The Changes Wyden/Udall Wanted to Section 215

As I’ve been reporting, Ron Wyden and Mark Udall unsuccessfully tried to get the Senate to require the government to reveal how it interprets the PATRIOT Act. And since both have made it clear that Section 215 is one of the concerns, I wanted to look at the amendment they’ve proposed to fix Section 215. They proposed to replace this language:

(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to— 

(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
With this:

(2) shall include–

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

(ii)(I) pertain to a foreign power or an agent of a foreign power;

(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.”.

This actually has become a perennial suggested change, one the Administration has been rejecting, in general, since 2009.

What the existing law does, through magic of grammatical obfuscation, is eliminate the requirement that Section 215 have anything to do with an actual investigation of suspected terrorists (or alleged spies like Julian Assange). It’s just easier (“presumptively relevant”) to use Section 215 with such people.

But all of that means the government can use Section 215 to get tangible things to protect against international terrorism. The government might only have to argue that it needs a database of everyone’s cell phone geolocation so when they look for terrorists or WikiLeaks supporters, they’ve got that all on file already.

Wyden and Udall are trying to swap out that language to require that the information both be relevant to an investigation and be tied to some suspected terrorist (or Julian Assange). The magic of “and.”

But of course that would make Section 215 useless for bulk collection, which is why this Amendment, after some fear-mongering, always gets defeated.

Because the United States of America, under the guise of fighting terrorists, has to consistently lie to its citizens so it can create massive databases on completely innocent people available for any searches the government might want to do, whether those searches have to do with terrorism or not.

And they call all this lying? The PATRIOT Act.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. mzchief says:

    My vote is for complete expiration of the odious “PATRIOT” Act. To heck with Trailblazer and the bloated, waddling DoD contractor’s nag it rode in on.

  2. MadDog says:

    Really appreciate all of your continued digging on this EW, as well as the continued focus!

    And Spencer’s too!

    Squeezing out the tantalizing tidbits like the use of “and”, the use of secret law, and secret interpretations of the law.

    We know full well that Harry Reid’s mad rush to pass this 4 year extension without any debate must be fueled by something!

    There isn’t any weight behind his argument that the lapse of these 3 expiring Patriot Act provisions “…would increase the risk of a retaliatory terrorist strike against the homeland and hamper our ability to deal a truly fatal blow to al-Qaida…”

    We know this because existing non-expiring Patriot Act provisions allow for the continuation of existing “…foreign intelligence investigations…”

    Why then does Harry Reid allow no debate nor amendment? It is troubling because according to the AP’s piece there apparently has been little or no usage by the government of the 3 expiring Patriot Act provisions:

    …Todd Hinnen, acting assistant attorney general for the Justice Department’s national security division, said at a congressional hearing in March that the government seeks warrants for business records fewer than 40 times a year and that between 2001 and 2010, it sought roving wiretap authority in about 20 cases a year. He said the government has yet to use its lone wolf authority.

    Makes one wonder just what can be the fierce urgency in passage with neither debate nor amendment.

    Something is fueling this fire!

    Something secret!

    Something urgent!

    • harpie says:

      Well said!
      [This is what it brought to my mind]:

      Something’s fuelin’ this fire!
      Something secret! Something dire!

      “We better stop, hey, what’s that sound
      Everybody look what’s going down
      Stop, hey, what’s that sound
      Everybody look what’s going down
      Stop, now, what’s that sound
      Everybody look what’s going down
      Stop, children, what’s that sound
      Everybody look what’s going down”

  3. nextstopchicago says:

    Way off topic, but I thought I’d come here to share. In the wake of the amazing news of Ratko Mladic’s arrest, I revisited a couple of the articles that I had found really powerful at the time of the Balkan wars – “the Madness of General Mladic” and “Endgame in Kosovo” in the New York Review of Books.

    What I hadn’t expected to find was this horrifying gem, in a letter to the editor referencing the first article, by New York Times reporter David Binder:
    >Allow me to say also that, having spent much more time around Mladic and his colleagues than Mr. Block, I strongly wish to disassociate myself from his assessment of the general as a crazed killer. Until compelling evidence to the contrary surfaces, I will continue to view Mladic as a superb professional, an opinion voiced by senior American, British, French and Canadian military officers who have met him or followed his career and who are better qualified to judge him than either Block or I.

