Senate Insider Speaks Out: Ex-Wyden Staffer on Secret Laws, Domestic Spying and Obama’s NSA Reforms

Democracy Now*

Jennifer Hoelzer

HAVANA TIMES – As President Obama proposed a series of changes to reform the government’s surveillance policies and programs, we speak to Jennifer Hoelzer, the former deputy chief of staff for Democratic Senator Ron Wyden, a longtime critic of the Obama administration for using a secret interpretation of the USA PATRIOT Act to allow the NSA to conduct domestic surveillance.

“Unfortunately Edward Snowden was the only means by which we have been able to have this debate,” Hoelzer says. “We, working for Senator Wyden, did everything to try to encourage the administration to bring these facts to light. We’re not talking about sources and methods, we’re not talking about sensitive materials, we’re talking about what they believed the law allows them to do.”

Meanwhile, The Guardian newspaper has revealed the National Security Agency has a secret backdoor into its vast databases to search for email and phone calls of U.S. citizens without a warrant. According to documents leaked by Edward Snowden, NSA operatives can hunt for individual Americans’ communications using their name or other identifying information.

AMY GOODMAN: The Guardian newspaper has revealed the National Security Agency has a secret backdoor into its vast databases to search for email and phone calls of U.S. citizens without a warrant. According to documents leaked by Edward Snowden, NSA operatives can hunt for individual Americans’ communications using their name or other identifying information. The Guardian published the article on Friday just hours before President Obama held a news conference about the NSA. While Obama repeatedly defended the NSA’s surveillance operations, he outlined four proposals for reforming the programs.

PRESIDENT BARACK OBAMA: I will work with Congress to pursue appropriate reforms to Section 215 of the PATRIOT Act, the program that collects telephone records. As I’ve said, this program is an important tool in our effort to disrupt terrorist plots, and it does not allow the government to listen to any phone calls without a warrant. But given the scale of this program, I understand the concerns of those who would worry that it could be subject to abuse. So after having a dialogue with members of Congress and civil libertarians, I believe that there are steps we can take to give the American people additional confidence that there are additional safeguards against abuse. For instance, we can take steps to put in place greater oversight, greater transparency, and constraints on the use of this authority. So I look forward to working with Congress to meet those objectives.

Second, I will work with Congress to improve the public’s confidence in the oversight conducted by the Foreign Intelligence Surveillance Court, known as the FISC. The FISC was created by Congress to provide judicial review of certain intelligence activities so that a federal judge must find that our actions are consistent with the Constitution. However, to build greater confidence, I think we should consider some additional changes to the FISC. One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story, may tilt it too far in favor of security, may not pay enough attention to liberty. And while I’ve got confidence in the court and I think they’ve done a fine job, I think we can provide greater assurances that the court is looking at these issues from both perspectives—security and privacy. So, specifically, we can take steps to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government’s position is challenged by an adversary.

Number three, we can and must be more transparent. So I’ve directed the intelligence community to make public as much information about these programs as possible. We’ve already declassified unprecedented information about the NSA, but we can go further. So, at my direction, the Department of Justice will make public the legal rationale for the government’s collection activities under Section 215 of the PATRIOT Act. The NSA is taking steps to put in place a full-time civil liberties and privacy officer, and released information that details its mission, authorities and oversight. And, finally, the intelligence community is creating a website that will serve as a hub for further transparency. And this will give Americans and the world the ability to learn more about what our intelligence communities does and what it doesn’t do, how it carries out its mission, and why it does so.

Fourth, reforming a high-level group of outside experts to review our entire intelligence and communications technologies. We need new thinking for a new era. We now have to unravel terrorist plots by finding a needle in a haystack of global telecommunications, and meanwhile technology has given governments, including our own, unprecedented capability to monitor communications.

AMY GOODMAN: President Obama, speaking at his news conference on Friday. To discuss his remarks and the NSA leaks, we go to Los Angeles to speak with Jennifer Hoelzer, who served as deputy chief of staff for Democratic Senator Ron Wyden, one of the Senate’s leading critics of the NSA. Jennifer Hoelzer went to school at the U.S. Naval Academy and spent two years interning for the National Security Council. The website Techdirt has just published a piece of hers entitled “Insider’s View of the Administration’s Response to NSA Surveillance Leaks.”

