Your Tax Dollars At Work: 1,000-Page Funding Bill Dropped On Senate Floor One Hour Before Vote

from the instant-sausage dept

The legislative sausage-making process is apparently so streamlined that many sausage-makers are barely involved in the process. It's not that they don't want to be. It's that other sausage-makers want their product to be pushed out the door with a minimum of inspection.

Senator Mike Lee posted a video to his Facebook page that contained a rather graphic depiction of expeditious sausage-making. As his printer whirred away behind him, Lee noted that a $47-billion, 1,033-page transportation funding bill was up for a vote. In less than an hour.

If I don't have time to read legislation before voting on it, my default vote is no. We received the highway bill today at 3:06 p.m., and it is over 1,000 pages long. Our first vote on this legislation is scheduled for 4:00 p.m.

The bill -- which failed to obtain the number of votes needed to open debate -- was a bipartisan effort (led by Barbara Boxer [D] and Mitch McConnell [R]). That's probably the best thing that can be said about it and the legislators behind it. Rather than prove lawmakers can occasionally put aside their differences and actually move forward with the business of legislating, this bill simply signals that both sides of the aisle are willing to resort to bullshit tactics.

The bill arrived at the last minute because the effort itself was last minute. Federal highway aid to states is up against a July 31st expiration deadline. Despite its length, the bill is still far from finished. It takes money from a variety of unrelated programs to fund federal aid for the next three years. The problem is the bill authorizes spending for the next six years. That's the other reason the bill's champions were hoping to shove this through with a minimum of debate: the bill leaves it up to the next Senate class to figure out where it's going to get the other $45-60 billion it will need to keep the federal aid flowing.

Fortunately, most senators were angered by this last-minute page dump.

Sen. Charles Schumer of New York, the No. 3 Democratic leader, said, "I can't remember a time where I have been asked in all my years in the Congress to vote yes ahead of time on a bill we haven't seen, and there are no amendments" allowed.

Sen. Richard Blumenthal, D-Conn., called the bill "a black hole." He said Democrats have been told changes have been made to auto, trucking and rail safety provisions that were agreed to last week on a party-line vote by the Senate commerce committee, but no details were provided before the vote. Some Democrats have described the provisions as giveaways to industry that would undermine safety.

Schumer is certainly exaggerating. While the very specific facts of this legislative effort may indeed be unique, shoving under-scrutinized bills past legislators is something of a tradition in Washington. PATRIOT Act, anyone? It took until June of 2014 before many lawmakers realized the extent of what they had authorized in 2001. The recording industry pushed through a favorable law change at literally midnight back in 1999. PoliceStateUSA points out that John Boehner dropped a gun control law on the floor when only 10 legislators (out of 435) were on hand to vote. Just recently, the aforementioned Mitch McConnell put a "no questions asked" Section 215 reauthorization bill up for a vote, using his powers as a majority leader to bypass all the hoops the USA Freedom Act was made to jump through.

Anything that might be debated heatedly often arrives at a moment when debate is least likely to occur. Thursday afternoons as legislators are all packing up to return to their homes. Late nights when few lawmakers are left in the building. Or -- like this one -- hundreds of pages of legalese released to voting members shortly before a scheduled vote.

And, in this case, the bill arrives with a bit of extortion attached. Senators who refuse to vote for something they haven't read face the prospect of dealing with angry locals whose federal aid has just expired. Far too often, legislators allow everything to reach the brink of collapse before making a move. There's not a person out there who thinks the best laws are made at the last minute. No one wants poorly-written funding programs that hobble other sectors in a short-sighted attempt to balance the books for the very immediate future. Even if this manages to make it out alive, it still only "fixes" everything for half of the time period authorized by the bill. So, in three years, there will be another last-minute attempt to secure funding, and it will be any other funding legislators feel is at least temporarily expendable that will be forced to patch up funding holes left by the last Senate session.

Sometimes, the sausage doesn't even get made. Instead, a bunch of random ingredients are shoved into a casing and passed off as a finished product. And it's the public that's forced to "eat" this sausage -- both in terms of the asking price, as well as any nasty side effects consumption of the poorly-made sausage may cause.

Filed Under: barbara boxer, chuck schumer, funding bill, highway funding, mike lee, mitch mcconnell, politics, senate, traffic, transparency

Two Of The Most Ridiculous Statements From Senators At Yesterday's Encryption Hearings

from the these-people-are-in-charge? dept

We already wrote a bit about the two Senate hearings that FBI Director James Comey participated in yesterday, concerning his alleged desire to have a "discussion" about the appropriateness of backdooring encryption. The phrase tossed around at the hearings was about the FBI's fear of "going dark" in trying to track down all sorts of hypothetical bad guys (and it always was hypothetical, since no actual examples were given). However, not all of the crazy statements came from Comey. There was plenty of nuttiness from Senators as well. It is, of course, difficult to pick out the most ridiculous, so here are two that stood out to me, personally. And, to avoid any charges of bias, I'll include one from each hearing and one from a Democrat and one from a Republican.

