USA Freedom Act Fails To Move Forward... For Incredibly Stupid Reasons

from the onto-the-next-round dept

So, this evening the USA Freedom Act failed to get the 60 votes it needed for cloture to "advance" to a full floor vote. It ended up at 58 to 42. There was a short debate prior to the vote, and the debate was... stupid. Yes, there are some legitimate concerns with the USA Freedom Act, mostly in that it doesn't go far enough. But that's not what the debate was about at all. You had a bunch of bizarrely clueless Senators, many of whom insisted they were against the act because it would take the bulk collection out of the hands of the NSA and put it into the hands of the telcos -- with the claim being that the NSA could keep that data safer. Senators Susan Collins and Saxby Chambliss kept harping on that point. But it's flat out wrong. Because the whole point of this is that the telcos already have this data. The debate is between "telcos have the data" and "telcos and NSA have the data." Arguing that telcos-only is inherently more likely to lead to a privacy violation makes no sense at all.

Chambliss went further, repeating (over and over again) that it's okay for the NSA to have this data because only 22 people have access to it. Of course, as Marcy Wheeler points out, that's not true. 22 people can authorize a search based on "reasonable articulable suspicion" but many others can access the results. Furthermore, as Harley Geiger points out, the problem is not even at the point of access, but collection, and there's nothing in the law that says the limit is always 22. Frankly, the whole 22 people debate seems strange to me. Is Chambliss really arguing that it's okay to violate the 4th Amendment if only 22 people can do it?

Separately, Senator Dianne Feinstein very reluctantly supported the bill, noting that she's very afraid that if this bill doesn't pass, the whole Section 215 program will go away. Frankly, that actually sounded like a good reason not to support the bill. She also kept insisting that it wasn't being abused because there were only "288" searches last year on that data. First of all, 288 already seems like quite a lot to me, and again we go to Marcy Wheeler for the fact check, where she points out that it's not 288 searches, but rather 288 "selectors," which could be queried multiple times (and those selectors could scoop up lots of data).

Hopefully, it turns out that Senator Feinstein's "fears" on this bill were accurate, and that it leads to the end of Section 215 altogether. But, the completely bogus debate over this effort just highlights how ridiculous the idea is that the Senate has any sort of "oversight" over the NSA, or that it has the interests of the Constitution or the public in mind.

Filed Under: bulk data collection, dianne feinstein, nsa, patrick leahy, privacy, saxby chambliss, senate, surveillance, surveillance reform, susan collins, usa freedom act

Congress Wants To Push Dangerous Cybersecurity Bill After The Election, Says US Economy Depends On It

from the bad-ideas dept

Reports are coming out that Congress is looking to push forward with bad cybersecurity legislation after the election, but before the new Congress takes over in January. We've discussed the bill in question, CISA, before. The main idea behind it is to immunize companies from liability if they share certain information with the government. Supporters of the bill note that the information sharing is entirely voluntary, but by taking away the liability it also makes it a lot more likely that companies will choose to give information to the government, and it's not yet clear why the government really needs that information. But the FUD levels are high, with Senator Saxby Chambliss actually suggesting the entire economy is at stake here:

"If we wait another year, we are really risking the economy of the United States."

Oh, come on. People have been saying this for years -- along with the whole "cyber pearl harbor" claims -- but have failed to present any explanation or details of how (1) there's a real risk to the economy or (2) how current laws block necessary solutions. On top of that, no one seems willing to explain how further information sharing will actually help stop online attacks. Remember, this is the same federal government that didn't even notice that the White House's own network had been breached until some other country told us about it. And yet, we now believe that if only US companies were feeding more information to the NSA that they'd magically be able to stop attacks (and save the economy?). That seems unlikely.

It also sounds like there may be some sort of potential trade-off, in which Congress will try to lump this bill with the USA Freedom Act, as the White House is said to be focused on surveillance reform over the cybersecurity bill. But, the reality is that the two are in many ways attached. And there are increasing worries that the final result on the USA Freedom Act will, in some ways, actually (yet again) enhance the NSA, rather than hold it back. Combine that with a cybersecurity bill that will give the NSA even more ways to get our data, and the end result could be the surveillance state increasing, rather than shrinking, with no actual benefit to the American public. There would be fewer privacy protections and just some arm waving about saving the US economy.

