House Approves Bill To Spy On Americans By Misrepresenting Or Lying About What's In The Bill

from the they're-just-lying dept

We recently talked about how the House voted to approve the FISA Amendments Act (FAA) by a pretty wide margin, and noted some of the more bizarre and inaccurate statements that Representatives made in support of the renewal. Julian Sanchez has put together a nice summary of some of the more outrageous claims. The key here is that many Reps. seemed to take the FISA Amendments Act at face value, that it would only be used to target foreigners in foreign lands -- in other words, those with no 4th Amendment protections. But, as Sanchez has pointed out repeatedly, former Deputy Attorney General, David Kris, more or less revealed the Act is interpreted to mean that as long as the information they get might be useful in targeting foreigners in foreign lands, it's fair game. That means -- contrary to the direct claims of many FAA supporters -- the law is used to spy on Americans.

Sanchez also highlights another sneaky interpretation. The law claims that it prohibits the interception of "purely domestic" communications. But there's an additional clause with one hell of a loophole: "Known at the time of acquisition." As Sanchez notes, you can drive quite a large truck through that loophole, because if you're, say, scooping up all email communications, you don't know -- at the time of acquisition -- if it's purely domestic... and therefore, you're good to go. Basically, ignorance is bliss for the NSA.

But these two massive loopholes and sketchy interpretations seem to be totally ignored by the Congressional reps who spoke out most strongly in favor of renewing the FAA:

The most common refrain from FAA supporters was that the law only concerned surveillance targeting “foreigners in foreign lands”—meaning it could not possibly affect the rights of Americans. Rep. Trey Gowdy (R-SC), in an impressive display of lung power, delivered a five minute floor shout to this effect. “This bill has nothing to do with Americans on American soil,” Gowdy thundered, “This bill doesn’t implicate the Bill of Rights, any more than it implicates any other part of our Constitution, unless you think that foreign nationals who are on foreign land fall within the protections of the United States Constitution.” But Gowdy has to know that this is false, because the secretive Foreign Intelligence Surveillance Court has already ruled on at least one occasion that surveillance authorized by the FAA did violate the Fourth Amendment’s prohibition on “unreasonable searches and seizures.”

Similarly, we've seen how the NSA absolutely refuses to say how many Americans have been spied upon using these tools, claiming that it's impossible to know (or that it would violate their privacy to find out -- seriously). But, Sanchez notes that, despite the NSA insisting it's impossible to know, that didn't stop Representatives from claiming they just knew.

Intelligence Committee Chairman Mike Rogers (R-MI) was slightly more equivocal, seemingly acknowledging that the law might permit surveillance of Americans, but that this would happen only very rarely.  The mystery here is how he could possibly know that. Sen. Ron Wyden (D-OR) has repeatedly asked the NSA for a rough ballpark estimate of how many Americans—100? 1,000? 100,000?—have had their communications caught up in the agency’s FAA dragnets. If Rep. Rogers were correct, you’d expect the answer to be “almost none”—but instead the agency has repeatedly insisted that it is unable to provide even an approximate figure. Unless Rep. Rogers somehow knows things about the NSA’s databases that the NSA does not know, he can’t have any real basis for this claim.

And then there's Rep. Dan Lungren. Earlier, we had noted that when there were discussions during hearings about the FAA, he brushed off concerns about spying on Americans by saying he hadn't seen any such evidence so it couldn't be true. Of course, he didn't bother to seek out any such evidence by asking the NSA to provide the data. And here he was even worse, making bizarre claims in support of expanding the FISA Amendments Act that seem to go completely against reality.

Finally, Rep. Dan Lungren (R-CA) suggested that the necessity of the FAA was demonstrated by the failures of intelligence leading up to 9/11. After all, the 9/11 Commission had again and again emphasized the central failure to “connect the dots” that would have revealed an imminent attack before it occurred—and to “connect the dots,” Lungren asserted, intelligence agencies would need still more expansive power to first “collect the dots.” This is, in a way, the most breathtakingly erroneous statements heard during Wednesday’s floor debates, because turns the 9/11 Commission’s findings completely on their head. Their report conspicuously did not identify a lack of legal authority to conduct surveillance as a serious problem: If anything, the trouble was that agencies were drowning in information they lacked the capacity to analyze and put to use. Perversely, Lungren trades on a familiar phrase—”connect the dots”—to utterly invert the Commission’s diagnosis of the causes of 9/11.

