Jim Sensenbrenner’s Horseshit Claims of Innocence

The reaction from members of Congress to the revelation that the Section 215 surveillance was just as bad as some of us have been warning has varied, with Dianne Feinstein and Saxby Chambliss reiterating claims about the value and oversight of the program (though not having any idea, according to DiFi, whether it has prevented any attacks), and Ron Wyden and Mark Udall effectively saying “I told you so.” John Boehner dodged aggressively, suggesting even though he had approved this surveillance President Obama had to explain it.

Asked whether lawmakers should answer for an order that fell under the Patriot Act they passed, Boehner disagreed. “The tools were given to the administration, and it’s the administration’s responsibility to explain how these tools are used,” he said. ”I’ll leave it to them to explain.”

By far the most disingenuous, however, was Jim Sensenbrenner, who (as he has emphasized to the credulous journalists who served as his stenographers today) wrote the PATRIOT Act, who has remained in a senior position on House Judiciary Committee since that day, and who now claims to be shocked — shocked! — there is dragnet collection going on in the casino he built.

Predictably, he wrote a letter demanding to know how a law he has fought to retain its current form could be used to do what the law authorizes.

In the letter, Sensenbrenner de-emphasizes the role of the relevance standard to the collection.

To obtain a business records order from the court, the Patriot Act requires the government to show that: (1) it is seeking the information in certain authorized national security investigations pursuant to guidelines approved by the Attorney General; (2) if the investigative target is a U.S. person, the investigation is not based solely on activities protected by the First Amendment; and (3) the information sought is relevant to the authorized investigation.

Compare that to the letter of the law, which requires the government to show,

(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;

That is, the emphasis is not on the investigation, as Sensenbrenner’s interpretation would have it, but on the relevance of the information sought, which Sensenbrenner adds third. More importantly, Sensenbrenner omits all mention of the presumptively relevant conditions — basically something pertaining to a foreign power.

With his interpretation, Sensenbrenner has omitted something baked into Section 215, which is that so long as the government says this pertains to foreign spies or terrorists, the judge has almost no discretion on whether information is relevant to an investigation.

Then Sensenbrenner points to 2011 testimony from Acting Assistant Attorney General Todd Hinnen, who he claims said the following:

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. . . On average, we seek and obtain section 215 ordersless than 40 times per year

Which Sensenbrenner uses to claim the Department never told the Committee about this dragnet.

The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials. The recently released FISA order, however, could not have been drafted more broadly.

As it happens, Hinnen has been testifying since at least 2009 that Section 215 authorizes other secret programs. So I checked Sensenbrenner’s work. Here’s what that precise passage of Hinnen’s testimony says, without the deceitful ellipsis.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed. On average, we seek and obtain section 215 ordersless than 40 times per year. [my emphasis]

In other words, Sensenbrenner points to doctored proof he has been briefed on this secret program, but doctors it in such a way as to support his claim he never knew about this.

Not to mention that a series of DOJ Inspector General reports included classified appendices describing these secret collection operations.

Thus far, Sensenbrenner might just be disingenuous and stupid.

But it’s worse than that. You see, this collection program was officially birthed in 2006 in the aftermath of the revelation of the illegal wiretap program to incorporate parts of that program, though FBI appears to have been testing this theory earlier. Before the PATRIOT Act was renewed, the House Judiciary Committee — then chaired by a guy named Jim Sensenbrenner — was pushing language for Section 215 that was far more permissive than what the Senate Judiciary wanted. Sensenbrenner’s language, which is what passed, read,

the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.

In other words, this “relevant to” language is Sensenbrenner’s own, language he pushed for in the face of pressure from Senate Dems.

But that’s not even the last time Sensenbrenner championed this permissive language.

This issue came up again in 2009 and 2011 renewals of the PATRIOT, with Conyers and friends on HJC and Wyden and Udall consistently calling attention to this giant permissive hole in the bill. Sensenbrenner never showed the concern he has invented today.

In short, this language — the language being used to conduct dragnet collection on Americans — is Sensenbrenner’s own language. It’s only through outright deceit he can pretend differently.

But hey, given the credulous reporting of the press, it worked like a charm.

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.

27 replies
  1. cregan says:

    Bottom line; Obama will get away with it for the same reason Bush did, his core supporters are too afraid to criticize him to the degree needed for fear it will give the other side a win.

    With the notable and great exception of empty wheel and followers.

  2. lysias says:

    Wasn’t it because of Sensenbrenner’s inistence that the original 2001 PATRIOT Act included a sunset provision?

  3. HotFlash says:

    Oh my.

