The USA Freedom Act thread

[Mike]

By now, it should be well known that Senators Ron Wyden and Mark Udall are the two key truth-tellers in Congress when it comes to what kind of surveillance is being done by the intelligence community. If they ask a question, assume the answer is "yes." With the introduction of the new USA Freedom Act in the Senate, we noted that, while it does take a big step forward, there is a lot more that can be done. Wyden and Udall have released a statement noting that they plan to seek to strengthen the bill with an amendment to close the backdoor search "loophole" which is used by the entire intelligence community to spy on Americans. It's unfortunate that Leahy didn't include that in the original bill -- and it suggests that there might not (yet) be enough support to close the backdoor. But this is a massively important issue -- as Wyden and Udall have been pointing out for quite some time now. Hopefully, enough noise can be made that this important change is added to the bill.

Originally Published: Tue, 29 Jul 2014 21:11:24 GMT
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[Mike]

Judge John Bates, a district court judge who also served on the FISA Court seems to have decided that his job as a judge is to defend the surveillance state, and with it the judiciary's role in protecting the surveillance state. Earlier this year, we wrote about Judge Bates sending a letter to Senator Dianne Feinstein, urging that no major changes be made to how the FISA court did its business. Among a number of questionable arguments, Bates also (falsely) claimed that his letter (which only he signed) represented the views of "the Judiciary." While the Judicial Conference normally is in charge of expressing any views on policies that impact the judiciary, Bates apparently decided (by himself) that since he was secretary of the Judicial Conference and had served on the FISA Court that he could just officially state the position by himself.

That this rather hubristic claim was shot down by multiple experts apparently has not dampened Judge Bates' insistence that he, and he alone, expresses the views of "the judiciary" when it comes to the intelligence community. As reported in the Wall Street Journal, Judge Bates has sent a new letter, this time to Senator Patrick Leahy, expressing his concerns about Leahy's new USA Freedom Act, a bill that is a big step forward (though could still use more help). That bill was the result of months of negotiating between the Senate, the intelligence community and the White House. It's a "compromise" bill in almost every way.

But Judge Bates doesn't like it. At least in the past, his argument was actually concerning the judiciary, and how some of the proposed reforms might potentially overburden it (even if those arguments weren't particularly well supported). With this new letter, he more or less shows his hand as a surveillance state apologist, in that many of the arguments have little to nothing to do with how the new USA Freedom Act would impact the judiciary (which, again, Bates claims he alone represents), but rather how it would impact the intelligence community and the executive branch. Here, for example, he's concerned that if there were a civil liberties advocate allowed to be an adversary on the court, it would mean that the government would be afraid to reveal certain things:

In fact, the participation of the special advocate could actually hinder the ability to obtain complete and accurate information. Introducing an adversarial special advocate in FISA proceedings creates the risk that representatives of the Executive Branch who, as noted, have a heightened duty of candor in ex parte FISA court proceedings would be reluctant to disclose to the courts particularly sensitive factual information, or information detrimental to a case, because doing so would also disclose the information to an independent adversary. This reluctance could diminish the court's ability to obtain all relevant information, thus degrading the quality of its decisions. Alternatively, it could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA.

That last sentence is quite telling. As a judge, how is it of Bates' concern whether or not the intelligence community decides to pursue intelligence-gathering efforts? He seems to assume that limiting the ability of the intelligence community to spy on people is, inherently, a problem.

Furthermore, just the idea that the court is more likely to get all the information in a non-adversarial environment seems totally without support. It doesn't make any logical sense either. Under the existing "ex parte" system, the government has every incentive in the world to distort the facts and provide "just enough" information to get the rubber stamp to come down. Having an adversarial process designed to protect civil liberties can further delve to make sure that all the relevant information is on the table. Why is Judge Bates so afraid of that?

In fact, as Harley Geiger points out, if anyone should know better, it's Judge Bates. After all, just a few years ago, he was the one who issued a stinging FISC decision accusing the government of regularly misrepresenting things. And yet, now he's claiming that the government is always nice and open with FISC and wouldn't benefit from having a third party asking questions?