Let's start with the first hearing, the one before the Senate Judiciary Committee, where Senator Sheldon Whitehouse decides to add his bizarrely ignorant statements (starting around 1 hour, 18 minutes into the recording). Whitehouse starts out with a hypothetical (again!) story of a girl being kidnapped outside of her home ("taken into a van"), but having her phone left inside. He claims that in the past, law enforcement could get a warrant for the phone "to help locate the girl." And now "they cannot do that." This hypothetical makes no sense for a variety of reasons. First, the number of actual abductions like that is pretty rare. But, more importantly, if the phone is at home then it's not exactly going to help law enforcement locate her any more. He's mixing up a variety of different things involving location versus stored data encryption. It's just a scare story that has little to do with the issue of stored data encryption, which is what the hearing is supposed to be about.

But, from there, he goes on to make an even more bizarre statement, claiming that companies pushing encryption are doing so solely for their own corporate benefit, creating harm for the public. In fact, he compares encryption to pollution, and then argues that there could be civil liability because encrypted phones make it difficult to find hypothetical kidnapped girls:

It strikes me that one of the balances that we have in these circumstances, where a company may wish to privatize value -- by saying "gosh, we're secure now, we got a really good product, you're gonna love it" -- that's to their benefit. But for the family of the girl that disappeared in the van, that's a pretty big cost. And, when we see corporations privatizing value and socializing costs, so that other people have to bear the cost, one of the ways that we get back to that and try to put some balance into it, is through the civil courts. Through the liability system. If you're a polluter and you're dumping poisonous waste into the water rather than treating it properly somebody downstream can bring an action and can get damages for the harm they sustained, can get an order telling you to knock it off.

This appears to be a thing that Senator Sheldon Whitehouse does. He makes up ridiculous hypotheticals of situations that aren't happening and then jumps to flat out wrong arguments based on those hypotheticals.

Here, he's just wrong that companies employing encryption are "privatizing value and socializing costs." In fact, as many, many, many people will argue, companies that are putting in place end-to-end encryption actually can make it more difficult for them to make money, since they close off avenues such as targeted advertising, since they lose access to the information being transmitted. But, even more to the point, this entire argument is based on the simply wrong (and completely ignorant) argument that the there's a "cost" to the public of greater encryption. That's not just wrong, it's so wrong as it should call into question the career choices of whatever clueless staffer fed that line to Senator Whitehouse. The whole crux of the argument, as has been explained over and over again, is that greater encryption better protects the public from cyberattacks, from those seeking to violate their privacy and from other potential malicious actors.

In other words, the actual scenario that Whitehouse should be concerned about is not the mythical girl being abducted into a van (again, a scenario that rarely happens), but the malicious online actors who are seeking to break into the girl's bank account or other online accounts in order to cause all sorts of actual problems for her in real life. That's the much more likely threat, and it's the one that strong encryption helps protect. The whole idea that strong encryption is the equivalent of pollution is hilariously wrong. Pollution is a negative externality. But strong encryption is not a negative externality. It better protects the public. It's a public benefit.

Senator Whitehouse's argument is based on a near total misunderstanding of what encryption does and how it protects people, and is devoid of any understanding of actual threats that people face in the world -- both the low likelihood of random abduction and the high likelihood of having your online accounts under attack. It's so far from reality that it feels like Senator Whitehouse ought to issue an apology.

On to the second hearing before the Intelligence Committee. In this case, the Senator we'll pick on is Senator John McCain. His part starts a little after the 1 hour and 15 minute mark into that video. And he's focused on the worst kind of political grandstanding, hyping up FUD around ISIS, followed by a "but we must do something!" argument that ignores the simple fact that the plan he supports actually makes the problem worse, not better. As you'll see, Senator McCain doesn't care about that. He just wants something done. This one involves some back and forth with Comey, starting with the scare stories to start things out:

McCain: Is it true that, you have stated on several occasions, that ISIS poses over time a direct threat to the United States of America?

Comey: Yes.

McCain: And that is the case today?

Comey:: Yes. Everyday they're trying to motivate people here to kill people on their behalf.

McCain: And every day that they take advantage of this use of the internet, which you have described by going to unbreakable methods of communicating, the more people are recruited and motivated to, here in the United States and other countries to attack the United States of America. Is that true.

