Senators Wyden & Udall To DOJ: Stop Saying Patriot Act Isn't A Secret Law When You Know It Is

from the will-it-matter? dept

Senators Ron Wyden and Mark Udall have been pressing the feds for a while now concerning their secret interpretation of the Patriot Act, which appears to go way, way, way beyond what most in the public believe on simply reading the bill. While the two Senators had put forth an Amendment to explain these secret interpretations when certain provisions of the Patriot Act were up for renewal, they eventually dropped the Amendment in exchange for some other concessions, and a promise that hearings would be held on the issue. Since then, the Senators have continued to press the feds on this issue at every opportunity, leading to quite a lot of doublespeak from the feds.

The latest development is that the two Senators have sent a letter to Attorney General Eric Holder, saying that Justice Department representatives are clearly misleading the public about the interpretation of the law. Basically, they say that there's a classified ruling about the interpretation of the law, which some in the government (including Wyden, Udall and Holder) are clearly aware of, but which likely interprets the law vastly differently than most in the public would. And the statements from the Justice Department improperly imply that the details surrounding the law are publicly known -- when they are not.

Shorter version: There's a secret court ruling out there that says the government can spy on a ton of people under the Patriot Act, even though the text of the law seems to suggest otherwise. And the Justice Department is implying that the text of the law is an accurate representation of what the law actually is -- when the secret court ruling seems to say otherwise.

While we are sure that you would agree that government officials should not describe government authorities in a way that misleads the public, during your tenure Justice Department officials have -- on a number of occasions -- made what we believe are misleading statements pertaining to the government's interpretation of surveillance law.

The first set of statements that concern us are the repeated claims by Justice Department officials that the government's authority to obtain business records or other 'tangible things' under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena. This comparison -- which we consider highly misleading -- has been made by Justice Department officials on multiple occasions, including in testimony before Congress. As you know, Section 215 authorities are not interpreted the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are "analogous" they provide the public with a false understanding of how surveillance law is interpreted in practice.

More recently, we were troubled to learn that a Justice Department spokesman state that "Section 215 [of the Patriot Act] is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department." This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions -- and the legal interpretations they contain -- continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law.

Separately, they note that when the truth comes out, the government is going to be severely embarrassed:

Americans will eventually and inevitably come to learn about the gap that currently exists between the public's understanding of government surveillance authorities and the official, classified interpretation of these authorities. We believe the best way to avoid a negative public reaction and an erosion in confidence in US intelligence agencies is to initiate an informed public debate about these authorities today.

Filed Under: eric holder, fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate

Ron Wyden Puts Hold On FISA Amendments Act; Wants Answers To How Many Americans Have Been Spied On

from the good-for-him dept

Last week, we noted that as everyone was focused on the debt ceiling, some in the Senate Intelligence Committee saw it as an opportunity to rush through an extension for the FISA Amendment Act, which was originally passed to "legalize" the government's warrantless wiretapping program (already ongoing) with retroactive immunity. Of course, when that was passed, it was made clear that the intent was solely to use it to conduct surveillance on people outside of the US. However, as Senators Ron Wyden and Mark Udall have made clear, intelligence officials have been using a very questionable "hybrid theory" to use the FAA and the Patriot Act to conduct widespread surveillance of Americans, most likely in the form of collecting tons of geolocation data from mobile phone operators.

There was no reason to approve the FAA extension last week, since it doesn't expire until next year. Even worse, the vote for the whole thing was in a "closed" session, not for classified reasons, since votes come out eventually, but basically to avoid public scrutiny. Wyden and Udall introduced an amendment requiring intelligence officials to explain the "problems" associated with secret interpretations of such laws that disagree with how most (including those in Congress) believe the law is intended for use. Since the vote was closed, there was no official notice on how it turned out, though we'd heard rumors that it was approved.

Senator Wyden has now come out and said that it was, in fact, approved, and his and Udall's Amendment was voted down 7-8. Because of this, Wyden is putting a hold on the FISA Amendments Act extension, and is pushing for a simple answer to the question that multiple intelligence officials said "is not reasonably possible" to answer: how many Americans are being spied under this Act, which was clearly intended to cover surveillance of foreigners.

As most of my colleagues remember, Congress passed the FISA Amendments Act in 2008 in an effort to give the government new authorities to conduct surveillance of foreigners outside the United States. The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended.