Furthermore, as Steve Vladeck notes in a detailed response to Bates, it's bizarre that Bates seems to be saying that he's concerned about the executive branch's ability to do surveillance, when the executive branch helped negotiate the compromise that created this bill. Why is Bates so concerned, other than that he's in favor of greater surveillance?

with respect to Judge Bates’s real concern–that having to provide a special advocate with access to at least some of the classified information upon which surveillance applications are based “could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA”–it’s more than a little telling that the Executive Branch nevertheless supports the Senate bill. If this was really a genuine problem (indeed, some may well think that forcing such a choice is exactly the point), wouldn’t we expect to have heard about it from the intelligence community, the Justice Department, and/or the White House? That is to say, isn’t Judge Bates’s real objection here on behalf of the (apparently content) Executive Branch, and not the judiciary? Even the former FBI General Counsel has openly supported these kinds of reforms…

The same response can be offered to Judge Bates’s concern about the timing of surveillance applications, and the extent to which resolving whether a special advocate should be appointed will slow down cases that demand expedition. One would once again think that, if the intelligence community, Justice Department, or White House was actually worried about this problem, they would not have agreed to the language in the current version of the Senate bill. And a big part of why they probably did agree to this language is because Judge Bates’s timing concerns are a red herring. As he himself concedes, “the bill would give courts discretion, consistent with the timing requirements imposed by Congress on FISA court action or as otherwise appropriate, to decline to designate a special advocate even when one would, as a default matter, be required.” His concern instead appears to be that even deciding whether a specific case is one in which it would take too long to make that determination will itself take too much time. Somehow, I suspect that jurists like Judge Bates will not be especially inclined to go out of their way to hamstring themselves (or the Executive Branch) in such cases, but will rather take full advantage of the discretion the Senate bill affords them.

Meanwhile, Vladeck rightfully challenges why Bates believes that he, alone, can speak for the entire judiciary on this matter, given that many other judges -- including other FISA court judges -- have supported these kinds of reforms.

[i]Second, and more fundamentally, we return to the question I raised back in May–by what right does Judge Bates even purport to speak “on behalf of the Judiciary”? Yes, he is the Director of the Administrative Office of the U.S. Courts (AO)–and, in that capacity, serves as Secretary to the Judicial Conference of the United States. But under federal law, it is the latter body–the Judicial Conference–and not the AO that is the official policy voice of the federal judiciary, and for good reason. Federal law not only outlines who serves on the Judicial Conference, but it also provides procedural and substantive rules to guide that body in how it conducts business, with an eye toward ensuring that it only speaks on pending policy issues of appropriate concern to federal judges.

[....]

Part of why it is so important for Judge Bates to clarify the authority with which he is purporting to speak is because we know better. As I wrote back in May, at least two of Judge Bates’s former colleagues on the FISA Court have publicly endorsed far more aggressive reforms to the FISA Court (including through a special advocate) than those provided by the Senate bill: Judge James Carr in a July 2013 op-ed in the New York Times, and Judge James Robertson in a series of speeches delivered last summer. It should follow that at least Judges Carr and Robertson–and, based on my own private conversations, far more of their colleagues–don’t share Judge Bates’s concerns about the Senate bill. They’re not alone. [/i]

It's become clear that Judge Bates' concerns are not those of "the judiciary" or even personal concerns about it might impact his role as a judge. Instead, it's pretty clear that he believes in the surveillance state, and is worried that something like the USA Freedom Act might push back on the surveillance state. That's a position that he's entitled to have, of course, but he shouldn't be claiming to represent the entire judiciary while pushing such an agenda.

Originally Published: Fri, 08 Aug 2014 14:49:08 GMT
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[Mike]

It appears the government will finally be releasing the FISA court's thought process justifying the mass harvesting of Americans' metadata from fully-immunized telcos under the Section 215 program (now 501). An earlier court order from FISA judge Dennis Saylor discussing the potential release of this court opinion described it thusly:

The government has identified the Opinion issued in Docket Number BR 13-25 on February 19, 2013, as one that "contain[s] analysis by this Court evaluating the meaning, scope, and/or constitutionality" of Section 215 of the USA PATRIOT Act, codified as amended at 50 U.S.C. § 1861.

Whether it will be instructive and enlightening (rather than stuffed full of Third Party Doctrine bullshit and circular "it's legal because it's legal" reasoning) remains to be seen. But the last two words of that previous sentence are something at least: it will "be seen." And, apparently, with a minimum of redactions.