Filed Under: cisa, cispa, cybersecurity, economy, fud, nsa, saxby chambliss, sharing, surveillance, usa freedom act

Senator Saxby Chambliss Insists That NSA Reform Would Help ISIS... Despite Having Nothing To Do With ISIS Surveillance

from the pure-unadulterated-fud dept

The latest version of the USA Freedom Act is still on the boards, representing a big improvement in somewhat limiting NSA bulk surveillance on Americans. It's not great, but it's a step in the right direction, which would be more than has happened in decades. That said, never underestimate the ability of people spewing FUD. Senator Saxby Chambliss, one of the biggest kneejerk defenders of the surveillance state, has apparently decided that this minor curtailing of bulk surveillance efforts will help ISIS and therefore we shouldn't do it.

“If you want to take away the ability to monitor ISIS, then you eliminate the tools that are eliminated in the Leahy bill,” Georgia Sen. Saxby Chambliss, the top Republican on the Senate Intelligence Committee, said in a weekend Hill report. “I can’t imagine anybody wanting to do that.”

This is the logic of fear, because it has no basis in reality. Most of the USA Freedom Act is about whether or not the NSA can do bulk collection of records in the US on US persons. It has no impact on Executive Order 12333 where most ISIS surveillance is almost certainly taking place. In short, there's nothing in the USA Freedom Act that has any real impact on ISIS surveillance.

Basically, you just have surveillance state defenders using the most convenient bogeyman, in this case ISIS, to seek more power for the surveillance state, logic and reality be damned. The whole thing is just a cynical ploy to defend the surveillance state at all costs. But, under that idiotic logic, we might as well do away with the 4th Amendment altogether. Hell, why not just mandate that every human being in the US walk around with a camera and microphone recording everything they say and do -- all automatically shipped off to NSA headquarters at Ft. Meade for analysis? That might help stop ISIS. Just like collecting all phone records might. But in all reality it won't. At all. So it's a cowardly, shameful FUD suggestion from a cynical Chambliss. He's not looking out for the American people or their rights. He's looking out for the surveillance state.

Thankfully, Senator Patrick Leahy (the sponsor of the USA Freedom Act) quickly hit back, though not quite as strongly as he could have:

Leahy himself dismissed such claims.

“We’re always going to face threats,” Leahy said in the report. “The biggest one we can face is the threat to our own liberties and our own privacy.”

That's a message that doesn't seem particularly popular among surveillance state defenders.

Filed Under: eo 12333, executive order 12333, isis, nsa, patrick leahy, saxby chambliss, surveillance, usa freedom act

Senate Intelligence Committee Approves Dangerous Cybersecurity Bill

from the because-of-course dept

We've written about the Senate's dangerous CIPA bill -- which is Congress' latest (bad) attempt to help increase the NSA-led surveillance state by giving companies blanket immunity if they share private information with the government... all in the name of overhyped "cybersecurity." We, of course, have been through this fight before, with the CISPA bill, which passed in the House a few times, but couldn't get any traction in the Senate. This time around, the (really bad) Senate version passed out of the Senate Intelligence Committee by a 12-3 vote (held in secret, of course). Not surprisingly, two of the three who voted against it are Ron Wyden and Mark Udall.

By now you should know: if Ron Wyden and Mark Udall are against something related to surveillance, you should be against it too (and the opposite is true as well).

The "good" news is that despite the overwhelming support by the NSA's biggest cheerleaders on the rest of the Senate Intelligence Committee, it seems unlikely that the bill will have enough support in the overall Senate. And it will hopefully remain that way. This bill is a dangerous one, that is solely designed to give the NSA and some companies additional legal "cover" for aiding the NSA's surveillance efforts. Thanks to Snowden's revelations, companies are, in general, a lot less willing to do that these days anyway, but giving those companies blanket liability to do so is a bad, bad idea.

And while there's still little to no evidence that the "cybersecurity threat" is anywhere close to as big as what the FUDmongers insist it is, even if that is true, no one has yet explained what laws actually get in the way of having companies share critical cybersecurity information as needed. And, if such laws really do exist, any solution should to just be narrowly focused on fixing those laws, rather than granting broad immunity for sharing just about any info.

