Section 702 Debate Turns Hardball

Sen. Wyden Holds Up Promotion of New NSA Chief

​In January 2021, Sen. Ron Wyden (D-OR) released an unclassified memo from the Defense Intelligence Agency revealing it was purchasing, retaining, and using Americans’ location data. This flies in the face of Carpenter v. United States, a Supreme Court opinion requiring a warrant to examine Americans’ location history. Sen. Wyden next pressed the Department of Defense to identify which other agencies within the Department are buying Americans’ personal data, including location data and web browsing records.
 
The government answered with a “Controlled Unclassified Information” (CUI) response. Sen. Wyden took to the floor to call this “a made-up designation with no basis in law” to “keep this unclassified information from the American public.” A letter from Sen. Wyden to Defense Secretary Lloyd Austin asking him to clarify this extra-legal restriction resulted in a response letter from an underling declining to approve the release of the unclassified information.
 
Now Sen. Wyden has hit on a strategy that is sure to get the attention of the intelligence community. Sen. Wyden says that he has, with “reluctance,” held up the promotion of Lt. Gen. Timothy Haugh to the grade of general to serve as Director of the National Security Agency and Commander of the U.S. Cyber Command. Sen. Wyden will keep this hold in place until the government provides “yes” or “no” answers as to whether the NSA is buying Americans’ location data and web browsing records.
 
“The American people have a right to know whether the NSA is conducting warrantless domestic surveillance of Americans in a manner that circumvents the Fourth Amendment to the Constitution,” Sen. Wyden said.
 
We are grateful to the men and woman who work hard to keep us safe. But the time has come for champions of civil liberties to respond to hardball tactics with some of our own. If the intelligence community and its enablers on the Hill continue to act with disrespect, what is happening to Lt. Gen. Haugh could be done across the entire alphabet soup of federal intelligence agencies.