Comey: Yes sir.

Okay, let's just cut in here first of all to note that it's not actually true. I mean, it's possible that this is happening, but there still has yet to be a single credible story about ISIS successfully "recruiting" people in the US to perform an attack in the US. All of the ISIS "arrests" so far have been part of the FBI's own plots, where it's an FBI informant doing the "recruiting and motivating."

McCain: So this is not a static situation. This is a growing problem, as ISIS makes very effective use of the internet. Is that correct?

Comey: That's correct sir.

McCain: So with all due respect to your opening comments, this is more than a conversation that's needed. It's action that's needed. And, isn't it true that, over time, the ability of us to respond is diminished as the threat grows and we maintain the status quo?

Comey: I think that's fair.

Actually, it's not fair. It's wrong. I mean, it depends on what kind of "action" we're talking about -- but since the entire hearing focused on backdooring encryption, it's difficult to argue that the "ability to respond diminishes" over time because any plan to backdoor encryption wouldn't be an actual response that matters. ISIS would quickly just switch to encrypted systems that aren't backdoored by the US government, and there are plenty to choose from.

McCain: So, we're now -- and I've heard my colleagues, with all due respect talking about attacks on privacy and our Constitutional rights etcetera -- but it seems to me that our first obligation is the protection of our citizenry against attack. which you agree is growing. Is that a fact?

Comey: I agree that is our first responsibility. But I also...

McCain: So the status quo is not acceptable if we support the assertion that our duty is to protect the lives and property of our fellow citizenry. That is our first priority. You agree with that?

Okay, first off, you should really watch this point to see the dismissive way he shrugs off the part about "privacy" and "our Constitutional rights etcetera." It's really quite disturbing, frankly. And that's because the next line is just wrong. The Oath of Office given to Senators is that they will "support and defend the Constitution of the United States against all enemies, foreign and domestic." It does not say anywhere that they are to "protect our citizenry against attack." And it especially does not say that the role of a Senator is to protect the citizenry from attack over protecting the Constitution. It says the exact opposite. It says that his sole job is to protect the Constitution.

That a Senator who has been in office as long as McCain is flat out ignoring the Oath he's taken many times, and actually arguing for a policy that he is admitting violates that oath is somewhat stunning. He is flat out saying, in violation of his oath, that his job is to undermine the Constitution if he believes it will protect the American people from attack.

And, just to highlight how incredibly stupid this statement is, pushing for backdoors on encryption doesn't even do what he thinks it does. It actually makes Americans more open to attack by making their digital information less safe and secure. So even if we took McCain's argument at face value and ignored that it's directly in contrast to his oath of office, he's still wrong, because he's putting more Americans at risk, rather than "protecting" them.

As for Comey agreeing that this is a first priority, he's wrong about that too. Some might think that is the first priority for the FBI, even if it isn't for Congress, but it's not. The FBI's oath is also to "support and defend the Constitution against all enemies, foreign and domestic."

McCain then drags out a bunch of leading questions in which he continues to try to make it out like "something must be done to stop this nasty encryption" stuff, getting Comey to (mostly) agree, even to completely bogus statements.

Comey: I agree that this is something that we have to figure out what to do about.

McCain: So now we have a situation where the major corporations are not cooperating and saying that if we give the government access to their internet, that somehow, it will compromise their ability to do business. Is that correct also?

Comey: (Shakes his head back and forth in a way suggesting he disagrees, but then says): That's a fair summary of what some have said.

McCain: So we're discussing a situation in which the US government -- i.e., law enforcement and the intelligence community -- lack the capability to do that which they have the authority to do. Is that correct?

Comey: Certainly with respect to the interception of encrypted communications and accessing locked devices, yes.

McCain: So we're now in an interesting situation where your obligation is to defend the country, and at the same time, you're unable to do so, because these telecommunications... these organizations are saying that you can't, and are devising methodology that prevents you from doing so, if it's the single key, only used by the user. Is that correct?

Comey: I wouldn't agree, Senator, that I'm unable to discharge my duty to protect the country. We're doing it every single day using all kinds of tools...

McCain: Are you able to have access to those systems that only have one key?

Comey: No, we can't break strong encryption.

McCain: So, you can't break it. And that is a mechanism which is installed by the manufacturer prevent you [sic] from using... that there's only one key that is available to them... to you.

Comey: That's correct.

Now, to his very slight credit, after this misleading back and forth, Comey eventually plays a slight devil's advocate here, and at least attempts to channel the views of all of those computer security experts who have pointed out that backdooring encryption makes people less safe.

