Dianne Feinstein's Bragging About NSA Surveillance Program May Finally Result In It Being Declared Unconstitutional

from the ooops dept

This is quite an incredible story that's unfolding about a new opportunity for a Constitutional challenge to the FISA Amendments Act, which has enabled broad NSA surveillance. If you haven't been following the details (and even if you haven't been following all of this closely), the specifics may be a bit confusing, so we'll try to go piece by piece through the history here to explain the events leading up to a new Constitutional challenge being placed on the law, which the Supreme Court had previously effectively wiped out -- in large part due to false information presented by the Solicitor General, who now appears to be not at all happy the intelligence community led him to lie to the Supreme Court. And it may have all unravelled because of Dianne Feinstein's gloating and bragging about how important the FISA Amendments Act is.

First up: the FISA Amendments Act (FAA) was passed in 2008, after Congress claimed that the intelligence community was hamstrung in important areas of surveillance. Much of the debate over the law was focused on the fact that it gave telcos retroactive immunity for anything illegal they might have done regarding President Bush's warrantless wiretapping program, which was only revealed by the NY Times a few years earlier. But, even more important than that was that the FAA more or less authorized continued warrantless wiretapping by the intelligence community. In 2011, the FAA was up for renewal. Some in the Senate sought to use the distraction (that year) over the "debt ceiling" to sneak through an early renewal with no debate, and Senator Ron Wyden put a hold on it, demanding more answers about how many Americans were being spied on. He eventually lifted the hold in exchange for a one-year extension and a promised debate over the FAA.

Fast forward to the end of last year, with the FAA set to expire yet again, and Senate Intelligence Committee boss Dianne Feinstein, who had originally made that "deal" with Wyden, tried very hard to avoid having any debate. Eventually, at the very end of December, she allowed a brief debate, in which she showed up up to insist that the FAA had to be renewed or we'd all be at risk. As we noted at the time, her reasoning was somewhat laughable, where she held up a pretend piece of paper with a supposed "classified" reason for why the FAA was so important. Remember that speech, because it's going to become quite important a little later on in this story.

Parallel to all of this, there was a legal fight making its way through the courts, brought by the ACLU to challenge the Constitutionality of the FAA. The big question was whether or not the courts could be convinced that the ACLU had "standing" to sue, since it couldn't prove that it had been spied on directly. Eventually, in a narrow 5-4 decision, the Supreme Court said that the ACLU had no standing. Of course, the key thing that had concerned the Justices the most was the simple question: if the program is secret, then could anyone ever challenge the Constitutionality of the program?

Solicitor General Donald Verrilli, who argued the case on behalf of the government, told the Supreme Court that of course people could have standing to challenge the law, and that the government would be required to inform defendants in cases where such information was used that it was collected under the FAA. This point is what pushed the Supreme Court over the edge to rule against the ACLU. As they noted in the majority decision:

...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure.... In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Okay, now the law has been in place since 2008. If what Verrilli said was true, then, um, shouldn't there have been some cases between now and then where the FAA-enabled wiretapping was used? And if that's true, then it should have been disclosed in the various cases. Except, there is no case on record where it had been disclosed.

Right, so now we jump back to Feinstein's grandstanding about why we need to keep the FAA. In her speech on the floor, she announced that the FAA was necessary in a long list of cases:

"I've asked the staff to compile arrests that have been made in the last four years in America on terrorist plots that have been stopped. And there are 100 arrests that have been made since 2009 and 2012. There have been 16 individuals arrest just this year alone. Let me quickly just review what these plots were. And some of them come right from this program. The counterterrorism come and the information came right from this program. And again, if Members want to see that they can go and look in a classified manner.

[proceeds to list out eight "examples" of terrorism arrests -- two with names, six are just general descriptions of plots]

... and it goes on and on and on. So this has worked. And you know, as the years go on, the intelligence becomes the way to prevent these attacks. Now that the FBI has geared up a national security unit, they've employed 10,000 people and information gained through programs like this, through other sources as well, is able to be used to prevent plots from happening. So in four years 100 arrests to prevent something from happening in the United States, some of which comes from this program. So I think it's a vital program.

