2006-2013: Snowden, Assange, Mass Surveillance, and Whistleblowing

Joe Biden laid the legal groundwork for U.S. surveillance programs by helping draft the Foreign Intelligence Surveillance Act of 1978, known as FISA. During the Reagan-era tenure of CIA Director William Casey, Biden expressed support for crackdowns against leaks that exposed the identities of CIA agents and helped sponsor legislation that allowed the government to redact classified information in documents released in the course of legal disclosures — efforts that led the CIA at the time to characterize Biden as an ally in their fight against leakers.

Under the Bush administration, Biden was a vocal critic of mass surveillance programs that scooped up the metadata of U.S. citizens, though he never mentioned that his own legislative efforts paved the way for the Patriot Act and the abuses he later decried. In 2006, following media reports about the existence of such programs, Biden described them as part of a “pattern of excess” on the part of the Bush administration. He said such programs were highly intrusive and often useless for combating terrorism. “If I know every single phone call you made, I’m able to determine every single person you talk to, I can get a pattern about your life that is very, very intrusive,” Biden said. “If it’s true that 200 million Americans’ phone calls were monitored, in terms of not listening to what they said but to whom they spoke and who spoke to them, I don’t know, the Congress should investigate this.”

When proof of large-scale monitoring of Americans’ call records emerged while he was in the vice presidency, Biden did not call back to his indignation about privacy but rather to his earlier efforts toward cracking down on leakers. Following revelations in 2013 from National Security Agency whistleblower Edward Snowden that the U.S. government was collecting metadata information from millions of Americans, Biden intervened in order to prevent Snowden from obtaining asylum in Ecuador, according to then-Ecuadorian President Rafael Correa.

Likewise, Biden had taken a hard line against the activities of WikiLeaks. After a major leak of U.S. State Department diplomatic cables was published by WikiLeaks, Biden forcefully denounced Julian Assange, the organization’s founder, as a “high-tech terrorist” who had done significant harm to U.S. national interests by revealing the documents. Biden’s comments about Assange and the impact of the leak were in contrast to messaging from other top U.S. officials at the time, who suggested that the revelations had minimal impact on their operations. “If he conspired to get these classified documents with a member of the U.S. military, that’s fundamentally different than if somebody drops on your lap, ‘Here, David, you’re a press person, here is classified material,’” Biden told NBC’s “Meet the Press” host David Gregory in a 2010 interview. He argued that the leaks had undermined the ability to conduct diplomacy, even with friendly countries.

Early into his term as president, Biden has continued to pursue an extradition effort launched by the Trump administration aimed at bringing Assange to the United States for prosecution over his disclosures. Biden has to date also declined to pardon whistleblower Reality Winner for allegedly leaking classified information during Donald Trump’s presidency. His Justice Department is continuing the Trump administration’s Espionage Act prosecution of Daniel Hale, who allegedly leaked documents on the U.S. watch-listing system and U.S. assassination operations.