LEAKED: White House's Bogus Talking Points On Why Senate Should Trample The 4th Amendment
from the lovely-stuff dept
As we noted yesterday, there was a "debate" in the Senate concerning the FISA Amendments Act renewal, and four specific amendments that some Senators tried to add to it to make the renewal less problematic. If you haven't been following this whole mess, you can read back through our FISA Amendments Act stories here, but the short version is that this is the bill that "legalized" warrantless wiretapping -- and which (it has since been revealed) is likely being used by the NSA to collect reams of data on Americans, despite the bill's plain text suggesting that it can only be used on foreigners. At issue is that the FISA Court has apparently issued an "interpretation" of the bill, which allows for a very broad reading of the text -- so broad, that it likely contradicts what most people believe the bill says. Only a small group of people know what this secret interpretation is, and while sitting Senators and Congressional Reps can find out, most do NOT have staff members with the necessary clearance to explain it to them. For this reason, most of the people voting on this bill have no idea how it is being used, and sometimes argue that it is not being used in ways that it is almost certainly being used (i.e., to scoop up data on many Americans without warrants). These provisions -- the FAA for short -- were set to expire last year, but were renewed for one year, ostensibly to allow for "real" debate. Of course, despite having a whole year, no debate appeared, and instead we got yesterday's charade.
Four specific amendments to try to fix (or, at least, to minimize the damage) were proposed. The EFF has a pretty quick rundown of the four proposed amendments. The White House has been urging the Senate to reject all of them and to extend the FISA Amendments Act for five more years with no questions asked. Three of the proposed amendments were already rejected last night. This morning, a short debate and then a vote will progress on the last, the Wyden-Udall amendment. Even though the other three have already been rejected, we'll explore the talking their points too, but let's start with the talking points on the Wyden-Udall amendment. Here's the White House summary:
What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.That's a fair assessment and seems perfectly reasonable. Here's the EFF on why this is important:
Sen. Ron Wyden, one of the most ardent defenders of civil liberties in the Senate, has been asking the NSA for months for information on how the FISA Amendments Act has impacted Americans.So what are the talking points from the White House for why this is a bad thing?
The NSA has so far refused, yet, as the New York Times reported in 2009, we know the NSA was still intercepting domestic communications in a "significant and systematic" way. We also know the secret FISA court ruled, on at least one occasion, that the government had violated the Fourth Amendment when conducting surveillance under the FAA. Yet the NSA has rather unbelievably claimed releasing the number of Americans whose privacy has been violated would violate those same Americans' privacy.
Ron Wyden's amendment would force the NSA to come clean and give a general estimate of how many Americans have been affected by this unconstitutional bill, and finally give us information Americans deserve.
In addition, another Wyden amendment would clarify that the acquisition of American communications is prohibited without a warrant. Sen. Wyden has accused the government of conducting "backdoor searches," whereby the government collects communications of foreign individuals talking to Americans, but later goes back into the government's database of intercepted communications and reviews the Americans' communications. Sen. Wyden hopes this clarification to the law will help guard against further intrusive spying on American communications.
- The Administration opposes this amendment. The goal of this amendment is to obtain an estimate of the number of U.S. persons' communications that may have been collected. Two independent inspectors general have determined, and reported to Congress, that it is not feasible to provide actual numbers or estimates. They also found that an effort to provide such numbers by deliberately trying to identify U.S. person information would adversely affect the privacy of any U.S. persons whose incidentally collected communications may exist within the collected data.
- Representatives of the Intelligence Community have briefed the Judiciary and Intelligence Committees in more detail as to why it is not feasible to provide such numbers or estimates and stand ready to answer questions from other Members in a classified setting.
- FAA contains significant privacy protections for U.S. persons, to include extensive reporting to Congress to allow Congress to assess the privacy impact of FAA on U.S. persons.
The idea that it is "not feasible" to come up with a number is silly, however. There are ways to estimate these things, and it's nonsense that they won't provide an estimate. It certainly would not compromise security to admit that. It might just compromise the fact that the NSA and the administration are abusing the FAA to spy on tons of Americans.
The "briefing" members bit is also fairly bogus. We're talking about the interpretation of a public US law. That shouldn't require a Senator to go into a secret room to get a secret briefing. But, more importantly, as mentioned, most Senators simply do not have staff with the necessary clearances for such a briefing -- so while a member could take the initiative to learn this info, they are both unlikely to actually do so and if they do, unlikely to have an expert on hand who can help explain what it all means.
Finally, the argument that there are "significant privacy protections" is belied by the fact that the NSA has already been called out for violating the 4th Amendment under this act at least once. That, alone, should call for further scrutiny, but supporters of the FAA are twisting this around to claim that "the system works." As Julian Sanchez notes, the existing oversight might catch accidental abuse, but cannot and will not catch systematic abuse, which is what it appears is happening.