The lawyers for the defendants in the two named cases suddenly recognized an issue. They were named in this list, but at no point had they been told that evidence was gathered under this program. So they asked. And... the government refused to tell them the details. The NY Times took notice of this, pointing out that either Feinstein lied in her Senate statement or Verrilli lied to the Supreme Court:

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

To his credit, it appears that once this all became clear, Verrilli had a crisis of conscience, suggesting that he did not knowingly lie to the Supreme Court, but honestly believed that the DOJ would reveal its use of these programs in cases. From that new NY Times piece by Charlie Savage, it's reported that Verrilli was pretty angry about being misled and demanded some answers:

As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

Either way, Verrilli followed through on this, and apparently kicked off a major "internal debate" over whether or not there was "any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search." According to the article, Verrilli "argued that withholding disclosure from defendants could not be justified legally." Eventually, even the NSA and FBI's lawyers and James Clapper's office agreed. The decision was made to start revealing this information going forward.

However, they also agreed to reveal to at least one defendant that the FAA was used to collect evidence against them, and that this had not been revealed. Of course, this means they get to cherry pick the "right" case.

The ACLU, however, is not waiting around. Almost immediately, it filed a case about this, arguing that the government had illegally hidden this information in response to a FOIA request. It seems like that may be the most obvious procedural way of re-raising this question, as I have no idea if there's some way for the ACLU to directly petition the Supreme Court to reopen the case, noting that the key piece of information the Justices relied on to make their ruling was false (though, apparently, from a Solicitor General who had been misled by prosecutors).

Now, to wrap this all up, we bring it back around to Feinstein's speech in the Senate. Remember, the whole point of her speech was to directly argue for the reapproval of the FAA. And while she equivocated a few times in describing what programs were responsible for the arrests, she clearly made references to "this program" working. However, when the lawyers for one of the defendants named by Feinstein asked the Senate Intelligence Committee for some clarification, Morgan Frankel, a Senate Intelligence Committee lawyer, responded by arguing that Feinstein wasn't actually referring to the FAA program. Seriously.

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and she did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including Mr. Daoud's case, in which terrorist plots had been stopped. Rather, the nine cases the Chairman sumamrized were drawn from a list of 100 arrests arising out of foiled terrorism plots in the United States between 2009 and 2012 compiled by the staff from FBI press releases and other public sources.

[....] To summarize, nothing in Senator Feinstein's remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud's case or in any of the other cases specifically named. Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack." Thus, because Senator Feinstein was neither relying on, nor attempting to convey, any information about the use or non-use of FAA authorities in any of the nine cases, there are no "assessments, reports, and other information" in the Committee's possession to which Senator Feinstein referred in her comments, pertaining to FAA surveillance with respect to Mr. Daoud's case.

Did you get that? So, what they're now saying is that Senator Feinstein went to the floor of the Senate to argue strongly in favor of renewing the FAA, and she named a bunch of cases, clearly stating that this program was necessary because of those cases -- but she didn't mean to imply that it was ever actually used in any of those cases. And, in the meantime, we now find out that even in cases where it has been used, no one's been told about it, despite the law requiring defendants to be told -- and the Solicitor General telling the Supreme Court they would be told.

So, it appears that both Verrilli and the Supreme Court got duped by the intelligence community, while Feinstein clearly misled the Senate and the American public by pretending that the FAA had been used to stop terrorism, but when called on it, now pretends she meant no such thing. Thankfully, however, her attempt at misleading the public by bragging about these arrests may have now (finally) kicked off the legal rationale for a case to prove that the FAA is, in fact, unconstitutional.

Filed Under: constitutional, dianne feinstein, donald verrilli, faa, fisa amendments act, nsa, nsa surveillance, standing

Internet Companies Argue A 1st Amendment Right To Correct False Reports On NSA Spying, Despite Gag Orders

from the fighting-the-fight dept

A week and a half ago, we noted that the intelligence community and the big internet companies (Google, Microsoft, Yahoo and Facebook) had failed to come to an agreement that allowed the tech companies to publish the details on how many requests FISA court orders they get and how many of their users this impacts. Given that, the various companies made it clear that this fight would continue in court. Today, they filed very similar briefs, which you can see below, claiming a few key things:

1. The various public reports from The Guardian, The Washington Post (and others, including Gawker) are flat out wrong concerning the nature of these companies' involvement with the NSA.
2. Because of the gag order on FISC orders under Section 702 of the FISA Amendments Act, the tech companies are barred from correcting the record, which is tremendously harmful to them and their business prospects.
3. They have a First Amendment right to give out information on how many such requests they receive, and how many users those requests have impacted.
4. Doing so would have no harmful impact on national security.

