Despite Racking Up Three Consecutive Unanimous Votes, FOIA Reform Bill Killed Off By Rep. John Boehner

Failures

from the BEHOLD-THE-SYSTEM-IN-ACTION dept

FOIA reform is now truly dead. Earlier this week, it looked as though Sen. Jay Rockefeller might be the one holding the murder weapon. Despite passing unanimously through the House and the Senate Judiciary Committee, Rockefeller placed a hold on the bill, citing nebulous concerns by two regulatory agencies (FTC, SEC — neither of which were willing to go on the record about their problems with the bill) and something about “law enforcement agencies” being faced with “needless litigation” that would be a drain on their bottom lines. Of course, this ignores the fact that plenty of litigation involving law enforcement agencies is “needless” (because why be proactive about misconduct and abuse when you can just settle later?) and that any agency fighting the War on Drugs/Terror has generally been able to secure funding and equipment with a minimum of hassle.

Rockefeller’s hold provoked a deluge pro-FOIA reform phone calls and emails, leading to Rockefeller releasing his hold and the bill moving on with unanimous Senate consent. This booted it back to the House where it ran headlong into Speaker of the House John Boehner, who immediately tabled it.

Newsweek’s coverage of Boehner’s “opaque” move concludes with this paragraph:

But these improvements may never see the light of day, as Boehner has tabled the bill. In a press conference on Thursday morning, a journalist asked Boehner about the fate of the FOIA reform bill to which he replied, “I have no knowledge of what the plan is for that bill.” If the bill does not make the House’s calendar by the end of the day, the bill dies.

The guy who made the plan for the bill (1. Do nothing) claimed he had no idea what the plan was. If the plan was to kill the reform bill, mission accomplished. Death by Rockefeller was narrowly averted only to result in Death by Boehner — despite the fact that the FOIA reform sailed through the House earlier with a 410-0 vote.

The Hill performed a brief autopsy.

Sen. Patrick Leahy (D-Vt.) on Thursday night officially declared reforms to the Freedom of Information Act (FOIA) dead this year as the House gaveled out of session.

And he blamed House Speaker John Boehner (R-Ohio) for its death.

“And Boehner kills #FOIA improvements,” Leahy tweeted at a reporter a little before midnight after the House finished its work on the “cromnibus” government funding bill — the last item of its agenda for the year.

The wonders of our political system continue. Something that received unanimous support — not only on both sides of legislative branch, but on both sides of the partisan divide — was dismantled by one man. One man who stood in front of a House that had passed the bill 410-0 and said, “Whatever.”

Chances are it was one man swayed by the same regulatory agencies and the industries regulated by them. Transparency advocates suggest Wall Street made a last-minute push to thwart the legislation.

The suspicion among transparency groups is that the financial industry is working to fortify federal open-records exemptions for Wall Street which also exist in states and cities across the country. Those groups also fear the financial industry is aiming to prevent government regulators from erring on the side of transparency when faced with open-records requests for information about the financial industry.

“The negotiation process for this bill has been going on for six months now,” said Amy Bennett, the assistant director of OpenTheGovernment.org and the point person for a coalition of transparency groups working to pass the bill. “But the banks only started raising objections in the last week. Wall Street’s lobbyists are going to their allies on Capitol Hill and are asking them to delay it. But Wall Street just wants to kill the bill.”

Both Sen. Tim Johnson (who argued against the bill before its last-minute Senate passage) and John Boehner have received large amounts of funding from industries tied to Wall Street, according to information gathered by OpenSecrets.org. Boehner stopped the bill in its tracks by keeping it out of Congress’ hands during the final moments of the lame duck session. Boehner’s implicit message is that the good of the special interests outweighs the good of the many. Thanks to this, government agencies are still free to abuse FOIA exemptions and force the truly tenacious to take their chances in the federal court system if they hope to get their hands on documents the government would rather keep buried.

Filed Under: foia, foia reform, john boehner, patrick leahy

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

Politics

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

Former NSA, CIA Director Claims Only ISIS Likes USA Freedom Act, Even As James Clapper Supports It

Say That Again

from the ridiculousness dept

As the cloture vote is set to happen tonight on the Senate version of the USA Freedom Act, the hysterics are getting… well, more hysterical. Michael Hayden (former NSA and CIA director) and Michael Mukasey (former Attorney General) have an opinion piece in the Wall Street Journal dubbing the bill “NSA Reform That Only ISIS Could Love,” which is kind of hilarious given that current Director of National Intelligence, James Clapper (who usually sings in perfect harmony with Hayden) has come out in support of the bill. While the bill has some problems, it is still a step forward (and yes, I’m aware that not everyone agrees with that). But Hayden/Mukasey make a bunch of statements that are just not at all accurate. It starts off with the usual FUD about ISIS and then questions why Reid would present this bill given that:

In that threat environment, one would think that the last thing on the ?to do? list of the 113th Congress would be to add to the grim news. Yet Senate Majority Leader Harry Reid has announced that he will bring to the floor the extravagantly misnamed USA Freedom Act, a major new bill exquisitely crafted to hobble the gathering of electronic intelligence.