I believe that Congress has not yet adequately examined this issue, and that there are important questions that need to be answered before the FISA Amendments Act is given a long-term extension.

The central section of the FISA Amendments Act, the part that is now section 702 of the Foreign Intelligence Surveillance Act itself, specifically stated that it was intended to address foreigners outside the United States, and it even required the Attorney General to develop procedures designed to make sure that any individuals targeted with this new authority are believed to be outside the United States. So one of the central questions that Congress needs to ask is, are these procedures working as intended? Are they keeping the communications of law-abiding Americans from being swept up under this authority that was designed to apply to foreigners?

Wyden also notes that he has no intention of accepting the "not reasonably possible" language from the feds in response to his questions about how many Americans were spied on.

Hopefully this puts more pressure on the federal government to say how they've (mis)interpreted the law to collect vast aggregate data on Americans, abusing a law that was clearly designed for the sake of monitoring foreign communications.

Filed Under: fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate

Is Your Senator Using The Distraction Of The Debt Ceiling To Support The Feds Secret Interpretation Of Spying Laws?

from the sneaky-sneaky dept

We were just reporting on how Director of National Intelligence James Clapper was tap dancing around some specific questions about how much warrantless spying on Americans US federal intelligence agencies do. Much of that discussion revolved around the controversial FISA Amendments Act (recursively called the FAA) of 2008, which you may recall as the law that both made warrantless wiretapping officially legal (despite the fact that the federal government had been doing it for years under a very questionable legal theory) and granted telecom companies retroactive immunity for having helped the feds get such wiretaps despite the lack of warrants (and, in some cases, nothing more than a post-it note asking for it).

The FAA is set to expire in 2012, but, as we've seen with any law that grants the federal government more power to spy on Americans without oversight, there is no way the folks in power want to give up such things. Now come reports that, while most of Congress is focused on that whole debt ceiling thing, some have decided this is the perfect cover to quickly and secretly re-up the FAA. It's been reported that the Senate Select Committee on Intelligence is likely meeting behind closed doors today in an effort (by some) to re-up the FAA now, before anyone even realizes it's being debated. The last thing they want is pesky civil libertarians to re-start the discussion about the general constitutionality of spying on Americans without a warrant (believing in the 4th Amendment is sooooo old fashioned).

In trying to hunt down more details about what's going on, we found out that Senators Wyden and Udall -- who, as we've been discussing, have been trying to stop the federal government from secretly interpreting these laws in ways that seem contrary to what most believe the laws say -- are trying to add an amendment to this attempt to reauthorize the FAA. It's difficult to see how anyone can, in good conscience, vote against this. It includes such basic truths as:

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

The amendment specifically says that the Attorney General and the Director of National Intelligence would need to explain "the problems posed by the reliance of government agencies and departments on interpretations of domestic surveillance authorities that are inconsistent with the understanding of such authorities by the public."

Who could possibly vote against that?

Well, tragically, since this supposed meeting is "closed" (though not classified), the Senators get to hide from view for a while. It's one of those arcane Senate rules that are all too often used to allow Senators to avoid public scrutiny for their actions. While no members of the public or press are allowed in the room, and those in the room cannot tell what anyone else says (or votes) in the room... since it's not classified the Senators who are in the room can absolutely say what they said or did in the room. The specific votes on this particular amendment will be made public three weeks after the markup occurs, buying anyone voting against it three weeks of cover (and when the votes come out, they can pretend this is "old news"). The amendment itself is not secret or classified. Senators cannot reasonably claim that they can't say how they voted for "national security" reasons (a popular cop out) because their votes are going to be made public. The only reason to not answer the question of how they voted is because they want to avoid scrutiny.

So... if your Senator happens to be on the Senate Intelligence Committee now would be the time to call, email, tweet, fax, carrier pigeon, etc. to ask them whether they voted to let Americans know how the government is secretly interpreting its own laws... or if they voted against your basic fundamental rights to know how the government interprets its own laws. The list of Senators on the Committee are as follows:

• Dianne Feinstein, California (chair)
• Saxby Chambliss, Georgia (vice chair)
• John D. Rockefeller IV, West Virginia
• Olympia J. Snowe, Maine
• Ron Wyden, Oregon
• Richard Burr, North Carolina
• Barbara A. Mikulski, Maryland
• James Risch, Idaho
• Bill Nelson, Florida
• Daniel Coats, Indiana
• Kent Conrad, North Dakota
• Roy Blunt, Missouri
• Mark Udall, Colorado
• Marco Rubio, Florida
• Mark Warner, Virginia

If any of these Senators represent you, please reach out to them as soon as possible to ask them how they voted on the amendment embedded below, and please report back to us with what you hear. Let's not let certain Senators allow the government to make up its own rules and not tell the American public what those rules are.