That seems to be the basic argument, and it's a strong one. The Google and Yahoo filings, in particular, don't hold back in terms of how ridiculous this whole situation is, in which they're accused of doing something and are barred due to a nebulous gag order from proving that they didn't actually do it. Some of the requests also note that the court's hearings over these challenges should also be held in public. As Google's filing notes:

Google further requests that the Court hold oral argument on this amended motion and that the argument be open to the public.. A public argument would be consistent with this Court's rules, which state that "a hearing in a non-adversarial matter must be ex-parte and conducted within the Court's secure facility," suggesting, by negative implication, that a hearing in an adversarial matter shall be open..... It is also required by the First Amendment, which generally protects a right of public access to judicial proceedings.

I imagine we'll be hearing about this case for quite some time....

Filed Under: 1st amendment, 702, first amendment, fisa amendments act, gag orders, nsa, nsa surveillance
Companies: facebook, google, microsoft, yahoo

Feds Had Court Reverse Ban On Warrantless Searches On Americans Because 'We Wanted To Be Able To Do It'

from the that-whole-4th-amendment-mean-anything-to-you? dept

Last month, we wrote about the revelation of the infamous backdoor search loophole that allowed the NSA to run searches on the communications of Americans without a warrant, just so long as they collected them under another program -- the so-called 702 program of the FISA Amendments Act, which sucks up a large amount of communications, based on some very broad definitions of words like "target" and "relevance." We noted that this was due to a "rule change" in 2011, but the details of that change weren't entirely clear... until now.

The Washington Post has the story (along with the recently released -- though heavily redacted -- FISA Court ruling about the NSA lying to the court) that shows that back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was told, issuing a ruling allowing them, despite the fact that it's almost certainly a major 4th Amendment violation. The Obama administration's reasoning? As noted below, a chief administration lawyer explains: "We wanted to be able to do it." The "it" there, for clarification, is run warrantless searches on tons of communications (not just metadata) collected from Americans.

What's a little surprising is that I'm pretty sure I called some of this back in June, the day after the first Snowden leak came out, when I pointed out that the NSA likely defines "target" not to mean just the person that they're targeting, but rather the entire investigation. So as long as the goal of the collection was to "target" a particular non-American situation, anything can be collected, and then it can be searched at will without a warrant. Apparently, this includes somewhere on the order of 250 million communications per year.

What's astounding is that Robert Litt, the general counsel for the Office of the Director of National Intelligence, seems kind of proud of the fact that they got this backdoor loophole:

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Um. "We wanted to be able to do it" is not exactly a valid reason for violating the clear language of the 4th Amendment. I'm sure plenty of government officials "wanted to be able to do" all sorts of illegal things like throw political foes in jail for dissent, or shut down newspapers for writing things they don't like. But we don't allow it because the Constitution says you can't do that.

But Litt just can't help himself, he's so proud of violating the 4th Amendment.

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

The duplicity here is incredible. First, they redefine "target" to allow them suck up American's communications without a warrant, despite the fact that this is expressly prohibited. Then, to ignore the official minimization rules that bar them from looking at any communications that involve Americans, they have a court say "oh fine" and overturn a clear rule that says they can't look at those communications, and Litt doesn't see the problem? Most people would argue (a) the original collection was not, in fact lawful and (b) even if it was lawful to collect, over and over again for the past few months, government officials have insisted that they are careful to make sure searches on Americans don't happen. Yet, now he nonchalantly waves off the issue as being "of course" they search that information because he thinks it's "lawfully collected" despite being almost directly against the plain language of both the law and the Constitution? Wow.

Oh, and as a "bonus" they appear to have tossed in the ability for the NSA to keep Americans' communications for six years, rather than five. Note, of course, that over the past few months, the NSA and its defenders have continued to trot out the five year claim, even though this ruling makes it clear that the timeline had actually been extended to six. So, yet another lie to top it all off.

And, while most of the outrage should be directed at the Obama administration, mainly in the form of Litt and James Clapper who pushed for this, some of it also should be directed at the chief judge of the FISA Court at the time, John Bates, who signed off on this "rule change." Once again, it seems that the administration and the NSA's defenders keep claiming one thing, and only later, as it's pointed out that the opposite is true, do they say something like "oh, yeah, well of course we do that..."