Except that’s not true. The bill is not designed to “hobble” electronic intelligence, but to respect at least some of our 4th Amendment rights, and to bar mass collection of the information without limits. Then there’s this:

For starters, the bill ends the National Security Agency?s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies. The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation?s telephone-service providers to comb through the information that remains in their hands rather than in the NSA?s.

First off, they’re simply wrong. It doesn’t require a warrant, but a FISA court order under Section 215. It just limits how broad those orders can be. The reason it’s not a warrant is you can’t get such a broad warrant. Second, the “cumbersome and untried process” is neither cumbersome nor untried. It’s how lots of investigations work today. When law enforcement needs info, it goes to court, gets a court order, and voila. And does anyone actually believe, in this digital age, that there’s any actual “scurrying”? Hell, to make this process easier for the DEA in the past, AT&T was willing to embed employees with the DEA to give them faster access to the database. If anything, these are reasons why the bill doesn’t go far enough. The idea that it somehow takes away US intelligence capabilities is ludicrous. Furthermore, it’s already been noted that ISIS knows how to evade such surveillance: by not using electronic communications. So this has nothing to do with ISIS at all. At all.

Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn?t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.

So we shouldn’t pass this bill because at some future date the FCC might possibly allow companies not to keep these records? Really?

The bill?s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation?period.

Again, misleading in the extreme. When the DOJ is seeking metadata in a criminal case, it’s seeking specific metadata concerning the crime being investigated. This is about stopping the collection of all phone records. Notice that Hayden and Mukasey never bother to explain this distinction. Because they’re being incredibly dishonest.

There’s much more in there, but nearly all of it is dishonest. It claims that “there is no immediate or emergency need” for the bill, totally leaving out the systematic violation of Americans’ 4th Amendment rights and an independent review board finding the program illegal and unconstitutional and a President who asked Congress to end the program. Yet, Hayden and Mukasey insist this program — which has yet to show a single successful example of being used to prevent terrorism — has to remain in place? Really?

And, of course, Hayden and Mukasey have friends. Incoming Senate Majority Leader Mitch McConnell similarly called out the specter of ISIS, despite the fact it’s widely acknowledged that ISIS already knows how to avoid our surveillance efforts (and is focused on the middle east, while the USA Freedom Act is just about domestic phone records inside the US).

The USA Freedom Act has its problems, but it also has some important and useful aspects. The claim that it will somehow help ISIS by preventing such bulk data collection is simply ridiculous and untrue.

Filed Under: bulk collection, fud, isis, james clapper, michael hayden, michael mukasey, patrick leahy, surveillance, usa freedom act

Senator Harry Reid Going To Try To Push Through USA Freedom Act Before GOP Takes Over Senate

Privacy

from the here-we-go dept

There were some rumors that, with the GOP about to take over the Senate, the Democratic leadership might try to finally move forward with the USA Freedom Act. The Senate bill has been languishing, despite it being considered a “compromise” bill that was widely acceptable to both intelligence community folks and many in the civil liberties community. Over the last few months, civil liberties and consumer activists groups have been growing less pleased with the bill, as the deeper they’ve explored it, the more worried they’ve become about some of how it might be abused. However, it’s still considered by many to be a good start, if not (in any way) a perfect bill.

And, now, Senator Harry Reid has made the move to push forward with the bill in the lame duck session before control of the Senate flips.

Reid filed for cloture on the measure late Wednesday, a surprising move intended to address the National Security Agency’s mass surveillance practices before Republicans take over the Senate next year. To advance further, the legislation would need 60 votes to end debate on the measure, and then a majority vote to pass it through the chamber.

It will be interesting to see if they actually have the 60 votes. Part of the delay has been that they weren’t sure that there really were enough votes. And there were still pressures by intelligence community supporters to water down the bill (despite James Clapper saying the bill is okay as is) and by Senators Wyden and Udall to add more privacy and civil liberties protections. If they’re moving for cloture, it may mean that Reid is confident that they have the votes… or it’s a recognition that it’s now or never given the change in control that will happen in January. We’ll find out soon enough if this means there’s enough support, or if Reid just threw a Hail Mary as a final ploy.