McCain: So suppose that we had legislation which required two keys. One for the user and one that, given a court order, requiring a court order, that you would be able to -- with substantial reason and motivation for doing so -- would want to go into that particular site. What's the problem with that?

Comey: Well, a lot of smart people, smarter than I, certainly, say that would have a disastrous impact on broader security across the internet, which is also part of my responsibility.

McCain: Do you believe that?

Comey: I'm skeptical that we can't find a solution that overcomes that harm. But a lot of serious people say "ah, you don't realize, you'll rush into something and it'll be a disaster for your country. Because it'll kill your innovation, it'll kill the internet." That causes me to at least pause and say "well, okay, let's talk about it."

At which point McCain totally ignores that point to go back to his but we need to do something! mantra.

McCain: But, we've just established the fact that ISIS is rushing in to trying... attempting... to harm America and kill Americans. Aren't we?

Comey: They are.

McCain: So I say with respect to my colleagues, and their advocacy for our constitutional obligations and rights, that we're facing a determined enemy who is, as we speak -- according to you and the director of Homeland Security -- seeking to attack America, destroy America and kill Americans. So it seems to me that the object should be here, is to find a way not only to protect Americans' rights, but to protect American lives. And I hope that you will devote some of your efforts -- and I hope that this Committee... and I hope the Congress will -- understand the nature of this threat. And to say that we can't protect Americans' Constitutional rights in the same time protect America, is something that I, simply, won't accept.

Except, we can protect Americans' Constitutional rights and, at the same time, protect America: by enabling strong encryption that better protects the security and privacy of everyone, without adding unnecessary vulnerabilities in the form of government backdoors. McCain completely ignored the rebuttal point that his position actually makes America less safe by opening things up to those who wish to attack us.

Don't we deserve Senators who don't spout pure ignorance, focused on scaring the American public in ways that make us both less safe and take away the Constitutional rights they've sworn to defend?

There were plenty of other ridiculous claims made by Senators in both hearings, but these were the two nutty ones that stuck out for me. We deserve better elected officials.

Filed Under: congress, constitution, encryption, going dark, james comey, john mccain, senate, sheldon whitehouse

House Caves On Fast Track, Issues Moves Back To The Senate

from the this-is-ridiculous dept

The process for shoving through dangerous corporation-driven trade agreements has been a bizarre procedural mess, but unfortunately it took another step forward earlier today. As we've reported, at the end of May, after some tinkering, the Senate voted in favor of giving the President "fast track" authority (which effectively cedes Congress's Constitutional powers over international commerce to the President). There had been a brief hiccup in that process until the Senate agreed to tie the fast track bill (officially known as "Trade Promotion Authority" or TPA) to a separate program known as Trade Adjustment Assistance (TAA), which helps provide training programs for workers displaced over trade. At that point, everyone thought that the fight was now entirely about the House. And, in a surprise move, late last week the House overwhelmingly rejected the TAA part, with many Democrats voting against it -- even though it's a program they support. The claim was that they voted against it as a protest over the fast track provision, which they didn't like -- though, oddly, right after that they did a "show vote" approving fast track, even though it was procedurally meaningless.

The original plan was then to pull another procedural trick to re-vote for TAA on Tuesday of this week, but after realizing they simply didn't have the votes, that vote was pushed off until at least July 30th. However, supporters of the big trade deals apparently huddled yesterday and finally came up with a plan B: they would separate out the TAA and TPA but with a promise from Republicans that they would come back together later, and the President more or less said he wouldn't sign the TPA unless TAA came with it.

Either way, this plan B has now gone into effect and narrowly succeeded in the House with a 218 to 208 vote, meaning that even though we thought this was done in the Senate, the fight now returns there. The Democratic Senators who voted for the combined package originally now need to see if they trust everyone to also support TAA if they vote for TPA.

Yes, it's a confusing mess -- but basically this fight now goes back to the Senate with a pretty good chance that there will be enough votes to give the President fast track authority. There are some questions on that front, but it's close enough that someone is likely to cave. And then it appears we're right back to the fight over the TAA. If it's true that the President really won't accept TPA without TAA, the House still needs to pass TAA and that wasn't possible as of Tuesday. This is a procedural move that moves the process forward, but it's still not a done deal that the trade agreements will happen. Of course, there is the risk that the President will go back on his word and because he's so desperate to get the TPP agreement approved, that he'll accept the TPA without the TAA... and that will truly screw over his own party while helping Republicans massively, since they hate the TAA program. The question, really, is how badly the President wants that trade agreement. Is he willing to screw over his own party to make it happen?

In short: this fight isn't over yet, and for now it goes back to the Senate... but it will probably also return to the House before long, and may involve the President. And, so, we wait...

