Bizarre: Democrats In Congress Agree To Give Trump More Of The Spying Powers He Complains Were Abused Against Him
from the someone-explain dept
If ever there were a time to end Constitutionally questionable FISA surveillance powers it should be now. Democrats have been, quite rightly, concerned about an out of control Trump administration, abusing the powers of government to target his enemies and critics. Republicans have been screaming from the heavens, quite rightly, about the FBI’s abuse of the FISA process to conduct surveillance on members of the Trump Campaign. And all this is coming at a time when the crown jewel of the program — the phone metadata surveillance — has been shown to have been a huge, wasteful mess that has been effectively useless.
And it’s up for renewal. So just kill it.
But, no, that’s not how Congress works. Instead, earlier this week, the House worked out a bipartisan “compromise” that lets them each claim victory — when all it really does is reauthorize powerful, frequently abused, Constitutionally-questionable surveillance powers — the very same powers that the Trump administration has been insisting are being abused by “the deep state” against the President himself. As Marcy Wheeler explains, the final bill involved Rep. Adam Schiff — who ran the impeachment effort against Trump, pointing out how incompetent and dangerous Trump can be — watering down an earlier proposal to make sure that Trump has much greater surveillance powers with less oversight.
Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.
She goes on to detail the rather sneaky language in the bill that seems designed deliberately to give William Barr could use the program to hide some pretty scary shit:
Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it ?would harm to the national security of the United States.? Outrageously, they don?t even have to convince a judge that such harm is real. A court ?or other authority of the United States? could agree with such a finding. The Attorney General is ?an authority of the United States.? So Attorney General Bill Barr ? the father of the first subpoena based dragnet ? could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that?s the case.
This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.
I’m sure that won’t be abused at all…
Of course, Bill Barr is thrilled with this outcome:
“I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people.
I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG?s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms.
It is of the utmost important that the Department?s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward. This legislation deserves broad bi-partisan support.”
Because none of this makes sense any more, the bill has both bipartisan support — and bipartisan opposition, with the opposition coming from those who tend to actually fight to protect our civil liberties from either party. CNN has some of the details:
But the agreement has also come under fire from lawmakers in both parties, criticized by both liberals and libertarian-leaning Republicans for not going far enough to address privacy concerns.
In a sign of the odd alliances over the vote, both the leader of the conservative House Freedom Caucus, Rep. Andy Biggs, and the co-chairs of the liberal Congressional Progressive Caucus, Reps. Pramila Jayapal and Mark Pocan, opposed the measure.
“It’s not real reform,” said Rep. Zoe Lofgren of California, a Democratic member of the House Judiciary Committee who took part in the negotiations with Democratic leaders.
On the Senate side, Senators Rand Paul, Mike Lee, and Ron Wyden have all complained about the bill as well — with threats to block and requests for Trump to veto the bill.
And, of course, privacy advocates are reasonably concerned about this as well. The ACLU has asked Congress to vote against the bill:
Over the last several years, it has become abundantly clear that many of our surveillance laws are broken. The Foreign Intelligence Surveillance Court is not equipped to protect Americans? rights -?with an Inspector General report finding a litany of errors in the government?s applications to the court to surveil Trump campaign advisor Carter Page. During a House hearing last month, FBI Director Christopher Wray agreed with the characterization of at least a portion of the surveillance of Carter Page as illegal. Also last month, the FISC court itself accepted the Justice Department?s position that at least two of the surveillance applications for spying on Page were ?invalid? and the court took extraordinary steps to order the government to try to remedy its wrongdoing and avoid a repeat. Despite the secrecy around FISA proceedings, the Page episode offers a window into the abuses that predictably follow from giving the government extraordinary powers with minimal checks and no meaningful due process.
At the same time, Section 215, which is one of the Patriot Act provisions set to expire on March 15th, has been used to engage in large-scale collection of Americans? information, and the call detail record program operated under the authority has been suspended following compliance violations that resulted in unlawful collection of information.
Despite this record, disappointingly, the reforms contained in H.R. 6172 are minimal ?in many cases merely representing a codification of the status quo. In addition, the bill contains provisions that would be a step back from even our flawed current law, including an additional criminal penalty. Given this, we believe that a short six week extension of the expiring
One hopes the criticism of the bill — and the bizarre situation of Trump possibly signing a bill that continues the program he’s been railing against (while pretending to limit it) — leads this bill to die.