Filed Under: bulk collection, congress, harry reid, mass surveillance, nsa, patrick leahy, senate, surveillance, usa freedom act

Senator Leahy Slams DEA For Impersonating A Woman On Facebook

Failures

from the but-what-will-happen dept

Apparently, it’s not just Facebook that is furious with the DEA for impersonating a woman, posting pictures from her phone, in an attempt to get evidence concerning a drug dealer. Senator Patrick Leahy has now sent an angry letter to the DOJ about this situation as well.

I am greatly concerned by recent reports that the Drug Enforcement Administration used the identity of an unsuspecting young woman to create a public Facebook profile to interact with suspected drug traffickers. This extraordinary tactic placed this woman and her family at risk, and I expect the Justice Department to reconsider the use of such techniques.

Senator Leahy didn’t hold back in explaining just why this whole situation was “appalling.”

Viewers of the fake profile, which was only removed from Facebook this month, could believe the woman was currently involved with illicit activities or was actively cooperating with a law enforcement investigation. The DEA agent’s decision to post suggestive photographs of the woman as well as pictures of her young child and niece is appalling and placed them at even greater risk.

I understand that cooperating defendants often provide critical assistance to criminal investigations. However, the decision to cooperate and the nature of that cooperation is a decision to be made by the defendant and the defendant alone. Law enforcement agencies should not risk the safety of innocents or those who are serving their debt to society without their knowledge or consent. Although the Justice Department has indicated that this incident is under review, the U.S. Attorney’s Office for the Northern District of New York has thus far defended the practice. I hope the Justice Department will agree that creating an online profile using an unsuspecting person’s identity to communicate with criminals is unethical, potentially dangerous, and should not be condoned by our nation’s law enforcement agencies.

However, remember, this is the very same DOJ which has argued in other cases that violating the terms of service of certain websites is a violation of the CFAA. But, of course, when the government itself does it, in much more appalling situations, they don’t seem to think there’s any problem.

Filed Under: dea, doj, impersonation, patrick leahy
Companies: facebook

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

Politics

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

Senator Leahy Asks Why The Federal Court System Dumped A Bunch Of Court Documents Down The PACER Memory Hole

Legal Issues

from the bring-them-back dept

Last month, we were among the first to report that the federal court system’s electronic document system, PACER, had deleted a bunch of cases. The folks who run PACER came back with a completely nonsensical defense of the move, claiming they were updating some systems and some of the documents were on older systems that weren’t compatible. Of course, none of that explains why no one figured out how to move those documents to the more up-to-date system. Nor why PACER gave no prior notice of the deletion. Nor why it didn’t even try to work with any one of the many, many public repositories of legal documents out there. Instead, the cases were just deleted from electronic existence.

Senator Patrick Leahy is now asking why.

Created over 25 years ago, PACER is home to millions of court documents that were previously accessible only by requesting them from the relevant court. This often involved a trip to the court clerk’s office and cost considerable time and money. While PACER is not perfect, it provides a significant benefit to the public: at the stroke of a few keys, the public can now search for important briefs, court orders, written opinions, and other related filings, and receive the information instantaneously. Servicing over a million users in the last few years alone, PACER has not only dramatically improved access to information, it has helped increased transparency of the federal judiciary.

Wholesale removal of thousands of cases from PACER, particularly from four of our federal courts of appeals, will severely limit access to information not only for legal practitioners, but also for legal scholars, historians, journalists, and private litigants for whom PACER has become the go-to source for most court filings. It is additionally concerning that this announcement was made without any warning to the public, and without prior notification or consultation with Congress. Moreover, the announcement did not detail what steps, if any, are being taken to ensure that these important case files are properly preserved.

We live in a digital age. Requiring requesters to travel to the clerk’s office of individual courts to retrieve actual documents, or to submit an email request and wait several days for a response, is a dramatic step backwards from the centralized system that PACER provides. Furthermore, it is reported that requests made by email to individual courts could incur a $30 to $60 processing fees–a troubling increase in costs compared to the 10 cents per page that is currently charged to retrieve documents from PACER. PACER was designed to provide easy and affordable access to all members of the public, not just those who have the time and resources to submit and numerous requests to the courts.

He concludes by noting that he urges the Administrative Office of the courts to “take immediate steps to restore access to these documents.” Of course, it would be even better if they finally made PACER free and open to the public, but not deleting past cases would at least be a non-negative step.

