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Floor Speech

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Mr. WYDEN. Madam President, 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, and that ought to be a bare minimum qualification for this extraordinarily important post.

His response to questions about privacy and transparency were simply unacceptable. For example, I asked the nominee if he would pledge to not secretly violate existing public guardrails on the National Security Agency surveillance. He refused.

For Americans trying to understand the incredible scope of the National Security Agency surveillance operations and the broad authorities under which the NSA operates, these practices are essential. The Agency plays a central role in conducting surveillance under the Foreign Intelligence Surveillance Act. That law is known as FISA. It gets a lot of attention from the American people and from Congress because it is public law. The 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 they do it pursuant to the Executive order 12333. And when NSA operates entirely under that Executive order, on this, there is no usual judicial oversight, not even from the FISA Court.

The bottom line for the President and my colleagues, congressional oversight is often dependent on what the Executive branch wants to disclose. The potential for abuse is staggering.

In 2005, 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. By the way, it was also hidden from Congress. I was a member of the Senate Intelligence Committee, and even the committee wasn't told about the program. This is one of those infamous decisions that you hear about in situations-- what is called the Gang of 8--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 put together a handwritten letter to the Vice President-- Vice President Cheney. He said he had concerns but that on his own, he couldn't even fully evaluate the program; and so the program continued for years--no oversight, no opportunity for Congress to address it through legislation.

This history demonstrates what happens when the NSA's enormous capabilities are abused--abused by administration officials who are willing, unfortunately, to break the law. And, unfortunately, that is an accurate description of the executive branch and this administration.

It is indisputable that constitutional rights in America are under attack right now. For example, we only recently learned that 9 months ago the administration secretly decided that the government didn't need a judicial warrant to break into a private home; in other words, the administration thinks it can just ignore the Fourth Amendment.

And if the administration is going to ignore the Fourth Amendment to break down doors, what assurance would there be that they wouldn't also tap Americans' phones without a warrant? Why should anybody believe they wouldn't do it secretly and make sure that the public or the Congress or even full Intelligence Committees weren't aware?

When it comes to surveillance, I subscribe to Ben Franklin's principle. Franklin said:

Those who would give up liberty for security will lose both and deserve neither.

The fact is--and I work on this every single day--we need both. That is not a partisan proposition.

Refusing to promise to not violate the Constitution doesn't make us safer. That is why I was particularly focused on General Rudd's understanding of the constitutional limits on the operations of the NSA.

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. And I told him in advance that I would ask this question. Then, at the hearing, I offered him the opportunity to answer with a ``yes'' or a ``no.'' We still got no answers.

So I thought: Cut him some slack and encourage him to offer just some general thoughts on the matter. Still, we got nothing, and I did everything in my power at that confirmation hearing to allow him to demonstrate some understanding of the basic guardrails of the NSA's authorities. I only got vague assurances that he might be interested in the law.

Given the history of these NSA abuses and this administration's clear disregard for the Constitution, the general's inability to answer this question in a meaningful way would have really been enough for me to oppose the nomination, but there were other topics that were just as bad. 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. General Rudd wouldn't stand by that public policy.

That has real implications. Location data, which is bought and sold by some of the sleaziest merchants in the world--sleazy data brokers-- can reveal extremely sensitive private information about Americans, including what medical clinics they go to, what houses of worship they go to, what stores they shop at, what protests they attend, and which friends and family they see.

The threat to Americans' privacy is even more serious when you stop to consider the discussion about artificial intelligence and how artificial intelligence can be used against enormous amounts of commercially available data, including location information on Americans.

So, again, it is deeply disturbing that General Rudd refuses to endorse the NSA's past commitment. This is what they said they would do in the past, and it was to not 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.

I think Members know encryption is the code that protects your messages, your pictures, and private data from predators and criminals. For years, officials have argued that the government should force the tech companies to build backdoors into their encryption products.

But you talk to security researchers, and they will tell you there is no way to create encryption backdoors that only the government can use. Once you weaken encryption, it is inevitable in America that foreign spies and criminals will exploit the vulnerability.

Now, as hacking has gotten more and more sophisticated, the threat that our adversaries will use any and all cyber vulnerabilities has gotten more obvious. In fact, the constant headlines about successful hacking campaigns are probably the reason why we are 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 responsibilities for the Nation's cyber security. Again, the general refused to take a position.

So his responses to transparency, as we move to consider this nomination, are especially troubling. In addition to laws and the Constitution, the NSA is bound by numerous policies and procedures which are publicly available. These policies and procedures are especially important because they provide some guardrails on NSA's surveillance and intelligence activities under Executive Order 12333, which, again, is not governed by FISA and not reviewed by the FISA Court.

So to take just one example, if the National Security Agency is going to conduct a search of a 12333 collection for Americans' 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 get a better understanding of the guardrails that apply to the NSA's surveillance activities.

This is the bottom line: The National Security Agency is supposed to be hunting for terrorists and spies. This Agency 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, as we began to wrap up our confirmation hearing: If he were directed to operate in violation of those public policies and procedures, would he inform the American people? Once again, he refused to make a commitment.

So I also asked him whether, if the administration secretly decided to withdraw or change any of the public policies, would he ensure that the public sees the new policies. Again, no commitment.

So let's be clear. The operational details of the NSA's business, its sources, and methods have to be absolutely protected. National security is at stake. But I didn't ask General Rudd about sources and methods. They are off limits. I asked him whether Americans can rely on the NSA to conduct its operations within the guardrails that the government-- and this is the key--has already made public. But in his response, it is not clear that they can.

When Americans can no longer trust whether intelligence Agencies are respecting their own public policies, that is bad for democracy, and it is 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 inform the Senate Select Committee on Intelligence. General Rudd wouldn't even answer that question in a straightforward way, which makes me wonder what abuses even the Intelligence Committee is never going to hear about.

In closing, I have great respect for General Rudd's many years of military service, but I stand here because his troubling statements about constitutional rights, which I went into with him in detail, simply leave him not qualified for this job.

We are now in the second week of a reckless war that was started by Donald Trump. This war and its global fallout have created new and serious threats to our national security. Our country needs an NSA Director with experience in U.S. signals activities, and it has to come from working on these issues 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 can't be overstated.

And as Salt Typhoon demonstrated, our adversaries have succeeded in inflicting serious damage to our national security. Just last week, the government acknowledged ongoing hacking of U.S. Government Agencies.

So our country needs somebody who is prepared from day one to protect our country in this crucial area that I describe in closing--that is the question of cyber--because we are dealing not just with Iran but China and Russia. The Commander of CYBERCOM needs to have a deep and sophisticated understanding of this threat. 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.

Americans are at war, and we cannot afford to promote someone who lacks the experience for the job. General Rudd's predecessor in the job had that experience. They came up through CYBERCOM. They were ready. General Rudd is not. And when it comes to the cyber security of the country, there just isn't time for on-the-job learning. The threat is too urgent for that.

Madam President, for these reasons, I oppose this nomination, and I urge my colleagues in the Senate to do the same.

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