Former NSA, CIA Director Claims Only ISIS Likes USA Freedom Act, Even As James Clapper Supports It

from the ridiculousness dept

Tue, Nov 18th 2014 1:42pm — Mike Masnick

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.

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Filed Under: bulk collection, fud, isis, james clapper, michael hayden, michael mukasey, patrick leahy, surveillance, usa freedom act

22 Comments

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That One Guy (profile), 18 Nov 2014 @ 1:46pm

Run that by me again?
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.

So getting a warrant is now an 'imposition'? Certainly shows just how they view, and how much much they respect any 'restrictions' they may face when conducting their mass spying.

Sadly, it's also par for the course these days. Whether it's the NSA, the police, or some other government agency, the idea of 'getting a warrant' is seen as 'unnecessary' to most of them, and just a bothersome problem/requirement to route around and/or ignore.
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Anonymous Coward, 18 Nov 2014 @ 1:51pm

Re: Run that by me again?
So getting a warrant is now an 'imposition'?

I don't understand how they even have the balls to imply that. Given that technology makes getting a warrant infinitely easier, such a statement is a testimonial as to how ignorant they feel the populace really is.
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private frazer, 18 Nov 2014 @ 2:04pm

osama knew not to use phones or the internet
and that was years ago now.
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That One Guy (profile), 18 Nov 2014 @ 2:09pm

Re: Re: Run that by me again?
They believe(and seem to be correctly sadly) that they can get away with it because the politicians are too cowardly to stand up to them(who among that group has the guts to 'stand on the side of terrorists' after all?), and they've got a pet 'court' that is willing and able to carve them out exceptions on interpretations of secret laws(with the exceptions naturally being secret as well).
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JMT (profile), 18 Nov 2014 @ 2:09pm

Extravagantly misnamed?
"...the extravagantly misnamed USA Freedom Act..."

You mean a bit like the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001?
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David, 18 Nov 2014 @ 2:09pm

Imposition?
"would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case"

When in a criminal case, the DA doesn't hoover up all the meta data in the US, either. So yeah, that would make the mass collection more burden some. And so it should.

Frankly, simply the fact that the NSA doesn't like it tends to make me like it more.
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Anonymous Coward, 18 Nov 2014 @ 2:20pm

Look, man. Only ISIS (or ISIL or IHOP or whatever they are now) wants to respect our rights. Any bill that does that is extremely pro terrorism.
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Anonymous Coward, 18 Nov 2014 @ 2:21pm

Re: osama knew not to use phones or the internet
He not only knew not to use them, he knew he was target #1. He set up that things he wanted on the internet were delivered by messenger with a thumb drive far from where he was.

This is not new news, this is ancient news by the way the NSA acts that these terrorists would act with speed over some new discovery. The truth is when you find problems you keep shoving solutions at it till you find one that works.

These jerk knee reactions are exactly why citizens are fed up with Washington and it's games.
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Chris Brand, 18 Nov 2014 @ 2:25pm

Re: Imposition?
Sounds perfectly reasonable to me - it should be harder to get hold of the same information when you think the suspect might have something to do with terrorism than when you have reasonable grounds to believe they already committed a criminal act.
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Anonymous Coward, 18 Nov 2014 @ 2:25pm

Honest question, how fucking difficult is it to follow the requirements of law and procure a warrant? Because according to every alphabet agency - there is simply not enough time to follow the law - to uphold the law.
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Anonymous Coward, 18 Nov 2014 @ 2:39pm

Re:
Including NYCPD, LAPD, and every other *PD agency out there.
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Anonymous Coward, 18 Nov 2014 @ 2:45pm

Well it at least appears to stop mass collection on the surface. I doubt this legislation alone will stop anything in actual day to day activities of collecting mass data. Just like laws prohibiting cops from abusing people don't really stop the problem. However we have to start somewhere.
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Anonymous Coward, 18 Nov 2014 @ 3:09pm

Re: osama knew not to use phones or the internet
That's actually untrue. We(NSA) and a few others, tracked Osama via cellphones for years, until a Congresscritter let it slip.
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Uriel-238 (profile), 18 Nov 2014 @ 3:14pm

Because TERRORISM
Same old song.
Just a drop of water in an endless sea.
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That One Guy (profile), 18 Nov 2014 @ 4:02pm

Re:
Well there's the thing, if they actually respected the spirit of the law, and the privacy rights of the people? Ridiculously easy. I'd have to go looking, but I believe a good while back there was an article that noted that judges basically rubber-stamp almost all warrant requests put in front of them, declining very few.

Thing is though, a warrant creates a paper trail. It requires them to show at least some evidence that the target is involved in criminal activity, or at least strongly suspected of such. For a reasonable, targeted warrant/investigation, those aren't difficult requirements to meet.

However, if you want to spy on everyone, and do so in a manner that no-one but you knows about it, with no record of your actions available? Then those simple requirements suddenly get a lot more difficult to meet, and suddenly the simple act of getting a warrant becomes an 'unreasonable imposition'.
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twinsdad9901, 18 Nov 2014 @ 4:15pm

Misnamed bill
"the extravagantly misnamed USA Freedom Act"

Finally, something Clapper and I agree on.
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Uriel-238 (profile), 18 Nov 2014 @ 4:40pm

A warrant requires reasonable suspicion.
That's the relevant issue right there.

A warrant requirement is objectionable because it requires reasonable suspicion. Clapper likes searching when there is unreasonable suspicion or no suspicion, but the target is someone he wants to oubliette.
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Anonymous Coward, 18 Nov 2014 @ 5:06pm

"Only ISIS Likes USA Freedom Act, Even As James Clapper Supports It"

Ergo - Clapper supports ISIS
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Anonymous Coward, 19 Nov 2014 @ 5:53am

Fearmongering, manipulative, idiot
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Pragmatic, 24 Nov 2014 @ 5:13am

Re:
They've been trying to sell us the idea that due process is an impediment to justice for years. I'm glad we're not all falling for that crap.
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