Filed Under: congress, fast track, house, senate, taa, tpa, tpp, trade adjustment assistance, trade promotion authority, ustr

Senate Quickly Says 'No Way' To Mitch McConnell's Cynical Ploy To Add Bogus Cybersecurity Bill To NDAA

from the let's-stop-this-game dept

Earlier this week, we noted that Senator Mitch McConnell, hot off of his huge flop in trying to preserve the NSA's surveillance powers, had promised to insert the dangerous "cybersecurity" bill CISA directly into the NDAA (National Defense Authorization Act). As we discussed, while many have long suspected that CISA (and CISPA before it) were surveillance bills draped in "cybersecurity" clothing, the recent Snowden revelations that the NSA is using Section 702 "upstream" collection for "cybersecurity" issues revealed how CISA would massively expand the NSA's ability to warrantlessly wiretap Americans' communications.

Thankfully, like his PATRIOT Act games from a few weeks ago, this latest McConnell move has fallen flat. The Senate rejected the attempt by a 40 to 56 vote. So, for now, it looks like the Senate isn't going to be able to ram CISA through either which is good news.

Still, expect Congress to keep trying. But, each time, it's important to ask some basic questions: what attacks would this bill actually stop (answer: none). And what laws are currently preventing the supposedly necessary "information sharing" from happening today? And, more importantly, why is the NSA getting access to this information and allowed to run backdoor searches on its upstream collections of all internet traffic exiting or entering the US? These all seem like relevant questions and they're all questions that the powers that be are ignoring.

Filed Under: cisa, cybersecurity, mitch mcconnell, ndaa, senate

Senate Fails To Pass Both USA Freedom And PATRIOT Act Extension, Setting Up Possible Expiration Of Section 215

from the the-drama-rises dept

Well, well. Here's a quick (rare) Saturday post just to get folks up to speed on what happened late last night. After going back and forth for a while, the Senate voted on... and failed to approve both a version of the USA Freedom Act and a short "clean extension" of the clauses of the PATRIOT Act that were set to expire -- mainly Section 215 which some (falsely) believe enables the NSA to collect bulk metadata from telcos (and potentially others). What this means is that it is much more likely that Section 215 expires entirely. The Senate has since left town, though it plans to come back next Sunday, May 31st to see if it can hammer out some sort of agreement. Though, beware of false compromises, such as those being pushed by Senate Intelligence Committee (and big time NSA supporter), Richard Burr. His "hastily introduced" bill pretends to try to "bridge the gap" but in actuality is much worse than basically anything else on the table.

Oftentimes when things like this happen, it's all political theater -- with Senators appearing to "take stands" on key issues to please constituents. This time, however, there does seem to be genuine confusion as to where this is all going to end up. Next week ought to be fairly interesting...

Filed Under: mitch mcconnell, patriot act, rand paul, richard burr, section 215, senate, usa freedom act

TPP Moves Forward In Senate With Fast Track; On To The House

from the but-of-course dept

As was widely expected after last week's vote, the Senate has now voted in favor of fast track for trade agreements (officially "Trade Promotion Authority") after Republican Senators convinced enough of their Democratic counterparts to give up their Constitutional authority in regulating international commerce (yes, you read that right: Republicans who keep complaining about the President taking too much power and not obeying the Constitution, just voted explicitly to give up Constitutional authority to the President of the other party, while most Democrats declined to do so).

Also as expected, all attempts to add amendments to the TPP -- including Elizabeth Warrens' plan to strip corporate sovereignty ISDS provisions -- failed. Any of the amendments almost certainly would have sunk the fast track bill in the House, so they were all basically poison pills designed to kill fast track. Still, it's disappointing that Congress is favoring corporate sovereignty, when it's pretty clear that it's a provision that is going to come back and bite us badly.

Either way, the fight will now move on to the House, where it's not yet clear if there are enough votes. But, don't be surprised to see a full court press to convince another dozen or so Democrats to join with Republicans in coughing up Congress' Constitutional authority over international trade.

Filed Under: fast track, house, senate, tafta, tpa, tpp, trade promotion authority, ttip

WSJ Editorial Board So Clueless It Thinks That We're Now 'Rushing' Through A Surveillance Debate That's Been Going On For Two Years

from the a-rush? dept

As the Senate does its little song and dance today over surveillance reform, kudos to the Wall Street Journal's editorial board for producing what has to be one of the most ridiculous opinion pieces on this debate to date. It's called The Anti-Surveillance Rush, and its main argument is that the Senate shouldn't be "rushing" through this debate, and that it should instead simply do a clean extension of section 215 of the PATRIOT Act to allow for further debate. This is wrong and it's clueless. The WSJ editorial board can be nutty at times, but the level of cluelenssness displayed here really takes it to another level. Let's dig in.