Jennifer Hoelzer, welcome to Democracy Now! Your response to what President Obama has just outlined around changes to NSA surveillance?

JENNIFER HOELZER: If I had heard this speech five years ago, I would be standing up and applauding. I think he says a lot of terrific things, and it’s definitely a step in the right direction. My concern is that over the past five years his actions have painted a much different picture. And it’s—we need a little bit more than rhetoric here and vague promises about transparency. And I think it’s encouraging that we’re moving in this direction, but I’d like to see more.

AMY GOODMAN: President Obama said in his news conference—he talked about Edward Snowden. This is what he had to say.

PRESIDENT BARACK OBAMA: No, I don’t think Mr. Snowden was a patriot. As I said in my opening remarks, I called for a thorough review of our surveillance operations before Mr. Snowden made these leaks. My preference—and I think the American people’s preference—would have been for a lawful, orderly examination of these laws, a thoughtful, fact-based debate, that would then lead us to a better place, because I never made claims that all the surveillance technologies that have developed since the time some of these laws had been put in place somehow didn’t require potentially some additional reforms. That’s exactly what I called for.

So, the fact is, is that Mr. Snowden has been charged with three felonies. If, in fact, he believes that what he did was right, then, like every American citizen, he can come here, appear before the court with a lawyer and make his case. If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order, well before Mr. Snowden leaked this information, that provided whistleblower protection to the intelligence community, for the first time. So there were other avenues available for somebody who’s conscience was stirred and thought that they needed to question government actions.

AMY GOODMAN: That is President Obama at his news conference on Friday. Jennifer Hoelzer, your response?

JENNIFER HOELZER: It’s very hard to hear that, to be honest. To know a little bit about me, I worked for Senator Ron Wyden for six years. And Senator Wyden, his conscience did move him to try to speak up about these things and try to draw attention and try to start a debate, and, quite frankly, there were no other avenues to bring this information to light. When the president tries to make it sound like, you know, he was already moving us in this direction, he had five years to do that. And I—you know, we—you could see on Senator Wyden’s website—I think we put up a timeline, you know, because our frustration of how many times we asked the administration to declassify information so that we could have a public debate on these issues, where we asked him to slow down because Congress didn’t know what it was voting on and didn’t know what the authorities the administration was claiming to have. And, you know, I think, as somebody who I’m fairly confident, you know, having worked for him—and keep in mind, I was his deputy chief of staff, and he couldn’t even tell me, you know, what programs he was attempting to conduct oversight over—that there was no way. I think we left no stone unturned to try to bring these issues to light.

Obviously, I’m concerned, you know, as is the president, the only way we seem to be able to have this debate was through an unauthorized disclosure. Our national security policy should be such that there is a respect for classification procedures and that, you know, whistleblowers don’t feel a need to come forward with this information. I share his concern. It would have been much, much better had we been able to have this debate and under more rational circumstances, with facts coming out on both sides. But the fact of the matter is, the president of the United States had five years to make that happen, and he didn’t. And I find that concerning. And I’m glad he’s coming to the table now, and I think—hope he’s sincere, and I hope he puts the muscle behind this that he claims to be doing. But I think his track record thus far does not show a personal commitment from him or many members of his administration to make that happen.

AMY GOODMAN: So, you think this is all happening because of Edward Snowden now?

JENNIFER HOELZER: I mean, yeah, I think it is happening because this information was brought to light. And, you know, it’s—I was talking to a former colleague last night about this, that for many years, you know, we tried to have a debate on these issues. And there’s a very different—when the public does not know what’s happening, when the public gets all theoretical arguments, one, you know, reporters don’t cover theoretical arguments. I mean, there’s a lot of theories. They cover facts. And the American people grapple on the facts, and that’s when they start calling their members of Congress, and that’s when we have a debate. And no facts were being brought to light. And we, working for Senator Wyden, did everything to try to encourage the administration to bring these facts to light. You know, we’re not talking about sources and methods. We’re not talking about, you know, sensitive materials. We’re talking about what they believed the law allows them to do. And that’s up to the American people to have an ability to, you know approve, say yes or no, this is what we want the government to be doing. And they didn’t give them that chance. And, unfortunately, Edward Snowden, you know, was the only means by which we’ve been able to have that chance and this debate.