For the reasons stated herein, the Court is directing the government to prepare and declassify a redacted version of the opinion issued by the Foreign Intelligence Surveillance Court (FISC) in Docket Number BR-25 on February 19, 2013.

The ACLU (and others) have pushed for a release of this particular FISC opinion for more than a year now. The court doesn't even attempt to address the First Amendment implications of withholding the opinion from the public because there are plenty of other angles justifying its release. The court notes that the release would serve the public's interest as recent disclosures (both authorized and unauthorized) have brought the Section 215 program into the court of public opinion (as well as actual federal courtrooms).

While the FISA court may have arrived at this conclusion based on ongoing events, the government arrived somewhere completely different.

After appropriations had been reinstated and a timetable for declassification review had been set, the government advised that, “[a]fter careful review of the [February 19, 2013] Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.”

The FISA court asked for the combined brain power of the DOJ, Executive Branch and an unspecified number of "senior intelligence officials" to explain their thought process and got a lot of unintelligible mumbles and floor-staring in return.

Noting that “the government has provided no explanation of this conclusion,” the Court ordered the government to submit “a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.”

Duly chastened, the brain trust resorted to one of its favorites: making this info public would jeopardize ongoing investigations. But it conceded that the opinion could still be declassified if a sufficient amount of black ink is spilled. The FISC pressed harder, asking for narrower redactions that removed only the targets in question, rather than the accompanying language that would clarify the court's stance on the bulk collection issue. Surprisingly, despite its lack of practice with operating anything narrowly-defined or targeted, the government managed to come up with a redacted version that satisfied the unexpectedly demanding FISA court.

[T]he Court notes that releasing the February 19, 2013 Opinion pursuant to the Second Redaction Proposal achieves the basic objective sought by the movants: disclosure of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts. There is an inherent risk that the end product of such an exercise “may confuse or obscure, rather than illuminate, the decision[ ] in question.” In re Motion for Release of Court Records, 526 F. Supp.2d at 495. On balance, however, the Court is satisfied that publication of the February 19, 2013 Opinion in conformance with the Second Redaction Proposal would enhance, rather than detract from, public understanding of the Court’s reasoning as to the legal issues presented.

Well, I guess we'll see what it looks like when we get it. August 29th is deadline for the submission of a formally declassified version of the (supposedly) narrowly-redacted opinion. The FISA court then needs to give it a quick once-over before publishing it "immediately" to its website. I don't expect to see it any sooner than the end of this month, but we'll be taking a good look at it when it finally arrives.

Originally Published: Mon, 11 Aug 2014 18:15:00 GMT
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[Mike]

The latest version of the USA Freedom Act is still on the boards, representing a big improvement in somewhat limiting NSA bulk surveillance on Americans. It's not great, but it's a step in the right direction, which would be more than has happened in decades. That said, never underestimate the ability of people spewing FUD. Senator Saxby Chambliss, one of the biggest kneejerk defenders of the surveillance state, has apparently decided that this minor curtailing of bulk surveillance efforts will help ISIS and therefore we shouldn't do it.

“If you want to take away the ability to monitor ISIS, then you eliminate the tools that are eliminated in the Leahy bill,” Georgia Sen. Saxby Chambliss, the top Republican on the Senate Intelligence Committee, said in a weekend Hill report. “I can’t imagine anybody wanting to do that.”

This is the logic of fear, because it has no basis in reality. Most of the USA Freedom Act is about whether or not the NSA can do bulk collection of records in the US on US persons. It has no impact on Executive Order 12333 where most ISIS surveillance is almost certainly taking place. In short, there's nothing in the USA Freedom Act that has any real impact on ISIS surveillance.

Basically, you just have surveillance state defenders using the most convenient bogeyman, in this case ISIS, to seek more power for the surveillance state, logic and reality be damned. The whole thing is just a cynical ploy to defend the surveillance state at all costs. But, under that idiotic logic, we might as well do away with the 4th Amendment altogether. Hell, why not just mandate that every human being in the US walk around with a camera and microphone recording everything they say and do -- all automatically shipped off to NSA headquarters at Ft. Meade for analysis? That might help stop ISIS. Just like collecting all phone records might. But in all reality it won't. At all. So it's a cowardly, shameful FUD suggestion from a cynical Chambliss. He's not looking out for the American people or their rights. He's looking out for the surveillance state.