Filed Under: 4th amendment, backdoor loophole, fisa amendments act, nsa, nsa surveillance, prism, robert litt, section 702, warrants

James Clapper Says Feds Will Start Releasing Some FISA And NSL Metadata, But Not The Kind That Matters

from the it's-just-metadata... dept

We were just mocking the government's position that it cannot reveal the "metadata" on the numbers of FISA orders (and the number of people impacted) when those same people insist that we shouldn't worry about many NSA surveillance programs since they're "just metadata." And, now, the Director of National Intelligence has said that it will begin releasing some metadata on some key programs that had been secret before:

Specifically, for each of the following categories of national security authorities, the IC will release the total number of orders issued during the prior twelve-month period, and the number of targets affected by these orders:

• FISA orders based on probable cause ( Titles I and III of FISA, and sections 703 and 704).
• Section 702 of FISA
• FISA Business Records (Title V of FISA).
• FISA Pen Register/Trap and Trace ( Title IV of FISA)
• National Security Letters issued pursuant to 12 U.S.C. &sec; 3414(a)(5), 15 U.S.C. &sec;&sec; 1681u(a) and (b), 15 U.S.C. &sec; 1681v, and 18 U.S.C. &sec; 2709.

Our ability to discuss these activities is limited by our need to protect intelligence sources and methods.

For what it's worth this is a step forward -- and something the government should have done ages ago, but perhaps not nearly as big as Clapper would like everyone to believe. Note that they only say they'll reveal the number of "targets" rather than people impacted. Given that each person "targeted" may lead to scooping up records on many, many others, this seems fairly weak. Remember, for a "target" they can scoop up all kinds of records, and then go three hops deep. So, one target could impact thousands or possibly hundreds of thousands (or even millions) of people. This is a baby step forward, but it still seems designed to mislead.

Filed Under: 702, fisa, fisa amendments act, intelligence community, james clapper, metadata, national security letters, nsls

How Could Dianne Feinstein Not Have Seen The Report Laying Out NSA Abuses?

from the and-yet-push-to-renew-the-law? dept

We already mentioned this in our initial post about Barton Gellman's incredible Washington Post expose on NSA abuses, but one of the many astounding revelations was the claim that Senator Dianne Feinstein, the head of the Senate Intelligence Committee and the primary defender of the programs in the Senate, who has always tried to block or shut down any debate over these provisions, claims that she was unaware of the Inspector General's report that highlighted thousands of abuses:

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.), who did not receive a copy of the 2012 audit until The Post asked her staff about it, said in a statement late Thursday that the committee “can and should do more to independently verify that NSA’s operations are appropriate, and its reports of compliance incidents are accurate.”

First of all, any statement from Feinstein arguing that her own committee should do more oversight of the NSA is startling. Remember, this is the same Senator who, during that debate over this program last year, ridiculously announced that she was going to wave the paper with the "secret" reason for why the program had to be renewed.

"I'd like to just show that classified letter, if I might. It's classified, so I can't read it to you. I don't happen to have it here, but as soon as someone brings it, I will wave it for a moment so that you see it."

And yet, now she's claiming that she never saw the required Inspector's General report that detailed all of these abuses? It's not as if the existence of this report was a secret. The Justice Department issued a public announcement last November 7th, stating that this report had been completed. And, there had been some public discussion about the classified report, because (at the very least) both Steven Aftergood and Julian Sanchez have filed FOIA requests on the document. In Sanchez's case, you may recall, he'd actually filed a FOIA request for an earlier version of the report -- again, whose existence was public knowledge -- and the DOJ told him it couldn't even confirm the existence of the report. While they later admitted that was an error, they still never delivered the document to Sanchez.

Towards the end of last year, Sanchez regularly made the point that it was ridiculous that this report, which had direct information pertaining to the FISA Amendments Act, and any abuses would remain classified throughout the period of time in which Congress was debating its renewal.

And now we're supposed to believe that Senator Feinstein had not seen this report? The report that directly assessed whether or not the program that she was the major proponent of, and whose oversight she was in charge of, had been abused? It seems rather obvious that Feinstein is either lying or incompetent here. The most charitable response would be that she or her staff didn't actually understand what it was Gellman had asked, when he talked about the report, but even that is tough to believe.

As such, her response that her own committee needed to "do more" seems even more ridiculous. If we take her at her word, it would seem that "do more" would mean at least reading the freaking review of the very program you were defending and renewing to see the details of the program's abuse... How can the Senate allow her to remain in charge of this committee when by her own public admission she didn't even look at a key report over what she insisted was the key program they were renewing last year?

Filed Under: abuse, dianne feinstein, fisa amendments act, inspector general's report, nsa, nsa surveillance, senate intelligence committee

NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment

from the legal-loopholes dept

We already wrote about the bombshell revelation from the Guardian that the NSA changed the rules in October of 2011, so that it had permission to do warrantless searches on US persons (contrary to public claims). However, Marcy Wheeler recognized the date of that update is the very same date that the FISA court supposedly smacked down the NSA for violating the 4th Amendment with some searches.