AMY GOODMAN: Let’s go to your former boss, to Democratic Senator Ron Wyden. In 2011, he warned about how the government was interpreting its surveillance powers under Section 215 of the PATRIOT Act.

SEN. RON WYDEN: When the American people find out how their government has secretly interpreted the PATRIOT Act, they are going to be stunned, and they are going to be angry. And they’re going to ask senators, “Did you know what this law actually permits? Why didn’t you know before you voted on it?” The fact is, 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 were two PATRIOT Acts, and many members of Congress have not read the one that matters. Our constituents, of course, are totally in the dark. Members of the public have no access to the secret legal interpretations, so they have no idea what their government believes the law actually means.

AMY GOODMAN: That’s Senator Ron Wyden in 2011. Jennifer Hoelzer, in your piece in Techdirt, you quote President Obama saying, “What makes us different from other countries is not simply our ability to secure our nation. It’s the way we do it, with open debate and democratic process.” So, if you could go—I mean, I thought what was so amazing about your piece on Techdirt is how you described how you were able to talk—or not talk—about these issues, when President Obama’s talking about “we do it with open debate and democratic process.”

JENNIFER HOELZER: Yes. I mean, that’s what—that piece that I wrote, you know, I think if I had stepped back, I might have, you know, pulled back a little bit. I was quite angry when I read that remark, because, again, I spent close to a thousand hours of my life trying to draw attention and trying to push for exactly that, a public debate on these issues, on what the administration believes a unclassified law, that you or I or anyone else can read, says and allows them to do. You know, Congress writes these laws, and then Congress needs to know how these laws are being interpreted. Are they being interpreted the way Congress intended to be interpreted? And in this case, I mean, I still haven’t seen—

AMY GOODMAN: So, Jennifer, give us the—give us the example.

JENNIFER HOELZER: —the legal interpretation here.

AMY GOODMAN: Give us the example, Jennifer.

JENNIFER HOELZER: I mean, everything else has come to light, and that’s the one thing that hasn’t, although I believe the president has committed to, you know, unclassifying that. But, you know, it’s—it’s, I believe, a misuse of the classification systems to classify things that could be embarrassing or politically embarrassing or inconvenient, or, you know, just a legal interpretation that, yes, it’s—and I think that’s where we need actual classification reform, so that we are classifying national secrets, not information that might be embarrassing or might lead to a debate that could take away authorities that they think they should have.

AMY GOODMAN: Jennifer, you write, “It seems to me”—you’re talking—you’re addressing President Obama—”your Administration was really committed”—”that if your Administration was really committed those things, your Administration wouldn’t have blocked every effort to have an open debate on these issues each time the laws [that] your Administration claims authorizes these programs came up for reauthorization, which—correct me if I am wrong—is when the democratic process recommends as the ideal time for these debates.” And then you give examples, like in June 2009, six months before Congress would have had to reauthorize PATRIOT Act 215. Explain.

JENNIFER HOELZER: Exactly. Well, it is. I mean, these laws, the PATRIOT Act and then the FISA Amendments Act, they were both passed with sunset provisions. And the idea of that is that these are controversial provisions that are going into new areas of law and that Congress wants to revisit those laws, you know, a few years later to see how they’re working, to make sure—do we need to fine-tune it? Do we need to take powers away, add powers? I mean, it’s supposed to be a review process. And in each of these cases, when the PATRIOT Act did come up for reauthorization, first in 2009 and then again in 2011, there was no ability to have that debate.

Senator Wyden did—right when President Obama became into office, I think they—and I don’t know the full extent of my boss’s work on this, because, again, he did it in a classified setting, but there was a number of letters, there was a number of conversations, trying to—you know, assuming that the president, who—let’s not forget, he came into office promising a new era of transparency, that he, as a senator, was opposed to many of these programs in theory and in practice. And so, I think they assumed that he would be moving in a different direction. And when he didn’t do that—I believe it was November of 2009—both the senator and his Intelligence Committee staffer, you know, came to me, and I sat down, and said, “We need to start drawing attention to these issues.” And it was a very difficult conversation, as it was for the following four years, in which, you know, they’re trying to tell me that we need to draw attention to things that they couldn’t, you know, give me details or even tell me what they were trying to get me to draw attention to.