Filed Under: court documents, memory hole, pacer, patrick leahy

Former Top FISA Judge Insists USA Freedom Act Is Dangerous Because It Might Mean FISA Court Can't Rubberstamp So Fast

Say That Again

from the say-what-now? dept

Judge John Bates, a district court judge who also served on the FISA Court seems to have decided that his job as a judge is to defend the surveillance state, and with it the judiciary’s role in protecting the surveillance state. Earlier this year, we wrote about Judge Bates sending a letter to Senator Dianne Feinstein, urging that no major changes be made to how the FISA court did its business. Among a number of questionable arguments, Bates also (falsely) claimed that his letter (which only he signed) represented the views of “the Judiciary.” While the Judicial Conference normally is in charge of expressing any views on policies that impact the judiciary, Bates apparently decided (by himself) that since he was secretary of the Judicial Conference and had served on the FISA Court that he could just officially state the position by himself.

That this rather hubristic claim was shot down by multiple experts apparently has not dampened Judge Bates’ insistence that he, and he alone, expresses the views of “the judiciary” when it comes to the intelligence community. As reported in the Wall Street Journal, Judge Bates has sent a new letter, this time to Senator Patrick Leahy, expressing his concerns about Leahy’s new USA Freedom Act, a bill that is a big step forward (though could still use more help). That bill was the result of months of negotiating between the Senate, the intelligence community and the White House. It’s a “compromise” bill in almost every way.

But Judge Bates doesn’t like it. At least in the past, his argument was actually concerning the judiciary, and how some of the proposed reforms might potentially overburden it (even if those arguments weren’t particularly well supported). With this new letter, he more or less shows his hand as a surveillance state apologist, in that many of the arguments have little to nothing to do with how the new USA Freedom Act would impact the judiciary (which, again, Bates claims he alone represents), but rather how it would impact the intelligence community and the executive branch. Here, for example, he’s concerned that if there were a civil liberties advocate allowed to be an adversary on the court, it would mean that the government would be afraid to reveal certain things:

In fact, the participation of the special advocate could actually hinder the ability to obtain complete and accurate information. Introducing an adversarial special advocate in FISA proceedings creates the risk that representatives of the Executive Branch who, as noted, have a heightened duty of candor in ex parte FISA court proceedings would be reluctant to disclose to the courts particularly sensitive factual information, or information detrimental to a case, because doing so would also disclose the information to an independent adversary. This reluctance could diminish the court’s ability to obtain all relevant information, thus degrading the quality of its decisions. Alternatively, it could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA.

That last sentence is quite telling. As a judge, how is it of Bates’ concern whether or not the intelligence community decides to pursue intelligence-gathering efforts? He seems to assume that limiting the ability of the intelligence community to spy on people is, inherently, a problem.

Furthermore, just the idea that the court is more likely to get all the information in a non-adversarial environment seems totally without support. It doesn’t make any logical sense either. Under the existing “ex parte” system, the government has every incentive in the world to distort the facts and provide “just enough” information to get the rubber stamp to come down. Having an adversarial process designed to protect civil liberties can further delve to make sure that all the relevant information is on the table. Why is Judge Bates so afraid of that?

In fact, as Harley Geiger points out, if anyone should know better, it’s Judge Bates. After all, just a few years ago, he was the one who issued a stinging FISC decision accusing the government of regularly misrepresenting things. And yet, now he’s claiming that the government is always nice and open with FISC and wouldn’t benefit from having a third party asking questions?

Furthermore, as Steve Vladeck notes in a detailed response to Bates, it’s bizarre that Bates seems to be saying that he’s concerned about the executive branch’s ability to do surveillance, when the executive branch helped negotiate the compromise that created this bill. Why is Bates so concerned, other than that he’s in favor of greater surveillance?

with respect to Judge Bates?s real concern?that having to provide a special advocate with access to at least some of the classified information upon which surveillance applications are based ?could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA??it?s more than a little telling that the Executive Branch nevertheless supports the Senate bill. If this was really a genuine problem (indeed, some may well think that forcing such a choice is exactly the point), wouldn?t we expect to have heard about it from the intelligence community, the Justice Department, and/or the White House? That is to say, isn?t Judge Bates?s real objection here on behalf of the (apparently content) Executive Branch, and not the judiciary? Even the former FBI General Counsel has openly supported these kinds of reforms?