Thankfully, Senator Patrick Leahy (the sponsor of the USA Freedom Act) quickly hit back, though not quite as strongly as he could have:

Leahy himself dismissed such claims.

“We’re always going to face threats,” Leahy said in the report. “The biggest one we can face is the threat to our own liberties and our own privacy.”

That's a message that doesn't seem particularly popular among surveillance state defenders.

Originally Published: Tue, 23 Sep 2014 15:04:35 GMT
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[Mike]

As the cloture vote is set to happen tonight on the Senate version of the USA Freedom Act, the hysterics are getting... well, more hysterical. Michael Hayden (former NSA and CIA director) and Michael Mukasey (former Attorney General) have an opinion piece in the Wall Street Journal dubbing the bill "NSA Reform That Only ISIS Could Love," which is kind of hilarious given that current Director of National Intelligence, James Clapper (who usually sings in perfect harmony with Hayden) has come out in support of the bill. While the bill has some problems, it is still a step forward (and yes, I'm aware that not everyone agrees with that). But Hayden/Mukasey make a bunch of statements that are just not at all accurate. It starts off with the usual FUD about ISIS and then questions why Reid would present this bill given that:

In that threat environment, one would think that the last thing on the “to do” list of the 113th Congress would be to add to the grim news. Yet Senate Majority Leader Harry Reid has announced that he will bring to the floor the extravagantly misnamed USA Freedom Act, a major new bill exquisitely crafted to hobble the gathering of electronic intelligence.

Except that's not true. The bill is not designed to "hobble" electronic intelligence, but to respect at least some of our 4th Amendment rights, and to bar mass collection of the information without limits. Then there's this:

For starters, the bill ends the National Security Agency’s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies. The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA’s.

First off, they're simply wrong. It doesn't require a warrant, but a FISA court order under Section 215. It just limits how broad those orders can be. The reason it's not a warrant is you can't get such a broad warrant. Second, the "cumbersome and untried process" is neither cumbersome nor untried. It's how lots of investigations work today. When law enforcement needs info, it goes to court, gets a court order, and voila. And does anyone actually believe, in this digital age, that there's any actual "scurrying"? Hell, to make this process easier for the DEA in the past, AT&T was willing to embed employees with the DEA to give them faster access to the database. If anything, these are reasons why the bill doesn't go far enough. The idea that it somehow takes away US intelligence capabilities is ludicrous. Furthermore, it's already been noted that ISIS knows how to evade such surveillance: by not using electronic communications. So this has nothing to do with ISIS at all. At all.

Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.

So we shouldn't pass this bill because at some future date the FCC might possibly allow companies not to keep these records? Really?

The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation—period.

Again, misleading in the extreme. When the DOJ is seeking metadata in a criminal case, it's seeking specific metadata concerning the crime being investigated. This is about stopping the collection of all phone records. Notice that Hayden and Mukasey never bother to explain this distinction. Because they're being incredibly dishonest.

There's much more in there, but nearly all of it is dishonest. It claims that "there is no immediate or emergency need" for the bill, totally leaving out the systematic violation of Americans' 4th Amendment rights and an independent review board finding the program illegal and unconstitutional and a President who asked Congress to end the program. Yet, Hayden and Mukasey insist this program -- which has yet to show a single successful example of being used to prevent terrorism -- has to remain in place? Really?

And, of course, Hayden and Mukasey have friends. Incoming Senate Majority Leader Mitch McConnell similarly called out the specter of ISIS, despite the fact it's widely acknowledged that ISIS already knows how to avoid our surveillance efforts (and is focused on the middle east, while the USA Freedom Act is just about domestic phone records inside the US).

The USA Freedom Act has its problems, but it also has some important and useful aspects. The claim that it will somehow help ISIS by preventing such bulk data collection is simply ridiculous and untrue.