If you don't recall, about a year ago, under pressure from Senator Wyden, the US government admitted (late on a Friday evening) that, indeed, the FISA court had "on one occasion" ruled that certain activities concerning Section 702 "minimization" (i.e., trying to avoid searches on US persons) were "unreasonable under the Fourth Amendment." And yet, that very same day, the NSA announced that the rules had changed and it could do searches on US persons, following a certain (undisclosed) "oversight process." Wheeler notes that the NSA seems to have interpreted the FISA court smacking it down for spying on Americans as a form of permission to spy on Americans:

The FISC Court didn't just "approve" minimization procedures on October 3, 2011. In fact, that was the day that it declared that part of the program violated the Fourth Amendment.

So where the glossary says minimization procedures approved on that date "now allow" for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate "an effective oversight process," even while approving the idea in general.

And note that FISC didn't, apparently, require that ODNI/DOJ come back to the FISC to approve that new "effective oversight process."

Wheeler goes further, providing details from the discussion in the Senate Intelligence Committee during the debate over reauthorizing the FISA Amendments Act (which is where 702 comes from), in which it was strongly hinted that the FISA court had "concerns" about this very type of backdoor searching, and despite acknowledging this, no one bothered to close that backdoor. In fact, it now appears that the NSA and the Director of National Intelligence may have used all of this as a cover to argue that they are authorized to do these kinds of searches.

Filed Under: 4th amendment, faa, fisa amendments act, fisa court, fisc, nsa, nsa surveillance, searches, section 702, surveillance

Loophole Shows That, Yes, NSA Has 'Authority' To Spy On Americans -- Directly In Contrast With Public Statements

from the and,-another-one dept

Right, so remember that claim yesterday from Barack Obama about how there is no domestic surveillance program? And remember in our post we noted that such a statement might come back to bite him, seeing that Snowden had leaked somewhere between 15,000 to 20,000 more documents to Glenn Greenwald and somewhere in there, it seemed like there was a decent chance there was evidence that Obama was lying? Right, so, funny story... this morning, James Ball and Spencer Ackerman over at the Guardian have published the details of a neat little loophole that does, in fact, give the NSA "authority" to run searches on Americans without any kind of warrant. This is due to a "rule change" in 2011. The focus here is on Section 702 under the FISA Amendments Act, which is the authority that the PRISM program is under. Ever since the initial leaks, the defenders of the NSA have repeatedly stated that 702 only applies to non-US citizens who are outside the US. But as the "update" above notes, there was a change to the rules in late 2011 which allows for queries on US persons. As Senator Wyden told the Guardian, this "loophole" now directly allows "warrantless searches for the phone calls or emails of law-abiding Americans."

This also seems reminiscent of our point on Wednesday, in which we noted that every time the NSA is asked about its ability to spy on everyone, it answers about its authority. And, here's evidence that it has clearly been given the "authority" to spy on Americans, contrary to the very clear language of the law.

Also, the timing of this seems interesting. Earlier, we'd noted that the NSA's massive data collection program, Stellar Wind, had been shut down in 2011. And... right about that time suddenly a new law is put in place allowing 702 searches to happen on US persons? I'm sure that's just a complete coincidence...

Filed Under: 702, backdoor searches, domestic surveillance, faa, fisa amendments act, loophole, nsa, nsa surveillance, ron wyden, surveillance, us persons

Rep. Rush Holt Bill To Repeal PATRIOT And FISA Amendments Acts Now Live, Ambitious

from the overkill-far-preferable-to-underkill dept

NJ Rep. Rush Holt announced back on July 11th that he was planning legislation to repeal both the PATRIOT Act and the FISA Amendments Act. The text of Holt's bill, the "Surveillance State Repeal Act," has been posted, along with a summary of the key aspects of the legislation.

Holt's bill covers a lot of ground for something that only runs about 8 pages long, and as promised, some additional protection for whistleblowers is built in. Here's the summary:

The Surveillance State Repeal Act would:

1. Repeal the PATRIOT Act (which contains the telephone metadata harvesting provision).

2. Repeal the FISA Amendments Act (which contains the email harvesting provision).

3. Ensure that any FISA collection against a US Person takes place only pursuant to a valid warrant based on probable cause (which was the original FISA standard from 1978 to 2001).