The same response can be offered to Judge Bates?s concern about the timing of surveillance applications, and the extent to which resolving whether a special advocate should be appointed will slow down cases that demand expedition. One would once again think that, if the intelligence community, Justice Department, or White House was actually worried about this problem, they would not have agreed to the language in the current version of the Senate bill. And a big part of why they probably did agree to this language is because Judge Bates?s timing concerns are a red herring. As he himself concedes, ?the bill would give courts discretion, consistent with the timing requirements imposed by Congress on FISA court action or as otherwise appropriate, to decline to designate a special advocate even when one would, as a default matter, be required.? His concern instead appears to be that even deciding whether a specific case is one in which it would take too long to make that determination will itself take too much time. Somehow, I suspect that jurists like Judge Bates will not be especially inclined to go out of their way to hamstring themselves (or the Executive Branch) in such cases, but will rather take full advantage of the discretion the Senate bill affords them.

Meanwhile, Vladeck rightfully challenges why Bates believes that he, alone, can speak for the entire judiciary on this matter, given that many other judges — including other FISA court judges — have supported these kinds of reforms.

Second, and more fundamentally, we return to the question I raised back in May?by what right does Judge Bates even purport to speak ?on behalf of the Judiciary?? Yes, he is the Director of the Administrative Office of the U.S. Courts (AO)?and, in that capacity, serves as Secretary to the Judicial Conference of the United States. But under federal law, it is the latter body?the Judicial Conference?and not the AO that is the official policy voice of the federal judiciary, and for good reason. Federal law not only outlines who serves on the Judicial Conference, but it also provides procedural and substantive rules to guide that body in how it conducts business, with an eye toward ensuring that it only speaks on pending policy issues of appropriate concern to federal judges.

[….]

Part of why it is so important for Judge Bates to clarify the authority with which he is purporting to speak is because we know better. As I wrote back in May, at least two of Judge Bates?s former colleagues on the FISA Court have publicly endorsed far more aggressive reforms to the FISA Court (including through a special advocate) than those provided by the Senate bill: Judge James Carr in a July 2013 op-ed in the New York Times, and Judge James Robertson in a series of speeches delivered last summer. It should follow that at least Judges Carr and Robertson?and, based on my own private conversations, far more of their colleagues?don?t share Judge Bates?s concerns about the Senate bill. They?re not alone.

It’s become clear that Judge Bates’ concerns are not those of “the judiciary” or even personal concerns about it might impact his role as a judge. Instead, it’s pretty clear that he believes in the surveillance state, and is worried that something like the USA Freedom Act might push back on the surveillance state. That’s a position that he’s entitled to have, of course, but he shouldn’t be claiming to represent the entire judiciary while pushing such an agenda.

Filed Under: civil liberties, fisa court, fisc, john bates, patrick leahy, usa freedom act

Senate Introduces Its Version Of USA Freedom Act; Greatly Improved, But Could Still Be Better

Privacy

from the a-step-in-the-right-direction dept

As was widely expected, Senator Patrick Leahy has introduced the new Senate version of the USA Freedom Act. As you recall, there was a semi-decent bill in the House that had made it pretty far, before being completely gutted by the White House. From what we’ve heard, the Senate has been negotiating with the White House pretty intensely over the past month or so, and has taken a stance that it would not give in the way the House did. The end result is a much stronger bill than what the House passed — and one that actually would block some of the NSA’s more nefarious activities. As Access notes, there is much to like about the new bill, which is almost as good as the original USA Freedom Act in the House from last fall.

That’s not to say it’s perfect. As with the original USA Freedom Act, the reforms only go so far, and it leaves much to be desired. There are also some big and dangerous loopholes that are quite problematic. As some have noted, there’s some good, bad and ugly in the bill.

However, if this bill moves forward it still would be a very big step forward and a significant effort to push back on the intelligence community’s domestic surveillance efforts. There’s still a process that it needs to go through, including getting approved by the full Senate (the rumor is it may skip the whole committee markup/approval process), and then getting reconciled with the House version (oh, yeah, and getting the President to sign it). Anywhere along the way, there may be efforts to water it down, as happened with the House bill. However, given all the negotiations that we’ve heard went into this, there’s at least some belief that something very close to what was introduced today has a real chance — and that’s a good thing. This bill also has strong bipartisan support, including support by some powerful Senators who rarely agree on much. That’s a good sign.

Even if you think — as we do — that much more needs to be done, there are reasons to support this bill as a stepping stone in the right direction and real pushback on the ability of the NSA to do mass surveillance.

Filed Under: nsa, patrick leahy, senate, surveillance, usa freedom act, white house