members make it out to be. Senate Resolution 400, which established the intelligence committee in 1976, has a section specifically devoted to committee oversight of the classification system, which is directed by the executive branch. If a member of the committee feels that classified information is of valid public interest, he or she can ask that it be declassified.

“The Select Committee may, subject to provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such a disclosure,” the resolution reads..."

http://www.mcclatchydc.com/2013/07/30/198097/for-congress-it...


Gracias.


Ron Wyden is awesome. I'm so proud he represents my state. If you look at his record you'll see he's taken a hard stance on a lot of crucial national issues, even if he was standing alone at the time.




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