Ron Wyden to Dianne Feinstein: Pants on Fire

While the language about the FISA Amendments Act that Ron Wyden just got James Clapper to clear for release (first reported by Spencer Ackerman) doesn’t exactly call Dianne Feinstein a liar, it comes close.

Wyden got the following three statements cleared:

  • A recent unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.
  • It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
  • I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion, the FISA Court has reached this same conclusion. [my emphasis]

The unclassified report in question is the Senate Intelligence Committee’s report from the FISA Amendments Act extension mark-up.

Third, the numerous reporting requirements outlined above provide the Committee with extensive visibility into the application of these minimization procedures and enable the Committee to evaluate the extent to which these procedures are effective in protecting the privacy and civil liberties of U.S. persons. Notably, the FISA Court, which receives many of the same reports available to the Committee, has repeatedly held that collection carried out pursuant to the Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment. [my emphasis]

The passage in question comes from DiFi’s additional views.

With this declassified language, Wyden is making clear how incomplete DiFi’s claims about the law are.

But don’t worry, James Clapper’s office says. They’ve rectified the problems. Of NSA violating minimization requirements, that is, not of the Senate Intelligence Committee Chair making grossly misleading comments to push for passage of the extension.

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.

13 replies
  1. MadDog says:

    DiFi is still playing sleight-of-hand with her red herring about “targeting” Americans as opposed to the seemingly “incidental” collection of US persons information, and she probably full well knows and is unconcerned with the results because to her more is always better than less and 4th Amendment be damned.

    If we have nothing to hide then we have nothing to worry about.

  2. David says:

    What’s your (anybody) take on Wyden? He comes off as a senator actually acting like a person/as a senator should, vs. the usual noise/posturing/obvious self-interest. Is that his game or who he is? Seems a little too slick

  3. MadDog says:

    @David: IMO he seems to be for real and more honest and progressive than the average Democratic Senator, but I can’t say that he’s in the running for the Top Ten Democratic Senators Ever.

    For example, I don’t think he is as courageous and steadfast as Ted Kennedy was, or as adamantly principled as Paul Wellstone was.

    Where, for example, is the Wyden non-stop filibuster with regard to the various FISA extensions over the years? It’s one thing to publicly object to some of the onerous FISA components that circumvent the 4th Amendment, and it’s another thing to effectively and successfully block their passage. Wyden gets a Pass on the former and an Incomplete on the latter.

  4. Peterr says:

    Spemcer certainly didn’t bury the lede:

    The head of the U.S. government’s vast spying apparatus has conceded that recent surveillance efforts on at least one occasion violated the Constitutional prohibitions on unlawful search and seizure.

    And I’d say that it *does* call DiFi a liar, though not in such clear language. Certainly not in such clear language that it would prevent her from being admitted to the finer parties in SF.

  5. emptywheel says:

    @David: Ditto what MD said. But as with Feingold before him, occasionally that means he does something that seems nutty, like endorsing some form of Paul Ryan’s Medicare scheme.

    But I prefer that to what we normally get.

  6. rosalind says:

    @MadDog: i only made it in a few paragraphs, his “it’s not torture ’cause i have this piece of paper saying so” made me sick to my stomach.

  7. MadDog says:

    @rosalind: I sympathize with your aversion. I’ll throw out just this one part that you missed and a few comments:

    “…In your answer, you seem to be confirming that the best information, for example, from Abu Zubaydah, came through traditional interrogation before the—

    That’s not true. And let me go in detail, because Ali Soufan has made this claim, and he just does not know, because he was not there. There were two pieces of significant information that Abu Zubaydah provided in late April / May of 2002, before we started the enhanced interrogation program.

    Before—

    Before. And I make that point in my book very clearly. Those are the two pieces of information that came out, basically that K.S.M.’s nickname was Mukhtar. And we had independent information on Mukhtar, so it was very useful to know that Mukhtar and K.S.M. were the same person. That was it.

    Through traditional interrogation.

    Through traditional interrogation…”

    1) Rodriguez always puts former FBI agent Ali Soufan down with the dismissal that “he wasn’t there”. Well, guess what? Neither was fookin’ Jose Rodriguez! Rodriguez doesn’t seem to have the self-awareness that the put-down he uses against Soufan applies just as equally to himself.

    In other words, Rodriguez is dismissing his very own opinion because simply “he wasn’t there”. He never seems to catch on to this.

    2) In this brief back-and-forth with Amy Davidson, Rodriguez exclaims that it wasn’t true that “traditional interrogation” got good information and only seconds later claims that it did. Again, there is no self-awareness on his part that he has just contradicted himself in the space of a sentence. None whatsoever!

    As any viewer of cop and crime shows on TV would recognize, Rodriguez comes across as just what he is; a fookin’ criminal.

    And that seems logical when you consider that when anyone, including the US government, wants to commit a crime, who else would you get than a criminal?

  8. EH says:

    It’s tough to pick the best snippet, but at this point “the inadvertent burning of the Koran” is leading for me.

  9. shekissesfrogs says:

    At least once “minimization procedures used by the government was unreasonable under the Fourth Amendment”, but even though the door has been swung wide open for every local, state or Fed agency too..the NSA isn’t referring to violations by anyone but themselves, right?

    “Earlier this week, The New York Times disclosed that “cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.”

    “Sprint Nextel, “provided law enforcement agencies with its customers’ (GPS) location information over 8 million times between September 2008 and October 2009. ”

    “Sprint disclosed that it received approximately 500,000 subpoenas in 2011 (a subpoena is a written request for information from law enforcement that isn’t reviewed by a judge) and that ‘each subpoena typically requested subscriber information on multiple subscribers.'”
    link

  10. greengiant says:

    @David: The best senator from New York that Oregon has. If both Dems and Elephants are bought, then watch closely at the bipartisan efforts that involve people like Wyden.

  11. ondelette says:

    It really doesn’t matter anymore. Collection is nearly complete, regardless of minimization and may, in fact be complete except for a small number of landlines. It was quite obvious that the TIA program when it was “killed” became a necklace of about 59 startup companies with interlocking boards of directors, continued to work on the project with private and foreign government funding, and re-emerged in Singapore as the IRAHS program in 2005-6 fully completed and waiting to be deployed when the opportunity arose.

    It was quite obvious during the FAA negotiations that the FISC had approved a version of collection without looking for data, whether that was data that was headed out of the country or data that was within country, doesn’t make a difference except to the statute. All the data can be collected at points where it heads out of the country, and that will fit the letter of the law about “reasonably expected to” be communicating with non-US persons outside the United States. That will collect anything that is going over IP protocol at all.

    Anything that is going through cellular communications can obviously be had through the cellular companies, since the most valuable data is not protected by CALEA anymore, and since the companies all install Carrier IQ, and all capture and save triangulation data from their towers.

    This was the whole reason Michael Hayden wrote the first draft of the Patriot Act in the first place. It should come as a surprise to no one in Congress.

    As for the corporations gathering data, they began their plans to do so in the 1990s, and were in full swing with them by 1998. They had their methods built into devices, software, and international standards by then, and the exquisite permission of the legal community, which believed and continues to believe that civil rights and privacy are only infringed by the government, not by private enterprise. The notion that data collected by private enterprise might become useful to, an acquired by the government, or that people spend so much time in their workplace that corporations become in loco ordinatio, never occurred to the legal community somehow.

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