    Good god. For all the inaccurate reporting we’ve seen in the days since, this one is jaw-dropping. Here’s a description of Mladic’s work:

    > In Brcko, for example, which commands the critical and vulnerable “Posavina Corridor” linking the two wings of Bosnian Serb territory, Serb troops herded perhaps three thousand Bosnians into an abandoned warehouse, tortured them, and put them to death. At least some US intelligence officials must have strong memories of Brcko:

    >They have photographs of trucks going into Brcko with bodies standing upright, and pictures of trucks coming out of Brcko carrying bodies lying horizontally, stacked like cordwood…. [5]

    I wonder if Binder remembers writing that, and what he’s thinking today. Of course, he’s probably had a long time to recognize his error.

  4. harpie says:

    From Ackerman’s article:

    “I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

    …sounds like the Cheney/Addington-Yoo/Bybee gang.

    • spanishinquisition says:

      “sounds like the Cheney/Addington-Yoo/Bybee gang”

      Yeah, it’s hard to tell Obama from them. We’ve got Mr. Transparent doing all he can to be secretive.

  5. Sinestar says:

    Truly 1984. There has never been a more Orwellian law than this passed EVER! Fuck the PATRIOT Act! I’d rather die in a terrorist bombing than be subjected to this fucking bullshit!

  6. jo6pac says:

    create massive databases on completely innocent people available for any searches the government might want to do.

    This law was never about catching bad guys, only about watching the citizens of this nation. How sad that we have become like Germany before it fell under the spell of Fascism.

    • Sinestar says:

      Umm, I think our politicians at least, if not most of the power brokers and elitists are already under that spell. Were just sitting around waiting for Hindenburg to pass on…

  7. rmwarnick says:

    The cloture vote on the USA PATRIOT Act was 74-8. And progressives have been reduced to hoping Senator Rand Paul can do something. The Democrats have abandoned us.

    • MrChip says:

      The left us a long time ago, every day I pray people will really wake up to this fact. As long as we keep pretending there are 2 truly distinct parties we are doomed but every day, I hear it framed the same way over and over…

      sucks

  8. Sinestar says:

    Gimme an ‘F’, gimme an ‘A’, gimme an ‘S’, gimme a ‘C’, k gimme an ‘I’, and gimme another ‘S’, and now a ‘T’, but wait there’s more!
    Gimme, oh what the hell, you know where I’m going: FASCIST CORPORATISM

  9. Bustednuckles says:

    I saw this at WIRED.com via FARK.
    Have I told you I love you lately?
    You hit paydirt with this one Marcy.
    Wyden is a good guy.
    I moved out of Oregon twenty years ago but just across a big river so Oregon politics are still right there.
    I have been watching him for a looong time.
    This nefarious crap needs a lot more daylight.

    Thanks for heading out to the weed patch yet again.

    • Gitcheegumee says:

      Speaking of weedpatches, I am henceforth going to refer to my high powered weedeater as “Marcy”—hey,BB King has “Lucille”,right??

      (After she finishes chewin’ em up and spittin’ em out-they (PTB)will be singing the blues,I tell ya.)

      Great work,Ms. Wheeler.

  10. PeasantParty says:

    shaking head

    I’m still flabbergasted as to how they expect Americans to abide by laws that are a secret to them!

    Marcy,

    How do these changes/additions work with those secretive National Security Letters that certain individuals have rec’d?

    • Sinestar says:

      That’s just the point, they don’t. They want the authority to round anyone who may oppose or dissent on the most vaguely stated grounds as is possible under the pseudo-constitutional and malleable precepts they can muster. ‘Intelligence Collection Centers’ (quoted from wired article) sounds frighteningly like the Gestapo/SS incarnate.

      The half-million or so bullet-ridden artillery shattered allied soldiers’ bodies that gave their lives to defeat this non-sense must be rolling over in their unmarked graves.

      • PeasantParty says:

        Heh!

        My 86 year old uncle that is a WWII veteran went berzerk when the Bush Ad did this. He said he spent his entire military career fighting this and the Hitler regime.

      • Gitcheegumee says:

        “When fascism comes to America, it will be wrapped in the flag and carrying the cross.” – Sinclair Lewis

  11. Starbuck says:

    Around these parts (Portland OR) Wyden is has been characterized (R NY) as his relationship to Oregon is tenuous at best.

    Carry on (or is it carrion?)

  12. wendydavis says:

    Did Obama and David Cameron discuss Total Information Awareness (especially the more terrifying British version) while they spoke of saving the world for democracy and freedom?

    Stay tuned.

  13. tjbs says:

    Sure they’re sitting on this info for the future.

    I’ll bet they are actively using the information to bankrupt dissenters with-out any overt action, nice for the Nazi types in government.

    total awareness = total control

    • Bustednuckles says:

      Who says they have no sense of humor around here?
      I saw that and beer came out of my nose because I remember watching her say that on television.
      I was so proud of her!

      Marcy Wheeler for AG!