Filed Under: cisa, cispa, cybersecurity, dianne feinstein, mark udall, ron wyden, saxby chambliss, senate, senate intelligence committee

Feinstein And Chambliss Let James Clapper Talk Them Out Of Requiring Transparency On The Administration's Drone Strikes

from the editing-the-pre-edited-version dept

It looks like the American public won't be getting any answers on the government's extrajudicial killings any time soon. An intelligence bill that passed the Senate late last year contained a stipulation requiring the administration to provide statistics on drone strikes, including number of combatants and noncombatants killed or injured in these strikes. That requirement has now been excised, thanks to the efforts of Sens. Feinstein and Chambliss and their buddy at the Office of the Director of National Intelligence, James Clapper, as Spencer Ackerman reports.

[T]he Guardian has confirmed that Senate leaders have removed the language as they prepare to bring the bill to the floor for a vote, after the director of national intelligence, James Clapper, assured them in a recent letter that the Obama administration was looking for its own ways to disclose more about its highly controversial drone strikes.

“The executive branch is currently exploring ways in which it can provide the American people more information about the United States’ use of force outside areas of active hostilities,” Clapper wrote to the leaders of the Senate committee, Democrat Dianne Feinstein of California and Republican Saxby Chambliss of Georgia, on 18 April.

CC'ed on the letter are the heads of the House Intelligence Committee, Mike Rogers and Dutch Ruppersberger. This decision wasn't in their hands, but even if it was, it wouldn't have played out any differently. Rogers, in particular, is a huge fan of the administration's drone work and has publicly lamented the fact that the slowly-turning wheels of bureaucracy are keeping the US from killing even more people.

Feinstein's relationship with drones is, of course, somewhat hypocritical. She feels there should be stricter regulations on commercial drone usage (partially prompted by a non-commercial drone appearing outside her house during a Code Pink anti-NSA protest) and seems generally opposed to drone surveillance. However, she does stand strongly behind the nation's counterterrorism efforts and believes killing people with drones (rather than just watching them) is more acceptable.

Even more oddly, despite her very public battle against the CIA over control of the so-called "Torture Report" (a battle also marked by a bouts of Feinstein hypocrisy), she's been very supportive of the agency's weaponized aircraft.

Feinstein has long been a defender of the CIA’s drone strikes. During a February 2013 confirmation hearing for CIA Director John Brennan, Feinstein stated that the CIA’s targeting procedures kills only “single digits” of civilians annually, an assertion that cannot be independently confirmed because of the official secrecy surrounding the strikes.

Even some intelligence officials have grudgingly agreed some transparency on this issue would be a positive step for the administration to take. But that number doesn't include James Clapper, whose unintentionally humorous letter asserts that the self-proclaimed "most transparent administration" is actively seeking ways to publicize drone strike numbers. Only in recent months has the administration even acknowledged there might be a downside to its drone strike program. There's been a rollback in the number of strikes and the administration did express its hesitance to kill American citizens with drones, even if they clearly were associating with known terrorists. But this hand-wringing was mostly about public relations and less about the reality of the situation -- that the US would have to piss off yet another country by blowing past its agreement with them to not engage in military strikes on its soil.

So, there's that. And all of that is indeed very little. For years, it's been even less, as Ackerman points out.

The sharing of even basic information about drone strikes has run into a wall of official secrecy. Several independent groups attempt to track the numbers of people killed in the strikes, but no official US confirmation has been possible.

For one obfuscation artists (Clapper) to claim another (the administration) will be taking the lead when it comes to transparency borders on farcical. Now that Senate intelligence heads have complied with Clapper's request, the intelligence community's accountability has been removed. This puts the whole thing in the administration's hands, which isn't really an improvement. I'm sure the current president has no desire to publicly announce his regime has been more deadly than his predecessor's, especially given Bush's proclivity for pushing military/surveillance solutions to the world's problems.

Filed Under: dianne feinstein, drone strikes, james clapper, saxby chambliss, transparency

CISPA Take 3: Feinstein & Chambliss Draft Another Cybersecurity Bill, Designed To Wipe Out Your Privacy

from the only-massive-amounts-of-government-can-keep-you-safe dept

Washington DC: where no bad idea ever truly dies. CISPA, the infamous "cybersecurity" bill that has twice failed to cross the President's desk is back again. This is the Senate's attempt at a cybersecurity bill, so it doesn't sport the same gaudy initials (those belong to the House), but it's still the same set of terrible ideas.

The Senate's previous attempts to write its own cybersecurity bill were supposedly prompted by privacy concerns, something the House version treated as wholly irrelevant to securing our nation from cyberattacks. This new bill may decide privacy is the only thing irrelevant to national security, seeing as it's been crafted by Dianne Feinstein and Saxby Chambliss, both largely supportive of the NSA's (recently exposed) activities.