Filed Under: fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate

ACLU Sues Over New Surveillance Act

from the ain't-over-yet dept

Following Congress granting President Bush the "get out of jail free" card he demanded, it probably comes as no surprise that he's signed the bill into law -- claiming (laughably) that the bill was designed to "protect the liberties of our citizens." It's unclear what in the new bill does that -- though there's plenty that does the opposite. Almost immediately, the ACLU has sued to challenge the constitutionality of the bill, saying that it appears to violate the 4th Amendment against unreasonable search and seizure without probable cause. Meanwhile, the EFF is also preparing to sue over both the telco immunity issue and the expanded surveillance powers. All of these efforts are probably long shots, but it means this isn't over yet.

Filed Under: fisa, surveillance, telco immunity, wiretapping
Companies: aclu, eff

Warrantless Wiretap 'Compromise' Really Just A Get Out Of Jail Free Card From The President

from the that-doesn't-seem-right dept

We've been following the ridiculous attempts by the administration to protect telcos who most likely broke the law in supplying warrantless wiretaps by trying to get "immunity" included in the new FISA bill. As we've pointed out, this makes absolutely no sense. If the administration or the telcos (or both) broke the law -- then that issue should be explored. Granting anyone immunity from even being tried for breaking the law doesn't seem appropriate. If there were special circumstances that explain why the telcos or the administration broke the law, why not at least have them come out in court rather than sweeping them all under the rug?

Unfortunately, now there's word coming out that a new "compromise" bill is likely to be approved. However, the details suggest this isn't a compromise. This is exactly what the administration wanted, and which some members of Congress have been fighting against. Basically, it would let the President say that he assured the telcos that their actions were legal -- and that would grant them immunity. In other words, this law would basically say that as long as the President tells you something is legal, it's automatically legal, and you can't get in trouble for doing it. That's not how the law is supposed to work -- and is a huge abuse of power. There's simply no way Congress should let this through, as it sets an awful precedent.

Filed Under: administration, fisa, immunity, telcos, warrantless wiretap

House Dems Release Draft of 'Compromise' Surveillance Bill

from the just-say-no-to-telecom-immunity dept

Democrats in the House of Representatives have finally released a preliminary draft of compromise legislation to amend the Foreign Intelligence Surveillance Act. For civil libertarians who had resigned themselves to one more capitulation to White House demands, the bill will come as a relief: There is not a lot of compromise in this "compromise bill." Unsurprisingly, that means that administration officials, and the House Republican leadership, regard the bill as unacceptable.

On the hot-button question of retroactive immunity for telecoms alleged to have participated in warrantless National Security Agency wiretaps, the draft bill would shunt suits against the companies to a federal court empowered to hear classified evidence. This may come as welcome news to the telecoms, which had complained that the exculpatory evidence they need to defend themselves consists largely of state secrets. It will probably be less appealing to the Bush administration, which has resisted outside scrutiny of the surveillance activities authorized by the president after 9/11. For similar reasons, the White House is likely to oppose a provision in the draft bill creating a bipartisan commission, endowed with subpoena powers, to investigate government wiretaps from 2001–2007.

The bill's approach to executive branch wiretaps is in many respects similar to that of the RESTORE Act passed by the House last year, as a side-by-side comparison chart makes clear. The administration is thrown a few bones: Unlike the RESTORE Act, this legislation covers surveillance serving any foreign intelligence purpose, rather than only those related to terrorism or national security. It also expands, from 72 hours to one week, the time allowed for "emergency" wiretaps implemented in advance of court authorization. But on the whole, it embeds significantly more stringent civil liberties safeguards than the White House–approved legislation passed by the Senate. Instead of changing the definition legal of "foreign intelligence" -- an important term appearing in a variety of complex statutes -- the bill carves out a special exemption, allowing intelligence agencies to acquire communications between specific overseas targets and person in the United States. The bill also requires the development of guidelines to prevent "reverse targeting" of Americans, to ensure that lenient FISA procedures cannot be used to circumvent the more stringent requirements that apply to ordinary criminal investigations. The FISA court must approve surveillance procedures in advance, and both the procedures and agencies' compliance with "minimization" guidelines designed to limit the unnecessary retention of Americans' communications are subject to review by the court and a independent Inspector General. It also incorporate's the Senate bill's "Wyden Amendment," providing protection for Americans abroad. Finally, the law is scheduled to sunset in two years, rather than the Senate bill's six.

