Wyden Calls on Colleagues to Oppose Gen. Rudd to Lead NSA

Wyden Calls on Colleagues to Oppose Gen. Rudd to Lead NSA

Rudd lacks "familiarity with basic constitutional rights" on surveillance of Americans

Watch a video of Wyden deliver his remarks here

As prepared for delivery

I rise to speak in opposition to the nomination of Joshua Rudd to be Director of the National Security Agency.

During his confirmation hearing, General Rudd demonstrated a lack of familiarity with basic constitutional rights, which should be a bare minimum qualification for this extremely powerful position. His responses to questions about privacy and transparency were simply unacceptable. I asked the nominee if he would pledge to not secretly violate existing public guardrails on NSA surveillance, and he refused.

Few Americans understand the incredible scope of NSA's surveillance operations or the broad authorities under which the NSA operates. The agency plays a central role in conducting surveillance under the Foreign Intelligence Surveillance Act. FISA gets all the attention from the American public and from Congress because it's a public law and because Congress debates the reauthorization of FISA Section 702 every few years. But the NSA also conducts extensive intelligence and surveillance operations outside of the Foreign Intelligence Surveillance Act and pursuant only to Executive Order 12333. And when NSA operates entirely under that executive order, there is no judicial oversight, not even from the secret FISA Court. And congressional oversight is often dependent on what the executive branch wants to disclose. The potential for abuse is enormous. I was here in 2005, when the New York Times revealed that the NSA had conducted an illegal warrantless wiretapping program. For four years, the program had been hidden from the American people. It was also hidden from Congress. I was a member of the Senate Intelligence Committee then, as I am now, and even we were not told about the program.

This was one of those infamous "Gang of 8" situations where the Intelligence Community informs only the Committee's two leaders and instructs them not to tell other members or staff. So when the Committee's Vice Chair, Jay Rockefeller, was told about the program, he hand-wrote a letter to Vice President Cheney saying he had concerns but that, on his own, he couldn't fully evaluate the program. And so the program continued on for years, with no oversight and no opportunity for Congress to address it through legislation. This history demonstrates what happens when the NSA's enormous capabilities are abused by administration officials who are willing to break the law. And, unfortunately, that is an accurate description of this Administration.

It is indisputable that constitutional rights are under attack right now. For example, we only recently learned that, nine months ago, the Administration secretly decided that the government doesn't need a judicial warrant to break into a private home.

In other words, this Administration thinks it can just ignore the Fourth Amendment. And, if the Administration will ignore the Fourth Amendment to break down doors, what assurance could we possibly have that they won't also tap Americans' phones without a warrant? And why should we believe that they wouldn't do it secretly, hidden from the American people, from the full Congress, or even the full intelligence committees?

When it comes to surveillance, I subscribe to Ben Franklin's principle that those who would give up liberty for security will lose both and deserve neither. We need both. That's not a partisan proposition. Refusing to promise to not violate the Constitution does not make us safer.

That is why I was particularly focused on General Rudd's understanding of the constitutional limitations on the NSA's operations. So I asked General Rudd whether, if he were directed to target people in the United States for surveillance, he would insist that there be a judicial warrant. I told him in advance that I was going to ask the question. Then, at the hearing, I offered him the opportunity to answer with a yes or a no. I didn't get an answer.

So I tried to cut him some slack and encouraged him to just offer general thoughts on the matter, but I still got nothing of substance. I did everything in my power to allow him to demonstrate some understanding of the basic guardrails of NSA's authorities and got only vague assurances that he was interested in following the law.

Given the history of NSA abuses, and this administration's clear contempt for the Constitution, General Rudd's inability to answer this question in any meaningful way would have been enough for me to oppose his nomination.

But there were other topics on which General Rudd's responses were troubling. He wouldn't associate himself with the NSA's previous commitment to not buy and use Americans' location data. Then-NSA Director Nakasone made this commitment in a public letter in 2023. But General Rudd would not stand by that public policy.

Location data, which is bought and sold by sleazy data brokers, can reveal extremely sensitive private information about Americans, including what medical clinics they go to, what houses of worship they visit, what stores they shop at, what protests they attend, and which friends and family they are seeing.