So these "talking points" hardly address the problem, and only serve to further mislead, as the White House looks to protect its own administration's domestic surveillance activities. When President Obama was originally running for office in 2008, he campaigned against these provisions (before eventually voting for them). Apparently, that campaigning was a flat out lie. Now he's not only supporting the provisions, his administration is being willfully misleading concerning what they mean.
Moving on to the (already rejected, but still important) Merkley Amendment. This one involved requiring that secret FISA Court rulings that interpret the FAA be made public (in redacted form, if necessary). This seems eminently reasonable. Who could be against that? Well, the White House, for one. Here's why:
- We oppose this amendment. The Executive Branch works diligently to ensure Congress is fully informed of the intelligence collection operations under FAA, notwithstanding the need for the Executive Branch to carry out certain sensitive intelligence activities in a classified manner.
- As part of Congress' intensive oversight of FISA activities, the Intelligence and Judiciary Committees receive, in classified form, all FISA Court opinions that include a significant interpretation of FISA provisions.
- We have committed to reviewing FISC opinions for release to the public with necessary redactions to protect national security equities and that effort is ongoing.
- This process must, by necessity, be undertaken with great care. In many cases, classified information is so intertwined with the legal analysis that redacting the classified information leaves a document that lacks any meaningful analysis. Because the Executive Branch is already undertaking a review of the FISC opinions for possible public release, we believe this amendment is unnecessary.
Just this very debate -- and this very document -- prove that the White House isn't about keeping Congress "fully informed" but about pulling the wool over their eyes with misleading statements and kinda/sorta true in the letter, but bogus in the spirit, arguments. Members of Congress have flat out said that the FAA does not impact Americans' communications at all, when that it's known to be absolutely false. Also, the fact that the administration may provide classified briefings to Congress is, again, besides the point. We're talking about allowing the public to understand the secret interpretation of a law that impacts many Americans directly (and in which that interpretation is almost certainly contrary to the plain language and public belief about the bill), and the White House falls back on this "well we'll tell you in secret" argument?
The idea that the administration has committed to reviewing FISA opinions for public release is equally laughable. This administration has been one of the most secretive on record when it comes to exposing this kind of information, all while patting itself on the back as being the most transparent.
Moving on, we have the rather basic Leahy Amendment that shortens the date on which this extension expires from 2017 back to June 1 of the 2015, to basically move in the walls for the next time we'll have this debate in the closing days before "OMG TERRORISTS WILL DESTROY US ALL!!!@!@" again. Rather than simply punting the ball on this issue as far down the field as possible, Leahy is trying to force at least some review within the term of Obama's presidency, rather than long after it's over. This, too, was voted down so the longer timeline stays in place. The White House is pleased, for a whole bunch of completely bogus reasons:
- We support the House passed sunset date of 2017 and oppose any effort to shorten the sunset date to 2015. The extensive congressional and judicial oversight and the strong track record of compliance supports an extension longer than, not shorter than, the original authorization.
- Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.
- Frequent Congressional and public debate on intelligence authorities poses a greater risk of inadvertent disclosure of classified information.
- No additional reporting requirements are necessary. Section 702 of FISA is a well calibrated statute that provides for ample oversight by all three branches of government. This oversight framework ensures robust protections for the privacy and civil liberties of U.S. persons.
That second point is the real doozy. Basically, the White House doesn't want this debate, because Senators who know what kind of scam they're pulling might (*gasp*) accidentally reveal too much. So, let's just not talk about it at all. And let the NSA keep abusing it. Because, otherwise, we might actually find out about the abuse. As for the "oversight" claim, I think we've already covered just how completely bogus that claim really is.
Finally, there's the Paul amendment, which serves to reinforce the basic principles of the 4th Amendment, in reiterating that all communications are subject to the 4th Amendment's limitations on searching. Currently, many in law enforcement rely on some really questionable precedents to argue that people don't really have an "expectation of privacy" in their email. It's disingenuous in the extreme. This amendment got voted down by a whopping 79 to 12 votes. I'm sure that pleased the White House, who argued the following:
- We strongly oppose this amendment as it will effectively repeal the FISA Amendments Act and other federal laws by requiring a probable cause determination to obtain information on our foreign adversaries located overseas. As such, it would overturn years of federal law.
- This proposed amendment would severely limit the effectiveness of law enforcement, authorities at all levels of government. For example, Governments rely on legal tools such as grand jury subpoenas. The use of such tools would be prohibited under the amendment if that information is drawn from almost any system of records.
It's clear that the FISA Amendments Act is about to be extended, and the White House, even with completely bogus talking points, will prevail. But, reading through these talking points is just highlighting the depths to which our government will stoop to make sure they can continue to trample the basic principles of the 4th Amendment.