House Refuses To Consider USA Freedom Amendment Stopping NSA's Backdoor Searches... Even As Everyone Supports It

from the ridiculous dept

As we've noted, there's a new USA Freedom Act in town, and it's on the fast track through Congress. It has some good stuff in there, and is generally a step forward on surveillance reform and ending certain forms of bulk collection -- though there are some concerns about how it can be abused. But one thing that plenty of people agree on, is that even if it's a step, it doesn't go nearly far enough. Last Thursday, there was a markup in the House Judiciary Committee, to help move the bill to the floor, and some amendments were proposed to improve the bill -- all of which got rejected.

What was especially frustrating, was that for at least one key amendment, everyone agreed that it was important and supported it, and yet they still refused to support it. The reasoning, basically, was that the existing bill was the work of many, many months of back and forth and compromises, and the administration and the House leadership had made it clear that it would not approve a single deviation, even if it was really important. The amendment in question was basically a replica of an appropriations amendment from Reps. Ted Poe, Zoe Lofgren and Thomas Massie that we wrote about last year, which surprised many by passing overwhelmingly in the House, only to be stripped out by the Senate. The key idea: ending the ability of the NSA and others to do "backdoor searches" on data collected under Section 702 of the FISA Amendments Act (both the "upstream" collection and PRISM). And even though everyone supported it, they couldn't go forward with it and upset the rest of the process:

It was clear from their comments that a majority of committee members supported the goal of the amendment. Indeed, no member spoke against it on substantive grounds. But Committee Chair Bob Goodlatte (R-Va.) explained that the bill represents a fragile compromise — primarily with members of the House Intelligence Committee (HPSCI) — and that House leadership had made clear the bill would not get a floor vote if the Judiciary Committee amended it. (Whether leadership is carrying the water for HPSCI or vice versa — and what role the administration is playing here — are unanswered questions that deserve their own blog post.) The members were faced with a choice: acknowledge the terms set by House leadership and vote against an amendment designed to restore critical Fourth Amendment protections for Americans, or reject those terms and possibly derail surveillance reform altogether.

That’s where things got interesting, as the members spent an hour thoughtfully parsing what the right course of action was. (In the video, the amendment was proposed at 1:11:00.) More than one member characterized Poe’s amendment as an example of “the perfect being the enemy of the good.” There was consensus that back door searches implicate the Fourth Amendment. But, Goodlatte said, so does the bulk collection of Americans’ phone records — an important statement, given the FISA Court’s controversial rulings to the contrary. By killing the bill’s chances of a floor vote, Goodlatte implied, Poe’s amendment would be a net negative for the Fourth Amendment. Goodlatte also pledged to hold hearings on Section 702 in the near future, and to work with Poe to find opportunities outside of the context of the USA Freedom Act to address the problem.

Other members, though, were not willing to accept House leadership’s efforts to constrain them. Rep. Zoe Lofgren (D-Calif.) posed the key question of the morning: what can members do when House leadership is blocking reform favored by a majority of the House? Poe’s amendment mirrored an amendment offered last year by Lofgren and Rep. Thomas Massie (R-Ky.) to a defense appropriations bill; that amendment passed overwhelmingly, 293–123, with 94 Republicans voting in favor. Lofgren suggested it might be time to consider a discharge petition — a procedural measure by which a majority of House members can bring legislation to the floor for a vote even if House leadership objects. She acknowledged that it’s difficult for the majority to buck the will of leadership, but that this was a case of “right versus wrong,” pitting the Constitution against “lawless behavior.”

Poe showed even more frustration. Addressing Rep. Jim Sensenbrenner’s (R-Wis.) observation that the Committee would have a chance to revisit Section 702 in 2017 when the FAA expires, Poe observed dryly that the Committee was not simply delaying the building of a bridge. It was delaying vital Fourth Amendment protections for Americans. He put the question simply: do politics trump the Constitution, or does the Constitution trump politics? He urged fellow committee members not to let leadership’s threats dictate their vote. He said they should support the amendment and let the political chips fall where they may.

And, yes, of course, in the end the amendment was rejected 24 to 9. I think the whole "perfect is the enemy of the good" argument made by some is clearly bogus in this scenario. The only "good" to come out of this is the fact that Poe, Lofgren and others aren't willing to let this matter drop -- though the idea of waiting until 2017 to address an issue that we already know the majority of the House supports, is pretty ridiculous. Especially when pretty much everyone agrees that we're talking about violations of the 4th Amendment.

Hopefully this means that this issue will get addressed separately, even if not in this particular bill. The fear, as always in this sort of situation, is that after the Herculean effort just to get this far to get this particular bill approved, that no one will have the appetite to continue the process and get the other necessary reforms in place.

Filed Under: backdoor searches, congress, house judiciary committee, nsa, section 215, section 702, surveillance, ted poe, usa freedom act, zoe lofgren


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  1. identicon
    Edward Teach, 4 May 2015 @ 1:46pm

    Does this mean US House is mostly bought off?

    What does this failure to pass an amendment mean?

    I can see a couple of reasons, both of which seem really bizarre.

    First (and probably most likely) the 24 "no" votes are folks looking at the Senate and thinking "this isn't going to pass and if I stick my neck out and vote 'yes' some tea party moran and/or The Kochtopus is going to make this into a huge campaign issue next November". Which leads to a follow-on question, why does the Senate not have the same motivations as the House does to pass this sort of thing?