4. Retain the ability for government surveillance capabilities to be targeted against a specific natural person, regardless of the type of communications method(s) or device(s) being used by the subject of the surveillance.

5. Retains provisions in current law dealing with the acquisition of intelligence information involving weapons of mass destruction from entities not composed primarily of U.S. Persons.

6. Prohibit the government from mandating that electronic device or software manufacturers build in so-called “back doors” to allow the government to bypass encryption or other privacy technology built into said hardware and/or software.

7. Increase the terms of judges on the Foreign Intelligence Surveillance Court (FISC) from seven to ten years and allow their reappointment.

8. Mandate that the FISC utilize technologically competent Special Masters (technical and legal experts) to help determine the veracity of government claims about privacy, minimization and collection capabilities employed by the US government in FISA applications.

9. Mandate that the Government Accountability Office (GAO) regularly monitor such domestic surveillance programs for compliance with the law, including responding to Member requests for investigations and whistleblower complaints of wrongdoing.

A couple of aspects worth noting: First, while the entirety of the PATRIOT Act is repealed, portions of the FISA Amendments Act remain unchanged, specifically Sections 103 and 110.

Section 103 requires the Attorney General to forward a copy of any "decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act," along with any related documents, within 45 days of the decision. This is a key part of the oversight process and should probably be retained, although it also retains the right of the Director of National Intelligence to redact as much of these required documents as he sees fit (for "national security" reasons, of course).

Section 110 deals with weapons of mass destruction, as is noted in Holt's summary of the bill.

I'm not sure what extending the FISC judges' terms from 7 to 10 years and allowing for reappointment is supposed to accomplish, unless the hope is that in the future, there will be more diversity in court makeup (currently only one judge does not lean Republican) and that better judges will be retained longer. Hopefully, the addition of "Special Masters" to act in a somewhat adversarial role (or at least call "bullshit" on egregiously false claims) will result in less of a "rubber stamp" process.

The summary doesn't really address the whistleblower protections, other than the last sentence of point 9, which doesn't explain much. The wording in the bill is as follows:

SEC. 9. WHISTLEBLOWER COMPLAINTS.

(a) AUTHORIZATION TO REPORT COMPLAINTS OR INFORMATION.--An employee of or contractor to an element of the intelligence community that has knowledge of the programs and activities authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may submit a covered complaint--

(1) to the Comptroller General of the United States;
(2) to the Permanent Select Committee on Intelligence of the House of Representative
(3) to the Select Committee on Intelligence of the Senate; or
(4) in accordance with the process established under section 103H(k)(5) of the National Security Act of 1947 (50 U.S.C. 3033(k)(5)).

(b) INVESTIGATIONS AND REPORTS TO CONGRESS.--The Comptroller General shall investigate a covered complaint submitted pursuant to subsection (b)(1) and shall submit to Congress a report containing the results of the investigation.

(c) COVERED COMPLAINT DEFINED.--In this section, the term ''covered complaint'' means a complaint or information concerning programs and activities authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that an employee or contractor reasonably believes is evidence of--

(1) a violation of any law, rule, or regulation; or
(2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

SEC. 10. PROHIBITION ON INTERFERENCE WITH REPORTING OF WASTE, FRAUD, ABUSE, OR CRIMINAL BEHAVIOR.

(a) IN GENERAL.--Notwithstanding any other provision of law, an officer or employee of an element of the intelligence community shall be subject to administrative sanctions, up to and including termination, for taking retaliatory action against an employee of or contractor to an element of the intelligence community who seeks to disclose or discloses covered information to--

(1) the Comptroller General;
(2) the Permanent Select Committee on Intelligence of the House of Representatives;
(3) the Select Committee on Intelligence of the Senate; or
(4) the Office of the Inspector General of the Intelligence Community.

(b) DEFINITIONS.--In this section:

(1) COVERED INFORMATION.--The term ''covered information'' means any information (including classified or sensitive information) that an employee or contractor reasonably believes is evidence of--

(A) a violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

This offers better whistleblower protection, especially in terms of guarding against retaliatory actions. Unfortunately, this won't protect whistleblowers like Snowden, who quit of his own accord (eliminating the chance of retaliatory action) and is now facing espionage charges. Providing several routes for whistleblowers to take helps, but if anyone above these routes objects to the whistleblower (and is outside the "intelligence community" -- like the administration itself), the built-in protections of this legislation are nullified. (Of course, the same could be said about any legislation protecting whistleblowers, once the administration steps in. And I'm sure most officials won't consider "investigating" a whistleblower to be a "retaliatory" action, no matter how intrusive or destructive the outcome.)