The threat to Americans' privacy is even more serious when you stop to consider how artificial intelligence can be used against enormous amounts of commercially available data, including location information on Americans. So it is deeply troubling that General Rudd refused to endorse the NSA's past commitment not to collect and use all this sensitive data on Americans. General Rudd also refused to say whether the government should mandate backdoors into encryption used by Americans. Encryption is the code that protects your messages, pictures and private data from predators and criminals.

For years, officials have argued that the government should force tech companies to build back-doors into their encryption products. But if you talk to security researchers, or cryptographers, they'll tell you there's no way to create encryption backdoors that only the government can use. Once you weaken encryption, it is inevitable that foreign spies and criminals will exploit that vulnerability. As hacking has gotten more and more sophisticated, the threat that our adversaries will use any and all cyber vulnerabilities against us has gotten more and more obvious.

In fact, the constant headlines about successful hacking campaigns are probably the reason why we're not hearing as much these days about weakening encryption. So this question for General Rudd should have been easy, particularly since the job to which he is nominated includes responsibility for the nation's cyber security. But, again, he refused to take a position. General Rudd's responses related to transparency were especially troubling. In addition to laws and the Constitution, NSA is bound by numerous policies and procedures which are publicly available. These public policies and procedures are especially important because they provide some guardrails on NSA's surveillance and intelligence activities under Executive Order 12333, which, again, are not governed by FISA and not reviewed by the FISA Court.

To take just one example, if the NSA is going to conduct a search of its 12333 collection for an American's communications, it generally needs the Attorney General to determine that there is probable cause that the American is an agent of a foreign power.

This is not a law. It is a policy that has been made public by successive administrations so that Americans could better understand the guardrails that apply to the NSA's surveillance activities. The NSA is supposed to be hunting for terrorists and spies. It is not supposed to be hunting for Americans who simply do things that the president doesn't like, such as criticizing their government or buying abortion medication online.

So I asked General Rudd what I thought was another easy question: If he were directed to operate in violation of those public policies and procedures, would he inform the American people? He refused to make that commitment. I also asked him whether, if the administration secretly decided to withdraw or change any of these public policies, he would ensure that the public sees the new policies? He wouldn't make that commitment either.

Let me be clear. The operational details of the NSA's operations are sources and methods and must absolutely be protected. National security is at stake. Lives are at stake. But I did not ask General Rudd about sources and methods. I asked him whether Americans can rely on the NSA to conduct its operations within the guardrails that the government has already made public. Based on his response, it's not clear that they can. And when Americans can no longer trust whether intelligence agencies are respecting their own public policies, it's bad for Americans, bad for democracy, and bad for the intelligence agencies.

General Rudd was even asked whether, if the President secretly decided not to follow these public policies, would he at least immediately inform the Senate Intelligence Committee. General Rudd wouldn't even answer that question with a clear yes, which makes me wonder what abuses even the intelligence committee won't ever hear about

I have great respect for General Rudd's many years of military service, but, besides his troubling statements about constitutional rights, he is simply not qualified for this job. We are now in the second week of this catastrophic and reckless war that Donald Trump started. This war and its global fallout have created new and serious threats to U.S. national security. The country needs an NSA Director with experience in U.S. signals intelligence activities around the world. General Rudd does not have that experience.

The Director of NSA has another job, that of Commander of U.S. Cyber Command. The demands of this job are mind-boggling. The cyber threat to the United States cannot be overstated. And, as SALT TYPHOON demonstrated, our adversaries have succeeded in inflicting serious damage to U.S. national security. Just last week, the government acknowledged ongoing hacking of U.S. government agencies. And now we are at war and are facing an incredibly complex set of cyber threats and options.

The country needs someone who is prepared from day one to protect this country from cyber adversaries, including Iran as well as China and Russia.

The Commander of CYBERCOM needs to have a deep and sophisticated understanding of this threat and how it is evolving. He or she needs to be able to see this threat in its geopolitical context and to fully grasp the technical capabilities and the policy options that might help NSA and CYBERCOM counter the threat. We are at war, and we cannot afford to promote someone who lacks the experience for the job.

General Rudd's predecessors in this job had that experience. They came up through CYBERCOM. They were ready. General Rudd is not. And, when it comes to the cybersecurity of this country, there is no time for on-the-job learning. The threat is just too urgent for that.

For all these reasons, I oppose this nomination, and urge my colleagues to do the same.

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