The new bill sports the following title: Cybersecurity Information Sharing Act of 2014. CISPA without the "p," apparently. Out with the "protection" (which was nominal) and in with the oversharing of cyberthreat information.

The bill, like others before it, grants broad immunity to participating companies, stripping away one of the few reasons these entities might stick up for their customers (and their data) and consider plugging the security hole before turning that info over to both the military, national security agencies and, well, any number of government agencies or competitors. The text of the bill leaves that almost completely unspecified.

The new, 39-page draft bill, written by Sen. Dianne Feinstein (D-Calif.), chairman of the intelligence committee, and Sen. Saxby Chambliss (Ga.), the ranking Republican, states that no lawsuit may be brought against a company for sharing threat data with “any other entity or the federal government” to prevent, investigate or mitigate a cyberattack.

This immunity screws up incentives and encourages questionable behavior, as it to be expected when accountability is removed.

There's a small nod to privacy in the bill, but it carries with it some potential weasel words that could completely undermine the protection.

An entity sharing cyber threat indicators pursuant to this Act shall, prior to such sharing, remove any information contained within such indicators that is known to be personal information of or identifying a United States person, not directly related to a cybersecurity threat in order to ensure that such information is protected from unauthorized disclosure to any other entity or the Federal Government.

Considering what the NSA and others have deemed "relevant" to their counterterrorism efforts, lots of personal data could easily be construed as being "directly related" to a potential cybersecurity threat.

Other protections are equally as malleable. Law enforcement agencies are allowed to avail themselves of cyberthreat information, but only if given written consent from the entity(ies) involved. But that "only" isn't actually a limitation. The paragraph immediately following the "written consent" stipulation creates the same sort of loophole that agencies like the FBI have abused to the point of surreality in the past.

If the need for immediate use prevents obtaining written consent, such consent may be provided orally with subsequent documentation of the consent.

IN CASE OF EMERGENCY, BREAK PROTECTIONS.

Giving law enforcement or indeed any agency this sort of manual override undercuts anything stipulated previously. This encourages a culture of asking forgiveness, rather than permission. Grab the data and justify it post facto. That's no protection at all, especially when granted immunity gives companies absolutely no reason to push back on these oral requests.

This may only be the draft version, and there will be several changes made before it goes up for a vote, but this groundwork is far from heartening. It appears as though no one involved has learned anything from CISPA's two troubled trips through the House, not to mention the new concerns prompted by leaked NSA documents.

Further gestures in the direction of civil liberties and privacy protections are made later in the bill (under a heading "Privacy and Civil Liberties" no less), but those protections are roughly identical to existing policies governing the NSA's (and FBI's) mass collection of American metadata -- oversight and minimization, both of which have been subverted by these agencies.

The bill also consolidates more power within the DHS, creating an "all roads lead to the DHS" method of managing cyberthreat information. If there's one entity which has proven time and time again to be both a) mostly useless and b) prone to abusive behavior, it's the DHS. And yet, the bill calls for the agency to be the central cyberthreat repository.

IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Homeland Security, in coordination with the heads of the appropriate Federal entities, shall develop and implement a capability and process within the Department of Homeland Security that—

(A) shall accept from any entity in real time cyber threat indicators and countermeasures in an electronic format, pursuant to this section;

(B) shall, upon submittal of the certification under paragraph (2) that such capability and process fully and effectively operates as described in such paragraph, be the process by which the Federal Government receives cyberthreat indicators and countermeasures in an electronic format that are shared by an entity with the Federal Government…

Unfortunately, as terrible as the DHS is at determining threats and sharing information, there's probably no way to route around it. The post-9/11 agency is now the government's national security clearinghouse, and everything flows to it, even if it's usually the agency least likely to make productive use of the information. While cyberthreats pile up, DHS agents will be chasing down people taking pictures of public structures.

Believe it or not, this bill putting DHS as the central authority is actually one half-step better than the likely alternative, which is making NSA the central player. For many years now, there's actually been something of a turf war between DHS and NSA over who gets to control the (increasingly massive) cybersecurity budget. And a bill that designates DHS as the "winner" of that turf battle at least gives it a slight preference over the NSA -- though, unfortunately, this bill would let DHS share info with NSA freely, which is yet another problem.