The Senate is supposed to be the cooling saucer for political passions, but surveillance opponents want it to be a slip ’n slide instead: They want the Senate to accept wholesale revisions to counterterrorism programs with little if any debate before Congress skips town for vacation at the end of the week. We hope Senators show more respect for their institutional dignity.

Little if any debate? Are they serious? This round of debate started almost exactly two years ago when Ed Snowden revealed the extent of the phone metadata collection program under Section 215. There have been numerous hearings, tons of public debate, articles, books, movies and more discussing this very topic. To pretend that this is a last minute debate is simply ridiculous. As for the claim that these are "wholesale revisions," most everyone admits that the changes are really not that major, but rather a small step towards actually respecting the 4th Amendment, but without any real changes to overall capabilities.

The House jammed the Senate last week with a bill that passed 338-88 and remakes intelligence collection of metadata phone records. House leaders of both parties know that floor time is limited and that the legal authorities for metadata, roving wiretaps for people who move across the U.S. border, and several other programs lapse in June. So their ultimatum is either to wave through their bill or undermine national security.

Almost none of that is true. After all, there was a similar debate last year on a nearly identical bill, and there has been widespread discussion about this for months. The fact that Section 215 sunsets next week has been known since the last renewal, and all of Congress has had years to work on a new solution.

In fact, let's compare this to another piece from the WSJ editorial board two years ago, in which it celebrated Congress's decision to renew the FISA Amendments Act (which houses a similar surveillance program) with little to no debate at all. There, the WSJ was excited:

With scarcely any notice, much less controversy, they did at least preserve one of the country's most important post-9/11 antiterror tools.

[....]

In September the House passed the "clean" five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky's Rand Paul.

The bill was then whistled through 73-23 and Mr. Obama signed it Sunday night with no public comment other than a one-sentence statement from the White House press secretary indicating that the bill had been signed. Meanwhile, the press corps was wigging out about Facebook's privacy settings.

So, as long as it's granting more power to spy on us, the WSJ is against public debate. When it's about limiting such spying, the WSJ whines about how there's not enough debate. Fascinating.

Back in 2012, the editorial board was so positive that the spying was overblown that it mocked those who had worried about these programs (this was just months before the Snowden revelations:

That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.

Funny how it's tough to have "apoplexy" when all the details are kept secret. Of course, now we know how much spying was being done, Congress actually wants to fix it, and the WSJ can't have that.

Back to the present article. The House did not "jam" this to the Senate. This issue has been known about and discussed for months. And, basically no one -- not even within the intelligence community -- is arguing that this "undermines national security."

The better outcome would be a clean, temporary extension that allows the Senate sufficient time to consider the details and understand what it is doing.

Bullshit. This has been debated for two years. Everyone -- especially the Senate -- has known about the June 1st sunset since it was put in place during the last renewal. And they still waited until the last minute to do this song and dance. A temporary extension will mean that they'll wait until the last minute of that extension for a similar song and dance and the WSJ can publish another clueless editorial saying we need more time for debate again.

Who do they think they're fooling?

The USA Freedom Act, which the House Intelligence and Judiciary Committees negotiated with the White House, is a panicky political response to the Edward Snowden-inspired frenzy over surveillance

The Snowden leak on this program happened almost exactly two years ago. The USA Freedom Act has been discussed and debated for well over a year in various formats. How is this a "panicky political response"?

Supposedly government spooks are bugging your bedroom and reading your emails—though they aren’t—and politicians want to be able to say they did something about it.

Strawman alert. No one is actually claiming that. They're claiming -- truthfully -- that the NSA is engaged in bulk collection of phone records, a program that two separate review boards by the President found illegal and unconstitutional and the important Second Circuit appeals court found illegal last week as well. Does the WSJ editorial board believe its readers are too stupid to know this?

Yet bulk call log searches are an important analytic tool that aid terror investigations and prevent attacks.

This is simply not true. As has been pointed out multiple times, the intelligence community could not provide a single example where that was the case. The only example presented was how it was used to track down a cab driver in American who sent some money to a questionable group in Somalia. That's it. There is no evidence that it was important in any terror investigations or in preventing a single attack.

From there, the WSJ whines that since the USA Freedom Act leaves data collection to the telcos, all hell is going to break loose:

In the best scenario, this untested leap to replace a framework that has been useful in the 14 years since 9/11 will make intelligence more time-consuming and less efficient. Speed and agility matter in uncovering plots or safe houses. And how multiple databases that are likely to be less secure than the NSA’s will protect privacy is anyone’s guess.