    Second (and I'm embarrassed even to bring this up), most of the US House is bought off one way or the other, either with massive campaign donations, or some evidence a la Jane Harman's interaction with AIPAC getting caught in an FBI surveillance tape.

    I don't know about anyone else, but I expect some leadership from all the Representatives and Senators. Even if your constituency is a suburb full of GD or LockMart contractors, you have to vote the moral way. Eventually, your suburb full of white welfare victims is going to get caught up in something beyond their control if you make several years worth of dopey decisions.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 4 May 2015 @ 2:49pm

    "USA Freedom Act"
    I rarely use these three letters but
    LOL

    Seriously guys, this is hilarious. They juts wave some flags around, talk about patriotism and Democracy! then they continue to shit on the constitution and everything freedom releated. If i were you i would bail ship before the shitstorm.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 4 May 2015 @ 3:26pm

    surely "It Can't Happen Here" right? This is America and the ethical choice will be made by those elected officials as we've been shown in the past.

    reply to this | link to this | view in thread ]

  4. identicon
    Whoever, 4 May 2015 @ 3:44pm

    The reason they didn't support it

    The NSA/FBI/CIA has got their private parts in a tight bind.

    We just had another Republican congressman come out as gay, How many other representatives have something to hide? And who is perfectly positioned to know about those embarrassing secrets?

    reply to this | link to this | view in thread ]

  5. identicon
    Rekrul, 4 May 2015 @ 3:46pm

    Politician: I believe in surveillance reform!

    Someone else: Here's a bill that will help reform surveillance. Will you sign it?

    Politician: I, umm... We... I think... Umm, no.

    reply to this | link to this | view in thread ]

  6. icon
    That One Guy (profile), 4 May 2015 @ 4:30pm

    Re:

    Politician: You see, when I said I believed in surveillance reform, I was more talking about hypothetical reform, a general belief that it might be worth looking into investigating putting together a committee to study the matter, rather than support for the current reform bills, or any that might be proposed that in any way cause real changes.

    reply to this | link to this | view in thread ]

  7. identicon
    Zonker, 4 May 2015 @ 5:19pm

    Funny, I don't recall the Constitution granting 1/435th of our House of Representatives (the House Majority Leader or the Speaker) veto power over any legislation by preventing a vote from ever occurring.

    Since nobody is willing to use a discharge petition anymore (only 218 representatives needed but has not been used since the Bipartisan Campaign Reform Act of 2002, now largely gutted by the "Citizen's United" ruling) that is even more power than a Presidential veto, which can at least be overruled by 2/3 of Congress.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 4 May 2015 @ 6:15pm

    Guess they will have to learn the hard way. We are as mad as hell, and we are not going to take it anymore. Government of, by, and for the people my ass.

    reply to this | link to this | view in thread ]

  9. identicon
    David, 5 May 2015 @ 12:45am

    Why do they even call themselves "Republicans"?

    A constitutional republic is defined by a constitution spelling out the rules for serving the public good.

    And it's always the Republicans who think that the Constitution puts too many restraints on the rich and powerful manipulating the peons.

    Not that the Democrats' vision of democratic control makes their chosen name look much less satirical.

    If you put all of them into a big bag and clobber it with a big club, it's probably the bag that suffers the greatest injustice.

    reply to this | link to this | view in thread ]

  10. icon
    Uriel-238 (profile), 6 May 2015 @ 12:20pm

    The other guys wouldn't vote for the amendment either.

    See how they get you?

    reply to this | link to this | view in thread ]

  11. identicon
    Pragmatic, 7 May 2015 @ 5:56am

    Re:

    Impression of Family Guy's Lois Griffin: "Nine. Eleven."

    reply to this | link to this | view in thread ]

  12. identicon
    Pragmatic, 7 May 2015 @ 5:59am

    Re: Why do they even call themselves "Republicans"?

    Not quite true until recently, David. The shift to the right was part of the Southern Strategy. Read about it here: http://en.wikipedia.org/wiki/Southern_strategy

    That's where the political polarization of America began. It's where Partisan Nitwit Syndrome began. Richard Nixon has a lot to answer for.

    reply to this | link to this | view in thread ]

  13. icon
    Uriel-238 (profile), 7 May 2015 @ 12:09pm

    The Southern Strategy

    ...was the beginning of it.

    The current era of congressional gridlock came from Tom De Lay's era as the Republican whip for extorting GOP representatives to tow the party line rather than voting their minds. At that point they had to get express permission from De Lay to vote contrary to the party.

    And it was Rovian campaign strategy that took the Southern Strategy to full retard. Specifically, he focused on anger points in order to encourage values voting, that is (for example) getting poor pro-lifers to vote Republican to quash abortion access all the while they're cutting welfare benefits (including children that are the results of denied abortions) and subsidizing big oil, because to the common (impoverished) Republican, it's all about stopping women and gays from having sex.

    (To be fair, it often not about that, but about stopping a Kenyan Islamic terrorist from becoming president. Because, yes that's still a thing.)

    (Also, for the same sake of fairness, most Democrats are also voting on civil rights and small environmentalism, not aware of all the IP maximalism and warmongering and security state pushes made outside the DNC platform. Our campaigns focus on smaller issues while larger issues are ignored and just get worse.)

    reply to this | link to this | view in thread ]


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