Whether House Democrats will be able to succeed in pushing this legislation through is unclear. Senate Intelligence Committee Chair Jay Rockefeller (D-WV), whose support will be critical in getting any law passed, has said that "considerable work remains" before he will be prepared to support proposed reforms. Despite its similarity to the stalled RESTORE Act, though, House leaders may have pulled off a bit of clever political jujitsu by offering new legislation. Republicans had fought hard to frame the debate as a question of inaction, on the one hand, or passage of the Senate bill, on the other. The burden, Democrats presumably hope, will now shift to Republicans to explain why they cannot countenance the passage of "vital" legislation with a few extra safeguards and checks.

Filed Under: congress, fisa, immunity, president bush, surveillance

Businesses Prefer Not to Be Sued, Film at 11

from the public-private-'partnerships' dept

There's nothing up on its website about this yet, but the U.S. Chamber of Commerce has thrown its ample weight into the warrantless wiretapping fight, with a letter to the House of Representatives urging legislators to approve retroactive immunity for cooperative telecoms as part of changes to the Foreign Intelligence Surveillance Act. The letter, from the organization's VP for government affairs, R. Bruce Josten, argues:

The Chamber represents companies across various industries which own or operate vital components of the nation’s critical physical, virtual, and economic infrastructures. The federal government continually depends upon such industries for cooperation and assistance in national security matters, including homeland security programs and activities. The government also turns to these companies in times of crisis, when the speed, agility, and creativity of the private sector can be critical to averting a terrorist attack.

Therefore, the Chamber urges the House to consider S. 2248 and pass this bipartisan compromise legislation. The Chamber firmly believes that the immunity provisions in S. 2248 are imperative to preserving the self-sustaining “public-private partnership” that both Congress and the Executive Branch have sought to protect the United States in the post-September 11 world. The Chamber encourages you consider the effects on the nation’s security should private sector involvement be muted and relegated to the sidelines in instances when industries can help the government protect this nation.

In the 2006 election cycle, the Chamber gave $19,000 to Democratic candidates for the House and $76,500 to Republicans. Its contributions have been more evenly split in this cycle to date: $15,076 for Democrats and $16,500 to Republicans. Members in close races will therefore likely find the "urges" of the Chamber hard to ignore.

Filed Under: fisa, us chamber of commerce

Buildup To A Discharge: How Some Representatives Are Looking To Force A Vote On FISA

from the dont-follow-the-leader dept

Sources on the Hill report that, in the wake of last week's dust-up over surveillance reform in the House of Representatives, House Republicans are preparing to circulate a discharge petition, a mechanism that can be used to circumvent House leadership and move a bill directly to the floor to force a vote.

The Senate has already passed White House-supported legislation amending the Foreign Intelligence Surveillance Act to expand the government's power to eavesdrop on conversations with overseas parties without a warrant -- legislation that also includes a controversial provision providing retroactive immunity against civil suits to telecoms that gave the National Security Agency access to customer data without a court order. But House Speaker Nancy Pelosi (D-CA) has refused to schedule a vote on the House version of the Senate's bill.

Since, under House rules, that legislation is not subject to a discharge petition as currently engrossed, Reps. Vito Fossella (R-NY), Peter King (R-NY), and Pete Hoekstra (R-MI) have introduced their own version. They are currently gathering informal commitments from legislators while waiting out the 30-day time limit before a petition can be formally circulated.

Since discharge petitions are seen as a direct affront to leadership's control of the agenda, legislators are generally extremely reticent about signing them: The last time one was used successfully was in 2002, when it forced a vote on Shays-Meehan, the House version of the McCain-Feingold campaign reform law. Some members even have blanket policies against signing such petitions. And since they require a simple majority to become effective, Republicans would need to win over many of the conservative Blue Dog Democrats who have urged Pelosi to move forward with the Senate's version of the FISA bill. And even those willing to break with Pelosi on this issue may have qualms about slapping her in the face quite so overtly.