CISPA may have seemed at least half-dead, but Feinstein and Chambliss are breathing life into its lumbering carcass. You would think the last several months, combined with CISPA's earlier struggles, would have resulted in a better cybersecurity bill. Instead, it actually seems worse.

“This is definitely a step back,” said Gabe Rottman, legislative counsel and policy adviser for the American Civil Liberties Union, who was shown a copy of the draft. “The problem is the definitions of what can be shared and who it can be shared with are too broad. In this draft, companies can share data with the military and the NSA. Given the past revelations, I think it’s important to keep this information in civilian hands.”

And that's just one of several problems. Combine the bill's wording with the administration's tacit approval of the NSA's exploit stockpile and you've got something that will generate millions of dollars worth of budget line items while doing very little to make anyone -- even the government itself -- any safer.

Filed Under: cisa, cispa, cybersecurity, dhs, dianne feinstein, homeland security, immunity, information sharing, nsa, privacy, saxby chambliss

Senate Intelligence Committee Agrees To Declassify Key Points Of CIA Torture Report

from the good-news dept

While not entirely unexpected, it's good to see that the Senate Intelligence Committee has finally voted to declassify the key parts of the massive 6,300 page report on the CIA's torture program. As we've been discussing for months, this report, which cost $40 million and has been progressing for years, has been the subject of a pretty big fight from the CIA. It was expected that the Intelligence Committee would approve declassifying the executive summary -- which itself runs 480 pages -- along with "20 findings and conclusions" from the report. It seemed clear that the Democrats on the committee would support declassification (and President Obama has supported it as well), though it was unclear if Republicans would. Yesterday, we noted that Republican Senator Susan Collins announced her support for declassification, while also directly calling the CIA's program "torture," -- something that others on the committee have been afraid to do.

What's a bit surprising is that the vote wasn't even close: 11 to 3 in favor of declassifying the report, and even the highest ranking Republican, Saxby Chambliss voted in favor of declassification, though he did so under what appears to be a bit of a protest. His statement about the vote certainly sounds like sour grapes, rather than strong support:

"Today, I voted in favor of sending a portion of this majority report to the executive branch for declassification. Despite the report’s significant errors, omissions, and assumptions—as well as a lot of cherry-picking of the facts—I want the American people to be able to see it and judge for themselves. In addition, this study has been an expensive, partisan distraction that has hindered the committee’s ability to provide oversight of current national security issues, including NSA reforms, cybersecurity, Russia, Syria, and Afghanistan. I hope we can put this behind us and focus on the national security challenges at hand.

While I agree with some of the conclusions in this report, I take strong exception to the notion that the CIA’s detention and interrogation program did not provide intelligence that was helpful in disrupting terrorist attacks or tracking down Usama bin Ladin. This claim contradicts the factual record and is just flat wrong. Intelligence was gained from detainees in the program, both before and after the application of enhanced interrogation techniques, which played an important role in disrupting terrorist plots and aided our overall counterterrorism operations over the past decade."

Another Republican on the committee, Tom Coburn also called it torture, though he insisted that the CIA did it in "good faith" and voted "present" rather than in favor of declassification.

“I agree that some of the more extreme Enhanced Interrogation Techniques (EITs) could be considered torture, and that in the future this country should not rely on such techniques. Yet, at the time, they had legal sanction. Readers of the report will make their own judgments about how they were implemented. I believe that the CIA acted imperfectly, but in good faith and under great urgency to prevent an attack from a little understood enemy that had brought devastation to our shores."

Feinstein was willing to call it "a stain on our history that must never again be allowed to happen" but refused to call it torture.

Of course, the "fight" is not over yet. There will certainly be a fight over how the declassification is handled and the public won't see the report for many, many months. Senator Mark Udall, who has been a big critic of the intelligence community for a while, has asked that the CIA not handle the declassification itself, knowing that it will over-classify:

"Following today’s historic vote, the president faces what I believe should be a straightforward question. He can defer declassification decisions to the CIA — which has demonstrated an inability to face the truth about this program — or pass this authority to the Director of National Intelligence or hold on to the redaction pen himself. The president needs to understand that the CIA’s clear conflict of interest here requires that the White House step in and manage this process."

Of course, throughout the past few weeks, more and more details of what's in the report have been leaked to the press (including some more leaks today, which we'll try to write about shortly)...