The "less secure" line is a bullshit red herring -- because the telcos already keep this data, so nothing changes there. It's just that the data is not also being held by the NSA. Second, the idea that this new process is somehow more time-consuming and less efficient doesn't have any actual support. Telcos have already shown to be all too willing to work closely with intelligence agencies to give them near real-time access when necessary. That's not suddenly going to go away.

But the House bill also declines to define how long telecoms must retain metadata. A year, a month? Who knows? If Washington’s relationship with Silicon Valley grows more adversarial, service providers may conclude it is in their commercial interests to erase these records more or less in real time. In that case the NSA won’t be able to look for a needle because there won’t be a haystack.

First, this seems to confuse "telcos" with "Silicon Valley" when they're very different things. Second, this conflates a bunch of different issues and suggests near total ignorance on the part of whoever wrote this editorial. Many of the records that the NSA wants are the kinds of business records that these companies need to hold onto for some period of time, so the fear of "no logs" is kind of meaningless. But, even if it was true that companies started to flush their logs, so what? There is no requirement that all of our activities be tracked. Law enforcement made due in the past when not everyone was automatically tracked all the time. They can do so again.

Among the GOP presidential field, Marco Rubio has come out in favor of metadata, while Chris Christie gave a thoughtful speech Monday on intelligence and foreign affairs in Portsmouth, New Hampshire.

Thoughtful? The one where he says all civil liberties fears were "baloney" coming from "extremists"? Yeah, that wasn't thoughtful. That was bombastic bullshit from a surveillance state apologist. Remember, this program was just declared illegal (with a strong hint of not being Constitutional) by the 2nd Circuit appeals court. And the WSJ is defending it.

A rush to the exits is no way to conduct U.S. intelligence, or the affairs of Congress. If a majority of Senators really do want to disarm in the terror war, then they should defend their positions, listen to the other side, and be accountable for the results. Cramming such a major policy into law before a holiday weekend is a failure to treat national security with the seriousness it deserves.

No one is disarming anyone. They're just making sure that the NSA can't unconstitutionally scoop up every bit of metadata under what is an illegal general warrant. And there is no rush. Again, this debate has been two years in the making (or longer if people had actually listened to Senator Wyden). And if this debate deserves seriousness, it should at least start with the WSJ not totally misrepresenting the whole thing.

Filed Under: editorial, patriot act, section 215, senate, surveillance, usa freedom act, wsj
Companies: wall street journal

Senate Fight Is On Over NSA Surveillance Reform

from the line-up-the-fud dept

Earlier this week, the House voted overwhelmingly in favor of the USA Freedom Act, which takes some small steps towards limiting the NSA's surveillance efforts. And, in fact, as Rep. Justin Amash has pointed out, many of the no votes actually came from people who felt USA Freedom doesn't go nearly far enough (which is true). As we mentioned at the time, the fight now moves to the Senate, and the opening gambit is that Senator Mitch McConnell has pushed out a "short term" reauthorization, that would just renew Section 215 through July 31st, supposedly to give the Senate more time to "debate" this issue. This is as opposed to his original bill that renewed it through 2020.

But there's a fight being set up here. A whole bunch of Senators have said that they won't, under any circumstances vote for any renewal bill, short or long:

A bipartisan group of lawmakers on Thursday issued a clear and direct joint statement declaring their intent to oppose any extension of the Patriot Act's expiring surveillance authorities that does not end the National Security Agency's bulk collection of U.S. call data.

"We will not agree to any extension of the NSA's bulk-collection program, which has already been ruled unlawful by the Second Circuit Court of Appeals," the group, which includes Sens. Patrick Leahy and Mike Lee in addition to Reps. Bob Goodlatte, John Conyers, Jim Sensenbrenner, and Jerrold Nadler, said.

Meanwhile, on the flip side, you have McConnell and Senate Intelligence Committee boss Senator Richard Burr spewing pure nonsense about how not renewing Section 215 will somehow put us all at risk:

"We're not taking up the House bill," Senate Intelligence Committee Chairman Richard Burr, another defender of the NSA, told reporters Wednesday. "The program as designed is effective, and members are reluctant to change things that are effective just because of public opinion."

Burr said he views the USA Freedom Act as "one and the same" as allowing the Patriot Act provisions to expire entirely. "Because when you do away with bulk storage, you basically have an unworkable system in real-time," he said.

