As the Senate does its little song and dance today over surveillance reform, kudos to the Wall Street Journal's editorial board for producing what has to be one of the most ridiculous opinion pieces on this debate to date. It's called The Anti-Surveillance Rush
, and its main argument is that the Senate shouldn't be "rushing" through this debate, and that it should instead simply do a clean extension of section 215 of the PATRIOT Act to allow for further debate. This is wrong and it's clueless. The WSJ editorial board can be nutty at times, but the level of cluelenssness displayed here really takes it to another level. Let's dig in.
The Senate is supposed to be the cooling saucer for political passions, but surveillance opponents want it to be a slip ’n slide instead: They want the Senate to accept wholesale revisions to counterterrorism programs with little if any debate before Congress skips town for vacation at the end of the week. We hope Senators show more respect for their institutional dignity.
Little if any debate? Are they serious? This round of debate started almost exactly two years ago when Ed Snowden revealed the extent of the phone metadata collection program under Section 215. There have been numerous hearings, tons of public debate, articles, books, movies
and more discussing this very topic. To pretend that this is a last minute debate is simply ridiculous. As for the claim that these are "wholesale revisions," most everyone admits that the changes are really not that major, but rather a small step towards actually respecting the 4th Amendment, but without any real changes to overall capabilities.
The House jammed the Senate last week with a bill that passed 338-88 and remakes intelligence collection of metadata phone records. House leaders of both parties know that floor time is limited and that the legal authorities for metadata, roving wiretaps for people who move across the U.S. border, and several other programs lapse in June. So their ultimatum is either to wave through their bill or undermine national security.
Almost none of that is true. After all, there was a similar debate last year on a nearly identical bill, and there has been widespread discussion about this for months. The fact that Section 215 sunsets next week has been known since the last renewal, and all of Congress has had years
to work on a new solution.
In fact, let's compare this to another piece from the WSJ editorial board two years ago, in which it celebrated Congress's decision
to renew the FISA Amendments Act (which houses a similar surveillance program) with little to no debate at all. There, the WSJ was excited:
With scarcely any notice, much less controversy, they did at least preserve one of the country's most important post-9/11 antiterror tools.
In September the House passed the "clean" five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky's Rand Paul.
The bill was then whistled through 73-23 and Mr. Obama signed it Sunday night with no public comment other than a one-sentence statement from the White House press secretary indicating that the bill had been signed. Meanwhile, the press corps was wigging out about Facebook's privacy settings.
So, as long as it's granting more power to spy on us, the WSJ is against public debate. When it's about limiting such spying, the WSJ whines about how there's not enough debate. Fascinating.
Back in 2012, the editorial board was so positive that the spying was overblown that it mocked those who had worried about these programs (this was just months before the Snowden revelations:
That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.
Funny how it's tough to have "apoplexy" when all the details are kept secret. Of course, now we know how much spying was being done, Congress actually wants to fix it, and the WSJ can't have that.
Back to the present article. The House did not "jam" this to the Senate. This issue has been known about and discussed for months. And, basically no one -- not even within the intelligence community -- is arguing that this "undermines national security."
The better outcome would be a clean, temporary extension that allows the Senate sufficient time to consider the details and understand what it is doing.
Bullshit. This has been debated for two years. Everyone -- especially the Senate -- has known about the June 1st sunset since it was put in place during the last renewal. And they still waited until the last minute to do this song and dance. A temporary extension will mean that they'll wait until the last minute of that extension for a similar song and dance and the WSJ can publish another clueless editorial saying we need more time for debate again.
Who do they think they're fooling?
The USA Freedom Act, which the House Intelligence and Judiciary Committees negotiated with the White House, is a panicky political response to the Edward Snowden-inspired frenzy over surveillance
The Snowden leak on this program happened almost exactly two years ago. The USA Freedom Act has been discussed and debated for well over a year in various formats. How is this a "panicky political response"?
Supposedly government spooks are bugging your bedroom and reading your emails—though they aren’t—and politicians want to be able to say they did something about it.
Strawman alert. No one is actually claiming that. They're claiming -- truthfully -- that the NSA is engaged in bulk collection of phone records, a program that two separate review boards by the President found illegal and unconstitutional and the important Second Circuit appeals court found illegal last week as well. Does the WSJ editorial board believe its readers are too stupid to know this?
Yet bulk call log searches are an important analytic tool that aid terror investigations and prevent attacks.
This is simply not true. As has been pointed out multiple times, the intelligence community could not provide a single example where that was the case. The only example presented was how it was used to track down a cab driver in American who sent some money to a questionable group in Somalia. That's it. There is no evidence that it was important in any terror investigations or in preventing a single attack.
From there, the WSJ whines that since the USA Freedom Act leaves data collection to the telcos, all hell is going to break loose:
In the best scenario, this untested leap to replace a framework that has been useful in the 14 years since 9/11 will make intelligence more time-consuming and less efficient. Speed and agility matter in uncovering plots or safe houses. And how multiple databases that are likely to be less secure than the NSA’s will protect privacy is anyone’s guess.
The "less secure" line is a bullshit red herring -- because the telcos already
keep this data, so nothing changes there. It's just that the data is not also
being held by the NSA. Second, the idea that this new process is somehow more time-consuming and less efficient doesn't have any actual support. Telcos have already shown to be all too willing to work closely with intelligence agencies to give them near real-time access when necessary. That's not suddenly going to go away.
But the House bill also declines to define how long telecoms must retain metadata. A year, a month? Who knows? If Washington’s relationship with Silicon Valley grows more adversarial, service providers may conclude it is in their commercial interests to erase these records more or less in real time. In that case the NSA won’t be able to look for a needle because there won’t be a haystack.
First, this seems to confuse "telcos" with "Silicon Valley" when they're very different things. Second, this conflates a bunch of different issues and suggests near total ignorance on the part of whoever wrote this editorial. Many of the records that the NSA wants are the kinds of business records that these companies need to hold onto for some period of time, so the fear of "no logs" is kind of meaningless. But, even if it was true that companies started to flush their logs, so what? There is no requirement that all of our activities be tracked. Law enforcement made due in the past when not everyone was automatically tracked all the time. They can do so again.
Among the GOP presidential field, Marco Rubio has come out in favor of metadata, while Chris Christie gave a thoughtful speech Monday on intelligence and foreign affairs in Portsmouth, New Hampshire.
Thoughtful? The one where he says all civil liberties fears were "baloney"
coming from "extremists"? Yeah, that wasn't thoughtful. That was bombastic bullshit from a surveillance state apologist. Remember, this program was just declared illegal (with a strong hint of not being Constitutional) by the 2nd Circuit appeals court. And the WSJ is defending it.
A rush to the exits is no way to conduct U.S. intelligence, or the affairs of Congress. If a majority of Senators really do want to disarm in the terror war, then they should defend their positions, listen to the other side, and be accountable for the results. Cramming such a major policy into law before a holiday weekend is a failure to treat national security with the seriousness it deserves.
No one is disarming anyone. They're just making sure that the NSA can't unconstitutionally scoop up every bit of metadata under what is an illegal general warrant. And there is no rush. Again, this debate has been two years in the making (or longer if people had actually listened to Senator Wyden). And if this debate deserves seriousness, it should at least start with the WSJ not totally misrepresenting the whole thing.