Does this legislation have a chance? Rep. Amash's attempt to defund parts of the NSA's surveillance efforts lost by a handful of votes, but did prove that there was bipartisan support for dialing back the NSA's power. This is an even longer shot, and may be too aggressive to gain as much support as Amash's amendment. Of course, there will be a whole lot of rewriting going on before this ever gets to a vote, so the broad reach of this bill may be scaled back into something with better support without (hopefully) losing all of its bite.

Filed Under: fisa amendments act, nsa, nsa surveillance, patriot act, repeal, rush holt

Senator Wyden: Public Has Been Actively Mislead By Government Officials Over Surveillance

from the indeed dept

While some Senators are insisting that we need to keep going with NSA surveillance and just trust them that the NSA and FBI aren't abusing the law and the information they have access to, others are pointing out that it's a lot of hogwash. Senator Ron Wyden, who has been leading the charge against these programs for years (and was mostly ignored for that effort), gave a great speech describing how defenders of the program are directly choosing to mislead the American public. A key point, though it comes late in the speech, is the following:

The public was not just kept in the dark about the Patriot Act and other secret authorities. The public was actively misled.

Most of the speech is detailing exactly how that happened, and the distortions defenders of the program try to tell the American people and why they're wrong. We'll highlight a few, but reading or watching the whole speech is worthwhile.

He notes that he warned, quite specifically (and publicly) that when the American public found out how the laws were being interpreted, they would be surprised. That, clearly, proved accurate:

When the Patriot Act was last reauthorized, I stood on the floor of the United States Senate and said “I want to deliver a warning this afternoon. When the American people find out how their government has interpreted the Patriot Act, they are going to be stunned and they are going to be angry.” From my position on the Senate Intelligence Committee, I had seen government activities conducted under the umbrella of the Patriot Act that I knew would astonish most Americans.

Furthermore, he points out that officials chose to directly mislead the American public.

If that is not enough to give you pause, then consider that not only were the existence of and the legal justification for these programs kept completely secret from the American people, senior officials from across the government were making statements to the public about domestic surveillance that were clearly misleading and at times simply false.

The misleading statements from the officials are based on how the government interprets the law as compared to how the public actually reads the law:

...there are effectively two Patriot Acts the first is the one that they can read on their laptop in Medford or Portland, analyze and understand. Then there’s the real Patriot Act the secret interpretation of the law that the government is actually relying upon. The secret rulings of the Foreign Intelligence Surveillance Court have interpreted the Patriot Act, as well as section 702 of the FISA statute, in some surprising ways, and these rulings are kept entirely secret from the public. These rulings can be astoundingly broad. The one that authorizes the bulk collection of phone records is as broad as any I have ever seen.

And, of course, such a situation is clearly anti-democratic:

Without public laws, and public court rulings interpreting those laws, it is impossible to have informed public debate. And when the American people are in the dark, they can’t make fully informed decisions about who should represent them, or protest policies that they disagree with. These are fundamentals. It’s Civics 101. And secret law violates those basic principles. It has no place in America.

Furthermore, Wyden digs into the ridiculous claim by defenders of the NSA -- including from President Obama, Senator Feinstein and NSA boss Keith Alexander -- that there is sufficient "oversight" in these programs because others in the government review them. That, of course, is ridiculous:

...when James Madison was attempting to persuade Americans that the Constitution contained sufficient protections against any politician or bureaucrat seizing more power than that granted to them by the people, he did not just ask his fellow Americans to trust him. He carefully laid out the protections contained in the Constitution and how the people could ensure they were not breached. We are failing our constituents, we are failing our founders, and we are failing every brave man and woman who fought to protect American democracy if we are willing, today, to just trust any individual or any agency with power greater than the checked and limited authority that serves as a firewall against tyranny.