But at that point, you know, right before they were about to vote, they stressed that members of Congress were going to vote on something that they didn’t know the full extent of. And so, that’s when we, you know, in an unclassified way, started coming forward and saying—you know, trying to put public pressure on the administration to declassify this information. But they didn’t do it then. They didn’t do it in unclassified setting. They didn’t do it when it was brought to their attention in 2009, and they didn’t do it again in 2011. And they didn’t do it, you know, a few months ago, when Senator Wyden, in a hearing, actually asked the director of national intelligence a direct question: You know, was he collecting—was the National Security Agency collecting data on millions, if not hundreds of millions, of Americans? And, you know, he chose to lie in answer to that question. And the president didn’t, you know, speak up to correct him then so we could have a public debate with the facts that he believes are important. And it’s troubling, in my mind, that we tried everything we could, and there was no give on that side.

AMY GOODMAN: General Hayden’s characterizations about the people who are critical and want more information? You write about this in your piece.

JENNIFER HOELZER: Mm-hmm, yes. I think, you know, what I find most troubling—and it’s hard, because I know members of Congress aren’t in a position often to do what I’m doing right now, which is to say, you know, look, this—our national security policy, there’s something troubling here. I think, since September 11, there has been this push in this country that the debate around national security has been: Who can sound the toughest on national security policy? You know, the only way to be tough on national security policy is to demonstrate a willingness to go to extreme measures. Well, how often in life is the extreme, the most extreme approach, the smartest and the best way to handle any situation? I mean, oftentimes it creates more problems than it solves. But we have this political debate that it’s about who can sound more extreme, who can sound more tough. Well, I don’t want us to sound tough; I want us to be smart.

And I think that’s the problem, is when, you know, folks like General Hayden step in and you question them, they get offended, and they talk about their patriotism. They talk about national security and how they’re willing to do whatever it takes to keep this country safe. And I am, too. I just sometimes think that it’s important to step back and evaluate that. And that’s, honestly, you know, what oversight is about. It’s about taking a step back from some of these programs and asking ourselves, “Is this working as well as it should be? Is this the best approach to the situation? Are we making things worse?”

You know, I want to keep Americans safe, and I want to do it in the smartest and the best way possible. And I don’t think a lot of, you know, trumped-up machismo is the way to do it. And I think it does—it lends to a situation where folks like me and Senator Wyden and, you know, a lot of passionate people out there and in, you know, many of these communities who are expressing concerns, I think the response often is that they don’t care about national security. And it is. I have increasingly been troubled that, you know, the response that you get from some in those communities—and these are patriotic Americans who go to work every day to try to keep Americans safe—I don’t doubt that. But I’m troubled that the response to those who are expressing concerns is to treat them, in some sense, like they’re a threat equal to al-Qaeda. And, well, I mean—

AMY GOODMAN: Well, as you directly quoted—

JENNIFER HOELZER: —they’re part of this country that we all love. And we [inaudible]—

AMY GOODMAN: As you directly quoted, Jennifer—

JENNIFER HOELZER: —American people, yeah.

AMY GOODMAN: Jennifer, as you directly quoted the NSA director, you said—who called the critics “‘nihilists, anarchists, activists, Lulzsec, Anonymous, twenty-somethings who haven’t talked to the opposite sex in five or six years,’ he equates transparency groups like the ACLU with al Qaeda.” Jennifer Hoelzer, I want to thank you very much for being with us, former deputy chief of staff for Democratic Senator Ron Wyden of Oregon. Her piece in Techdirt is headlined “Insider’s View of the Administration’s Response to NSA Surveillance Leaks.” We will link to it at

When we come back, well, the Obama administration, President Obama, will award Bayard Rustin the Presidential Medal of Freedom. We’ll talk about just who he was, as we move in on the 50th anniversary of the March on Washington, which he organized. Stay with us.

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