So... if you're keeping track at home, the reasons the House approved this horrible bit of legislation with massive loopholes that allows the NSA to spy on us is because it can't be used to spy on us (even though it can), it bars the collection of domestic communication (except in nearly every case that it does not), it's barely been used on Americans (except that the NSA claims it's impossible to tell how many Americans it's been used on) and we need it to "connect the dots" on terrorism (even though it doesn't help connect the dots, but merely to provide even more dots, many of which will distract from the important dots).

How do these people get elected?

Filed Under: congress, dan lungren, faa, fisa amendments act, foreign targets, house of represenatives, lamar smith, mike rogers, nsa, terry gowdy

House Approves Rep. Lamar Smith's Bill To Keep Spying On Americans

from the of-course-they-did dept

As was expected, despite not knowing the details of how the feds interpret the FISA Amendmens Act, which grants massive spying and surveillance power to the feds -- in fact, while proactively stopping any efforts to find out more about the interpretation, the House of Representatives today approved Lamar Smith's FISA Amendment's Act by a vote of 301-118. You can see which representatives voted which way at that link. The bill would extend the current rules (and the secret interpretation) for another five years. Republicans, who are supposedly against bigger government, only had 7 members vote no, while the remaining 111 no votes came from Democrats.

There had been an attempt to introduce amendments, but that was shot down procedurally. And an hour debate did little to get to the heart of the matter. Rep. Zoe Lofgren fought the good fight, pointing out that "I think the government needs to comply with the Fourth Amendment to the Constitution all the time... We can be safe while still complying with the Constitution of the United States." However, Rep. Dan Lungren -- who previously had insisted that there was no evidence that the NSA was abusing its powers, while refusing to even ask the NSA for basic info on how it was using the powers -- insisted based on absolutely nothing that "this is critical to the protection of the American people."

Even worse, Rep. Terry Gowdy made a ridiculously ignorant statement in response to Lofgren's highlighting of the 4th Amendment:

”Intelligence is the lifeblood of our ability to defend ourselves,” he said. Moments later, he added: “Are we to believe that the Fourth Amendment applies to the entire world?”

But, uh, the concern isn't with the rest of the world. Even without the FISA Amendments Act, the NSA already had the right to seek info on foreign communications. They have no 4th Amendment rights, so that's not even an issue. The issue is that the FISA Amendments Act appears to include some weasel words that have been twisted by the government to suggest that it can spy on Americans too. But Gowdy misleads the public by pretending, falsely, that this is about foreigners? It's not. Has he asked the NSA how many Americans it's spied on? Even the NSA has admitted that it's violated the 4th Amendment under the act in spying on Americans... but Gowdy pretends this is just about foreigners? How do you stand up and call yourself a "Representative" when you can't even get the very basics right?

Of course, House approval is just one step. The Senate version remains on hold thanks to Senator Wyden, who is one of the only elected officials who is actually asking the NSA and the Obama administration to (a) reveal the secret interpretation and (b) disclose how many Americans are being spied on under the rule.

As Julian Sanchez explained recently a former DOJ official has basically revealed part of the secret interpretation, which more or less says that if the target is al Qaeda, then anything goes:

For example, an authorization targeting “al Qaeda”—which is a non-U.S. person located abroad—could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone.

Take that and expand it, and you've basically given the feds and the NSA a blank slate to spy on Americans by claiming that if it believes the spying will yield information about a threat, then it's fine. And our "Representatives" are standing up and -- either through ignorance or straight-up dishonesty -- are pretending that this is about spying on foreigners only. Shameful.

Filed Under: 4th amendment, congress, dan lungren, faa, fisa amendments act, house, lamar smith, nsa, surveillance, terry gowdy, zoe lofgren