As for the claims by defenders that the business records collection is no different than a grand jury subpoena, Wyden rightly calls bullshit on that:

For years, senior Justice Department officials have told Congress and the public that the Patriot Act’s business record authority which is the authority that is used to collect the phone records of millions of ordinary Americans is “analogous to a grand jury subpoena.” This statement is exceptionally misleading it strains the word “analogous” well beyond the breaking point. It’s certainly true that both authorities can be used to collect a wide variety of records, but the Patriot Act has been secretly interpreted to permit ongoing bulk collection, and this makes that authority very, very different from regular grand jury subpoena authority. Any lawyers in here? After the speech is over come up and tell me if you’ve ever seen a grand jury subpoena that allowed the government on an ongoing basis to collect the records of millions of ordinary Americans. The fact is that no one has seen a subpoena like that is because there aren’t any. This incredibly misleading analogy has been made by more than one official on more than one occasion and often as part of testimony to Congress. The official who served for years as the Justice Department’s top authority on criminal surveillance law recently told the Wall Street Journal that if a federal attorney “served a grandjury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”

Going even further, he trashes the claims that this is all okay because intelligence officials tell Congress "the truth" behind closed doors in classified sessions. As he notes, this means that they're lying to the public, and that's not right:

Sure, members of Congress COULD get the full story in a classified setting, but that does not excuse the practice of half truths and misleading statements being made on the public record. When did it become all right for government officials’ public statements and private statements to differ so fundamentally? The answer is that it is not all right, and it is indicative of a much larger culture of misinformation that goes beyond the congressional hearing room and into the public conversation writ large.

And all of this spying and deceit has a very real impact on our democracy:

James Madison, the father of our constitution, said that the the accumulation of executive, judicial and legislative powers into the hands of any faction is the very definition of tyranny. He then went on to assure the nation that the Constitution protected us from that fate. So, my question to you is: by allowing the executive to secretly follow a secret interpretation of the law under the supervision of a secret, nonadversarial court and occasional secret congressional hearings, how close are we coming to James Madison’s “very definition of tyranny”? I believe we are allowing our country to drift a lot closer than we should, and if we don’t take this opportunity to change course now, we will all live to regret it.

Democracy isn't electing officials to lie to the public while enabling the vast intelligence community to spy on everyone via secret court orders. It's time that the public spoke up and made it clear to our elected officials that this is not what we signed up for at all.

Filed Under: dianne feinstein, fisa amendments act, james clapper, keith alexander, nsa surveillance, patriot act, ron wyden

NJ Congressman Rush Holt Is Attempting To Repeal The Patriot Act And FISA Amendments Act

from the incremental-improvement-is-off-the-table dept

Just recently, we discussed Rep. Justin Amash's plan to defund the NSA through an amendment to the defense appropriations bill working its way through the House. At this point, I would normally say "following on the heels of that news," but in this case, Rep. Steve Rush Holt!!! of New Jersey made his announcement on the 11th, while Amash's arrived on the 15th.

Holt's news? A plan to repeal two laws notorious for their encroachments on civil liberties.

Soon, I will introduce legislation that would repeal the laws that brought us our current “surveillance state”: the Patriot Act and the FISA Amendments Act. My bill would restore the probable cause-based warrant requirement for any surveillance against an American citizen being proposed on the basis of an alleged threat to the nation.

As a bonus, Holt is also proposing "genuine legal protections" for whistleblowers, a big step up from the current climate in which whistleblowers are persecuted and prosecuted.

Holt's editorial/announcement, which appeared in the Asbury Park Press, details how the NSA collects and retains data without warrants, providing special "dispensation" for those who circumvent the normal routes.

The Electronic Frontier Foundation, analyzing how the National Security Agency is apparently utilizing this data, said on its website: “In sum, if you use encryption they’ll keep your data forever. If you use Tor, they’ll keep your data for at least five years. If an American talks with someone outside the U.S., they’ll keep your data for five years. If you’re talking to your attorney, you don’t have any sense of privacy. And the NSA can hand over your information to the FBI for evidence of any crime, not just terrorism.

These two acts have resulted in agencies that are long on data and short on accountability. This situation is a direct result of administrations and legislators in thrall to a calculus of fear that has persuaded them to exchange liberty for safety despite being completely unable to guarantee their end of the bargain. Holt quotes Alexander Hamilton to make this point:

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

And that's where we are today -- more than a decade removed from the event that resulted in the PATRIOT Act and seeing nothing but continual escalation and expansion of government incursion on our rights and privacy. Instead of spending the last 12 years attempting to find a balance, our elected officials (and the agencies under their purview) have chosen to see how far they could push before meeting resistance. Repealing these two laws completely may be excessive (or more negatively, impossible), but finding a balance is much easier when you start from a clean slate, rather than attempting to inch back miles of overreach until the scale settles.

Minor update: Eric Hellman points out that Rush Holt is in the middle of a Senate race, which means NJ voters have a chance to (somewhat indirectly) cast their vote on these two laws.

Filed Under: 4th amendment, fisa amendments act, nsa, nsa surveillance, patriot act, repeal, rush holt