Almost everything Burr states above is totally false. First of all, the program "as designed" is not effective. That's the conclusion of almost everyone who has looked at the details. The White House task force set up to study the program said that it couldn't find any terror attacks stopped by the program. Three Senators on the Intelligence Committee have said the program has never been useful. The Privacy and Civil Liberties Oversight Board (PCLOB) could find no justification for the program. A district court judge, Richard Leon, spoke out about how surprised he was that the DOJ presented no evidence that the program was useful.

How stupid does Burr think everyone is to then go out there and claim that the program is "effective" and that the Senate believes it's effective.

Separately, the argument that "doing away with bulk storage" creates an "unworkable system" makes no sense either. Given the recent 2nd Circuit ruling, it also appears to be advocating for a program that is both illegal and unconstitutional.

And, of course, that raises a separate point. Even if the Senate does a clean renewal of Section 215, the court has already ruled that that law does not allow for such bulk collection/storage. So, Burr can't claim it's necessary to renew 215 to keep bulk collection, since the law does not actually allow that.

A lot of this is just idiotic political posturing. As Amash notes, this may all just be a game by McConnell and other surveillance state supporters in the Senate to water down an already weak USA Freedom Act bill to make it even less useful (or worse).

Either way, this is all going to come to a head next week. The Senate wants to get this done by the 22nd of May (even though Section 215 doesn't expire until the end of the month), as they're not supposed to be in session the final week of the month. Stay tuned for next week...

Filed Under: bulk collection, mass surveillance, mitch mcconnell, nsa, patriot act, richard burr, section 215, senate, surveillance, surveillance reform, usa freedom act

Key Fighter For Civil Liberties, Russ Feingold, Running To Return To The Senate

from the good-news dept

We've pointed out for years how strong a supporter of civil liberties Senator Ron Wyden has been, but the one guy who probably had an even stronger record on that front was Senator Russ Feingold. Feingold was the only Senator who consistently voted against the PATRIOT Act and increases to government surveillance. In fact he was the only Senator to vote against the PATRIOT Act in the first place. And, at that time, he gave a speech in which he accurately predicted how the NSA would abuse the PATRIOT Act:

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That's it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power.

If anything, Feingold underestimated how this provision would be used, because even he didn't predict it would be used to have phone companies hand over every record on every phone call. Feingold was also the first to raise the alarm about "secret interpretations" of the law, well before others started pointing that out as well.

Thus it was ridiculous and disappointing to see Feingold voted out of office in the 2010 "Tea Party" wave. He lost to Senator Ron Johnson, a Tea Party favorite... who went on to vote in favor of key bills to expand the spying power of the intelligence community.

Feingold has now announced that he wants that Senate seat back, and will be challenging Johnson in the 2016 election:

"[L]et’s fight together for change. That means helping to bring back to the U.S. Senate strong independence, bipartisanship and honesty," Feingold said in a video announcing his campaign. "So today I'm pleased to announce that I'm planning to run for the United States Senate in 2016. And this effort begins with listening to you. "

His announcement didn't mention anything about surveillance or civil liberties, but considering his track record on that front, he would be an important addition to the Senate on these key issues -- especially since we lost Senator Mark Udall in the last election, after he had picked up many of the civil liberties issues that Feingold used to champion.

Filed Under: civil liberties, patriot act, ron johnson, russ feingold, senate

Fast Track Bill Back On The... Fast Track After Senate Deal

from the trade-deal-moves-forward dept

This isn't a huge surprise, but after getting rejected on Tuesday, Senators went back into deal-making mode. And, after passing a bill to crack down on currency manipulation, enough Senators who voted no earlier in the week now voted yes to move the fast track ("trade promotion authority") bill forward to a floor debate. That debate should happen next week, and apparently there will be some attempts to add some amendments to improve the fast track bill, though it's unclear if any of those have a legitimate chance of getting in. In short, chances are the fast track bill will pass the Senate next week, meaning that the real question is whether there are enough votes in the House.

The whole thing still seems quite bizarre. You have House and Senate Republicans (the party that regularly insists that it believes in the Constitution as originally written) voting to give up their Constitutional authority to oversee international commercial under the Commerce Clause, and hand it to a President in the opposing party. And, yes, this is the same President that Congressional Republicans are trying to block on almost every other move, and whom they often insist ignores Congressional powers under the Constitution to use powers not granted to the Executive branch under the Constitution. Why would they do that? And, at the same time, most in the President's own party are against doing this.

Again, while I know that many who are opposing the TPP and TTIP are just against trade deals in general, I am generally in favor of good free trade deals. It's just that the TPP is not that. It's barely even a "trade" deal at all. And thus, it's quite bizarre to see the politics of how this has all played out.

Filed Under: congress, fast track, partisan politics, senate, tpa, trade, trade promotion authority