Instead of being directly used to force a vote, then, a source in the office of a Republican representative projects that the petition will be used to bring pressure directly to bear on Democratic members, and indirectly on the Democratic leadership. The latest assault in that pressure campaign came today in the form of a 24-style scare ad put out by the House Republican Conference, warning of impending terror attacks unless Democrats act quickly to reauthorize warrantless wiretaps.

Filed Under: congress, discharge petition, fisa

House Republicans Take Their Ball, Go Home In FISA Fight

from the so-THAT'S-what-a-spine-looks-like dept

It now appears all but certain that the stopgap Protect America Act, which Congress passed in August, will expire this weekend, despite dark warnings from the White House that this would create a parlous "intelligence gap" and stymie intelligence community efforts to track terrorists. House Republicans, led by Minority Leader John Boehner of Ohio, staged a walkout to protest Democrats' refusal to schedule an immediate vote on a bill approved in the Senate earlier this week enacting more permanent changes to the Foreign Intelligence Surveillance Act. Unlike the RESTORE Act passed in the House back in October, the Senate bill establishes only limited checks on warrantless surveillance of communications between Americans and foreigners, and includes a provision granting retroactive amnesty to telecoms charged with illegally providing customer data to the government without a court order.

Democrats are, for a change of pace, fighting back against charges that they are soft on security issues. Contra predictions of imminent doom, many are now pointing out that the practical effect of the PAA's lapsing is likely to be quite limited, as any surveillance authorized under the law can continue unabated for another six months. And for all the administration's dire forecasts, Democrats note that it was House Republicans who voted down a further temporary extension of the PAA in the shadow of a presidential veto threat, and the Republican leader in the Senate who blocked a bicameral conference on the bill, in hopes of forcing the immediate approval of the White House–endorsed Senate bill. In a letter to President Bush today, Senate Majority Leader Harry Reid, who had drawn the ire of progressives for his perceived compliance with White House demands, blasted what he characterized as the administration's "reckless attempt to manufacture a crisis over the reauthorization of foreign surveillance laws."

Filed Under: congress, fisa

Senate Approves Intelligence Reform And, With It, Telecom Amnesty

from the oversight-is-for-your-phone-calls dept

The Senate has just approved controversial legislation reforming the Foreign Intelligence Surveillance Act, by a vote of 68–29. The bill, sponsored by Sens. Kit Bond (R-MO) and Jay Rockefeller (D-WV), empowers the Director of National Intelligence and the Attorney General to authorize warrantless surveillance of foreign parties whose communications pass through U.S. switches, even when they are communicating with Americans. It also grants retroactive amnesty to telecom firms alleged to have illegally provided the government with access to their customers' data without a court order -- a provision some Democrats tried and failed to have stripped from the legislation earlier today.

Several other amendments that would have provided additional checks on surveillance also failed in the Senate, including language reasserting FISA's status as the "exclusive means" by which intelligence surveillance may be conducted, a provision barring indiscriminate "bulk collection" of telecom traffic, and a compromise measure that would have allowed civil suits against the telecoms to continue, but substituted the federal government as the defendant. The one victory for civil libertarians was the approval of an amendment offered by Sen. Sheldon Whitehouse (D-RI) permitting the secret FISA court to review intelligence agencies' compliance with "minimization" rules meant to limit the retention of communications involving innocent Americans. Following a vote to invoke cloture, bringing debate on the bill to a halt and foreclosing any attempt to mount a filibuster, Sens. Patrick Leahy (D-VT), Maria Cantwell (D-WA), Chris Dodd (D-CT) and Russ Feingold (D-WI) delivered impassioned speeches condemning the legislation as an affront to both privacy and the rule of law.

The Senate bill must now be reconciled in conference with the House version, known as the RESTORE Act, which lacks the controversial immunity provision and provides for greater judicial oversight of surveillance. Majority Leader Harry Reid (D-NV) is seeking to further extend the stopgap Protect America Act, which this reform bill is meant to supplant, in order to provide time to reach agreement between the two chambers.

Filed Under: fisa, intelligence, oversight, senate, telco immunity