Filed Under: cia, declassification, dianne feinstein, mark udall, saxby chambliss, senate, senate intelligence committee, tom coburn, torture

Senate Republicans, Trying To Score Political Points, Claim Democrats Revealing Spying Scandal Puts Lives At Risk

from the insanity dept

The Senate/CIA spying scandal continues to get more and more ridiculous. The latest is that it's turning into a political fight between Democrats and Republicans in the Senate, rather than what it really is: a Constitutional crisis concerning the separation of powers and the ability of Congress to oversee the executive branch's intelligence community. You would think that other Senators would line up behind Senator Feinstein's anger over the CIA directly spying on Senate Intelligence Committee staffers who were compiling a detailed report into the CIA's use of torture.

But, they're not. This first became clear when the top two Republicans on the Committee more or less spoke out against Feinstein:

Many of the Republicans on the intelligence committee didn't share her position. The panel's top Republican, Sen. Saxby Chambliss of Georgia, said he and Ms. Feinstein "have some disagreements as to what the actual facts are."

Others criticized her for airing her concerns so openly. "I personally don't believe that anything that goes on in the intelligence committee should ever be discussed publicly," said Sen. Richard Burr (R., N.C.).

Burr's comments are particularly chilling, as he's actually likely to replace Chambliss as the top Republican -- meaning that if the Republicans recapture the Senate, he's likely to take over Feinstein's job as the chair of the Intelligence Committee. Think about all the stonewalling the Committee currently does. Then picture the guy who said that quote above in charge.

And, in the last day it's gone even more haywire, as Burr and other Republicans are now trying to use this as a political gambit to claim that Senator Mark Udall (a Democrat and the one who really called attention to the CIA's actions) somehow leaked classified info in revealing the CIA's actions. According to Politico, even though Republicans have leaked far more info, they see this as a chance to attack Udall, a first term Democrat known for actually standing up for civil liberties and the rights of the public (how dare he):

Republicans say that not only has the committee’s chairwoman, Sen. Dianne Feinstein (D-Calif.), provided selective information to the public about improper CIA conduct, but they are also now pointing the finger at Sen. Mark Udall (D-Colo.).

The Colorado Democrat, Republicans say, shouldn’t have disclosed internal Senate proceedings over the CIA investigation — something that some Republicans privately say should warrant an ethics committee review.

Democrats counter that Republicans are now engaging in a partisan witch hunt aimed at hurting Udall politically and providing cover to the CIA and the George W. Bush’s administration’s handling of the controversial interrogation and detention program.

I've made it clear before few things annoy me more than partisan bickering in Congress (which is why we rarely even mention which party politicians belong to -- unless, as here, it's a part of the story). And this is a particularly stupid issue to have partisan bickering over. Senate Republicans really think that bashing Udall is a better strategy than making sure that they can have real oversight of the CIA without having the CIA spy on their own staff?

Besides even the arguments that Udall revealed sensitive information, or that it deserves an "ethics" review are incredibly weak. The concern stems from the letter Udall sent the President last week concerning the nomination of a new CIA General Counsel. In it, he mentioned the following:

As you are aware, the CIA has recently taken unprecedented action against the Committee in relation to the internal CIA review, and I find these actions to be incredibly troubling for the Committee's oversight responsibilities and for our democracy. It is essential that the Committee be able to do its oversight work -- consistent with our constitutional principle of the separation of powers -- without the CIA posing impediments or obstacles as it is today.

That reveals nothing that appears to be particularly sensitive or classified. Instead, it actually was general enough that it left many people scratching their heads. But to hear Senator Burr talk about it, he acts as if this information puts the lives of people at danger:

“I think Mark did make some public releases that were committee sensitive information, but that’s for the committee internally to handle,” said Burr. “That’s being reviewed right now.”

Burr added: “If you look historically, the committee has cleaned up any mistakes that members have made. Members can do whatever they want to. My concern is that the release of information could potentially causes the losses of life to Americans. That to me, is a threshold that should be addressed.”

Oh come on. Seriously? By mentioning the fact that the CIA searched the network of the Senate Intelligence Committee staffers, it means people will die? Who does he think he's kidding? We know that there are always ridiculous claims whenever there are intelligence community leaks about "lives in danger" (which almost never pan out to be true). But at least in those cases, there's an argument that could be made how the revelations might tie back to national security issues. There is no such thread here at all. This is not about the CIA spying on potential terrorists. It's about them spying on their overseers, and rather than recognize what this means for their own interests Senate Republicans are pretending that its putting people's lives at risk?

