WATCH: Sen. Wyden Exposes NSA Nominee’s “Unfamiliarity with Basic Constitutional Rights”

​At a Senate Intelligence Committee hearing today (see 54:25), Sen. Ron Wyden (D-OR) probed Lt. Gen. Joshua Rudd – nominated to lead the National Security Agency – on whether he would obey the Fourth Amendment’s requirement for a probable cause warrant before surveilling the communications of American citizens in programs authorized by Section 702 of the Foreign Intelligence Surveillance Act.
 
That authority was enacted by Congress to enable the surveillance of foreign terrorists and spies on foreign soil. The National Security Agency’s trawl of global communications has since become a resource for U.S. intelligence agencies to routinely spy on the communications of American citizens and other “U.S. persons” on American soil.
 
Given that Congress is beginning to debate whether to continue the risk Section 702 poses to Americans’ privacy – with a vote on its reauthorization in April – you might think that Lt. Gen. Rudd would have a good grasp of the background on this issue, if not an actual opinion.
 
The hearing revealed that he has neither.
 
In response to Sen. Wyden’s questions, Lt. Gen. Rudd replied with non-answers. Worse, he admitted that he really didn’t understand the privacy issues at the heart of the looming Section 702 debate.
 
Sen. Wyden framed his questions with a quote from Benjamin Franklin, who wrote: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Sen. Wyden said that he sees “striking that balance” between safety and liberty as “essential.”
 
The senator then asked: “General, if you are directed to target people in the United States for surveillance, will you insist that there will be a judicial warrant?”
 
General Rudd replied: “What I can tell you, senator, is that if confirmed I will absolutely commit to executing the foreign intelligence mission of the NSA in accordance with the authorities it has been given and within all applicable laws.”
 
Sen. Wyden came back: “That is about as vague as anything I’ve heard on the subject. And it seems to me that unfamiliarity with basic constitutional rights is not something that can be accepted in this position. It’s so crucial. I continue to believe that what I described for you is not mutually exclusive. Smart policies give you security and liberty. Not so smart policies give you less of both.”
 
Sen. Wyden again asked whether Lt. Gen. Rudd could give us some insight into his thinking. Rudd gave another boilerplate non-answer answer.
 
Sen. Wyden asked: “Do you believe that U.S. person searches of Section 702 collection should require a warrant except in emergencies, which has been largely the position of those who would like to find some common ground as we go forward?”
 
General Rudd replied: “Senator that’s a topic I’d need to look into, and get a better understanding of, and give you a more fulsome and complete answer on that one.”
 
An informed officer might have turned the tables on the senator and noted that a warrant requirement is set to be debated and voted on by Congress in April. He could then have sat back and added, “I will execute whatever laws you, Senator Wyden, and your colleagues pass.”
 
But Lt. Gen. Rudd did not know to do that. Instead, he revealed he wasn’t even conversant with the issue. Not a good look at the hearing – and not very reassuring for the American people.

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