Originally Published: Tue, 18 Nov 2014 21:42:00 GMT
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[Mike]

So, this evening the USA Freedom Act failed to get the 60 votes it needed for cloture to "advance" to a full floor vote. It ended up at 58 to 42. There was a short debate prior to the vote, and the debate was... stupid. Yes, there are some legitimate concerns with the USA Freedom Act, mostly in that it doesn't go far enough. But that's not what the debate was about at all. You had a bunch of bizarrely clueless Senators, many of whom insisted they were against the act because it would take the bulk collection out of the hands of the NSA and put it into the hands of the telcos -- with the claim being that the NSA could keep that data safer. Senators Susan Collins and Saxby Chambliss kept harping on that point. But it's flat out wrong. Because the whole point of this is that the telcos already have this data. The debate is between "telcos have the data" and "telcos and NSA have the data." Arguing that telcos-only is inherently more likely to lead to a privacy violation makes no sense at all.

Chambliss went further, repeating (over and over again) that it's okay for the NSA to have this data because only 22 people have access to it. Of course, as Marcy Wheeler points out, that's not true. 22 people can authorize a search based on "reasonable articulable suspicion" but many others can access the results. Furthermore, as Harley Geiger points out, the problem is not even at the point of access, but collection, and there's nothing in the law that says the limit is always 22. Frankly, the whole 22 people debate seems strange to me. Is Chambliss really arguing that it's okay to violate the 4th Amendment if only 22 people can do it?

Separately, Senator Dianne Feinstein very reluctantly supported the bill, noting that she's very afraid that if this bill doesn't pass, the whole Section 215 program will go away. Frankly, that actually sounded like a good reason not to support the bill. She also kept insisting that it wasn't being abused because there were only "288" searches last year on that data. First of all, 288 already seems like quite a lot to me, and again we go to Marcy Wheeler for the fact check, where she points out that it's not 288 searches, but rather 288 "selectors," which could be queried multiple times (and those selectors could scoop up lots of data).

Hopefully, it turns out that Senator Feinstein's "fears" on this bill were accurate, and that it leads to the end of Section 215 altogether. But, the completely bogus debate over this effort just highlights how ridiculous the idea is that the Senate has any sort of "oversight" over the NSA, or that it has the interests of the Constitution or the public in mind.

Originally Published: Wed, 19 Nov 2014 01:11:32 GMT
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[Mike]

Update: And, of course just as this story came out, Nelson's office finally spoke on the issue after dodging requests from multiple reporters all morning. They told Kevin Collier that the vote was not a mistake, despite the rumors and questions (and the fact that he was the only Democrat to vote against cloture. The original post is below. According to Collier, Nelson's office says that he feared the bill would have "undone a provision allowing for retention of certain telephone records that he feels is helpful in preventing future terrorist attacks." That's a funny statement, of course, given that the program in question has yet to be shown to have prevented any terrorist attacks. Ah well...

Oh, Florida. As we noted last night, the Senate failed to move the USA Freedom Act forward in a cloture vote. Sixty votes were needed to bring the bill to a real vote, and only 58 made it. Many people focused on the fact that "Republicans blocked the bill" while noting that the vote was mostly along party lines, with just four Republicans voting for it: Senators Mike Lee, Dean Heller, Lisa Murkowski and Mike Lee. A lot of the focus was on Senator Rand Paul, who is vocally opposed to NSA spying, but voted against this bill, saying he didn't think it went far enough (nearly all of the other no votes were because they felt it went too far). Bizarrely, after voting no on cloture, Rand Paul now claims he's sad -- and that "they probably needed my vote." Uh, yeah.

However, few have mentioned that there was only one Democrat who went the other way and voted against cloture: Senator Bill Nelson of Florida. Now there are reports from Alvaro Bedoya (a recent Senate staffer) that Nelson actually meant to vote for cloture, but voted no "by mistake." I have a request in with his office to see if this is accurate, but haven't heard back yet. However, that's quite an incredible mistake if true. It's certainly not unheard of for elected officials to accidentally vote the wrong way, but on major issues like this, they're usually pretty careful. And, yes, if Nelson had voted for cloture it would have only brought the vote up to 59, but that just highlights how important Rand Paul's vote was in killing off this attempt at reform.

No matter what, can't we at least expect our Senators to vote the way they actually planned to vote?

Originally Published: Wed, 19 Nov 2014 18:14:04 GMT
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[stormium]

it's sort of funny because i have a feeling that votes are still being recounted from the 2000 elections... oh florida...