Filed Under: democrats, dianne feinstein, mark udall, politics, republicans, richard burr, saxby chambliss, senate intelligence committee, spying scandal

Senate Intelligence Committee Has Been Able To Challenge Classification Of Documents For Forty Years; It's Just Never Done It

from the going-to-need-a-thorough-dusting-before-being-usable,-it-would-appear dept

More problems have surfaced related to the overseers that are supposed to be providing the oversight the NSA keeps pointing to while swiftly sweeping terabytes of data under its brand-new Utah rug. A few representatives have expressed their frustration about keeping the public in the dark, but have seen little opportunity to rectify the situation due to the relevant documents being classified.

Ali Watkins, writing for McClatchy, points out that these reps' hands haven't actually been tied this whole time.

Outspoken members of the Senate Intelligence Committee have said frequently that they wanted to warn the public about the National Security Agency’s sweeping collection of telephone records but the program’s highly classified nature prevented them from making public reference to the programs.

That, however, is not the full story. Buried in the pages of Senate Resolution 400, which established the Senate Select Committee on Intelligence in 1976, is a provision that allows them to try. Across those nearly 40 years, it’s never been used.

The committee’s failure to make use of the provision even once, critics say, underscores a problem with congressional oversight: Congress has proved unwilling to openly question the intelligence agencies’ claims that something must remain secret.

Four decades without a single challenge being raised. That's rather odd (or obsequious, if you prefer), considering the provision was added with the intent of providing an adversarial avenue to prevent intelligence agencies from controlling the dialog. This addition was added as the Church Committee was replaced by the Senate Intelligence Committee.

Senators foresaw the likelihood of a conflict between the intelligence agencies and the legislative branch. The legislation that established the committee called for it to “provide vigilant legislative oversight over the intelligence activities of the United States.”

As a part of this oversight, Section 8 of the resolution lays out a process by which a member of the Intelligence Committee may seek the declassification of information that he or she thinks is of public interest, even if the executive branch labels the material top secret.

“The select committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure,” the section reads.

If these senators saw the possibility of conflict 40 years ago and deemed it necessary to add in some balance, why has every representative since that point refused to challenge intelligence agencies?

One reason is the Intelligence Committee itself, which has tended to take the side of the agencies or the administration. Back in 2003, Sen. Bob Graham challenged the classification of a portion of a report pertaining to the 9/11 attacks. Despite the fact that such challenges are supposed to be put to a vote within the committee, Graham received a letter back stating his request had been denied without a vote.

This problem continues to this day as the Senate Intelligence Committee headed by Dianne Feinstein and Saxby Chambliss has been more interested in coming to the NSA's defense and pushing through extensions of Bush-era policies with little to no debate. When the news first broke about the NSA's court order to Verizon demanding records on millions of customers, Feinstein and Chambliss said they'd known about the program since 2007. The problem is, many other senators didn't know, or didn't know the extent of the collections.

With representatives like Feinstein and Chambliss running interference for intelligence agencies, it's unlikely any such challenges would have survived a committee vote -- if they received one at all. But a larger problem is the fact that Senators themselves seem to be unaware such a provision exists, including one of the most vocal opponents of the NSA's programs, Ron Wyden.

Asked about the authority, Wyden confessed that he didn’t know the provision existed. His Intelligence Committee colleague Sen. Tom Coburn, R-Okla., also said he wasn’t aware of it.

Once again, we have an entity that the NSA points to as the all-important "oversight" being cut out of the loop by those heading up a committee that should, at least part-time, engage in an adversarial role. The Intelligence Committee's leaders have gone completely in the opposite direction, acting as a PR flack for the agency and holding as many cards as possible close to their chests.

If Feinstein and Chambliss were aware of this provision, they certainly never attempted to use it, much less inform anyone critical of the government's surveillance programs. Those heading up the House Intelligence Committee have withheld information from both long-term Congressmen and newly-elected representatives. It's not much of a stretch to believe the Senate Committee has done the same.

That the NSA uses the term "oversight" to grant its overreach an air of legitimacy is no small matter. It's very hard to believe the agency heads are ignorant of the protective wall these committee heads (both in the House and the Senate) have erected around them. But it's even more disturbing to find out this sort of behavior has gone on for nearly four decades -- that representatives aware of the provision allowing them to challenge overclassification have instead chosen to place the interests of these agencies ahead of the interests of the public.

The idea of a secret agency being "subject" to oversight has always been a bit of a joke. As more ugly truth has risen to the surface, the joke has morphed into a profane buzzword the agency tosses around as post facto whitewash to give all of its transgressions a thin sheen of respectability.

The real problem is that the committee and the agency's desires seem to be permanently intertwined. If 40 years have gone by unchallenged through regime changes and periodic bursts of "throwing the bastards out," it's unlikely the next 40 years will bring any remarkable changes.

Filed Under: classification, dianne feinstein, over classification, ron wyden, saxby chambliss, senate intelligence committee

The Tide In Congress Has Shifted Against NSA Surveillance

from the it's-not-going-to-last dept

The surprisingly close vote against the Amash amdendment in the House last week signaled a real (and somewhat momentous) shift in Congress against the NSA's surveillance practices. While some have tried to brush it off because the amendment failed, the vote was so close that even supporters of the program have realized it needs to change. On top of that, more and more of those who voted against Amash have since made public statements about how they're against the NSA practice as well, but they just didn't like the Amash amendment itself. It's even gotten so crazy that one of the staunchest defenders of NSA surveillance, Senator Saxby Chambliss, has even admitted that changes need to be made to "make things more transparent." That's certainly not an agreement that the program needs to go, but this is the same guy who said that Congress shouldn't even debate the issue last year when the FISA Amendments Act was up for discussion. For him now to admit that they need to be more transparent is a very clear statement that even he realizes the programs are in trouble.

The NY Times has a detailed look at how the momentum in Congress is clearly against the excessive surveillance by the NSA, even if the Amash amendment didn't pass. It notes that when the amendment was first proposed, most felt that only "wingnuts" would vote for it. Then nearly half of the House did... and many who didn't are making it clear that the program needs to change.

On Friday, Ms. Pelosi, the House minority leader and a veteran of the Intelligence Committee, and Mr. Hoyer dashed off a letter to the president warning that even those Democrats who had stayed with him on the issue on Wednesday would be seeking changes.

That letter included the signature of Mr. Conyers, who is rallying an increasingly unified Democratic caucus to his side, as well as 61 House Democrats who voted no on Wednesday but are now publicly signaling their discontent.

“Although some of us voted for and others against the amendment, we all agree that there are lingering questions and concerns about the current” data collection program, the letter stated.

Similarly, the Washington Post is also noting that reform of the NSA programs is "inevitable" at this point. It highlights a proposal from Rep. Adam Schiff to create a pool of attorneys who will represent "the other side" in FISA court hearings, so that there's at least some sort of adversarial hearing. However, the article then notes that there are a ton of different proposals being introduced to scale back the NSA's efforts:

Indeed — whatever the chances of Schiff’s proposal — what is striking is the myriad of different angles from which lawmakers are now trying to chip away at this once seemingly impregnable NSA surveillance monolith. There is the proposal to require the FISA court to declassify key opinions authorizing surveillance, which is backed by at least a dozen Senators, including (ostensibly) by some Dem leaders. There is another proposal to require Senate confirmation of FISA court judges. Senator Richard Blumenthal has also suggested several other ideas designed to bring transparency to the FISA court proceeding and provide for outside groups to weigh in before the court authorizes the government’s request.

And there are more coming beyond that as well. Basically, it's becoming quite clear that Congress isn't going to let this slide. All of this brings to mind two key points:

1. For all the Ed Snowden bashing going on among officials, his whistleblowing is going to create at least some sort of change. Whether it goes far enough is still yet to be determined, but the leaks clearly were not ignored and are having a very, very real impact. I still find it difficult to see how those in Congress who are supportive of reforming the surveillance efforts are still attacking Snowden. If he wasn't whistleblowing, then why are they now (finally) eager to change the program? Clearly, he was exposing abuse -- abuse which even those in Congress now admit is a problem.
2. This also highlights the other big lie from major defenders of the program, in which they like to suggest that everyone in Congress was aware of and approved these surveillance programs. That clearly is not true. If that was the case, Congress wouldn't be quite so willing to change things. Yes, there is the cynical truth that some who probably did know and did support it are now changing their tune once they've realized that the public isn't so happy about this, but that's really yet another reason why such secrecy is a problem. Congress is supposed to represent the people, and now that the public is making it clear that they're not happy, Congress is moving to (try to) fix these programs.

Filed Under: congress, nsa, nsa surveillance, saxby chambliss, surveillance, transparency