    “By far the most disingenuous, however, was Jim Sensenbrenner, who (as he has emphasized to the credulous journalists who served as his stenographers today) wrote the PATRIOT Act, who has remained in a senior position on House Judiciary Committee since that day, and who now claims to be shocked — shocked! — there is dragnet collection going on in the casino he built.”

    OMG. I hope and work for the day that this will not be the case, but meantime, this is fabulous prose. Hell, it may be poetry. Poetry inspires.

  4. peasantparty says:

    @HotFlash: LOL! You’ve got a way with words.

    J. Leopold gave Saxby Chamblis’s sentiments today. They were something on lines that Congress has seen no complaints. I asked J. exactly where could we lodge complaints that Chamblis might see.

    Nobody knows! :-D

  5. peasantparty says:

    I don’t have the links right now, but I do remember reading where the cell phone giants were not only listening to calls, but could listen to what is going on in your home/car. The only way to prevent it was to cut phone off and remove battery.

    If anyone else has seen this please speak up.

  6. greengiant says:

    @GulfCoastPirate: This is known. As well as all blogs, blog comments, emails, chat of all kinds, cloud data, cell phone pings, etc. It is also known that Blackwater types will drop scores of Iraqis at the sound of a gunshot.
    If any domestic assassinations, they have been veiled with lame “apparent suicides”, falls down stairs at 3 AM, cancer, and so on.
    See Tracy Lawrence and Lenders Product Services.

  7. GulfCoastPirate says:

    @greengiant: I think it was always suspected but now there is proof.

    I also think it’s a little different than we suspected in that the NSA is tapping directly into the servers owned by these companies – although apparently Google has denied that in their case.

  8. greengiant says:

    @peasantparty: This was part of the Greek cell phone switch espionage. Certain personal computers are said to be capable of doing the same for audio and video even when “turned off”.
    Key strategy, removing the battery, is probably something that is being worked on.

  9. greengiant says:

    @GulfCoastPirate: Google CEO Eric Schmidt, who has traveled to North Korea, and had a 5 hour sit down with Assange along with ex state department people, is a smoking gun.
    If google is reported using email contents, web histories etc for private purposes, passing the same onto the NSA comes for free. Facebook is reported to have accessed cell phone contact lists without permission. Data mining software and talent are probably as incestuous between intelligence and hi tech as between military hardware manufacturers and DOD.

  10. Phoenix Woman says:

    “Tex” Sensenbrenner is as big a douche as anyone out there. He’s a very rich, very “entitled” Bircher of the old school, pre-Dick-Armey “Tea Party” Astroturf makeover.

    By the way: He hates being called “Tex”. Why? It’s short for “Kotex”, where his family made its fortune. (No, he’s never had to work a day in his life.)

  11. Frank33 says:

    This hurts. The President has waged endless quagmires and he spies on everybody. He should have some Wall Street Cred. But no. That is not enough for the Old Men of the Wall Street Journal. They have to publicly chastize him for his insufficient public blood lust. I think his blood lust is more than sufficient. You lose the WSJ and impeachment is just a shot away.

    And you may notice the WSJ is in Drama Queen mode, as they worry about tieing narratives together. WSJ needs no NSL’s. They voluntarily reveal all. Actually they are an NSA affiliate.

    Yet surveillance is more critical than ever to stopping terror attacks now that Mr. Obama has all but abolished extended interrogation and military detention and invited Congress to limit drone strikes.

    Amid many real abuses of power, the political temptation will be to tie data-mining into a narrative about a government out of control. Such opportunism can only weaken our counterterror defenses and endanger the country.

  12. lefty665 says:

    @peasantparty: Cell phones are even easier than land lines to turn into bugs. The phone comes “off hook” and activates the mic. It is discreet enough to not bother you by displaying that information or ringing. Rather a nice trick really. No need for physical access, we are careful to carry the bug with us at all times, we pay the carrier for the opportunity, and we agree to the terms of service. Good sheep say Bahhhh.

    @greengiant Intel has long (pre 9/11) enabled “out of band” (OOB) operation. Prior generations required both intel CPUs and ethernet NICs. Current generations (Sandy Bridge/Ivy Bridge) have integrated many of those functions, and more, on the CPU die. All allow the machine to be operated remotely even when it is “turned off”, hence OOB.

    The features are ostensibly marketed as security measures. For example, if a laptop is stolen, an IT department can brick it remotely to prevent use, or block access to data. It can also be used as a key logger or do a number of other things that a user might not expect, like reading encrypted data. The recent “improvements” were developed by Intel’s Israeli group, perhaps some of the same thoughtful folks that designed the Narus machines NSA uses on AT&T and other switches. In addition to the IT department, Intel and NSA, there may be someone in Tel Aviv looking around in your computer when you think it’s “off”.

    With the PRISM disclosure and Microsoft’s complicity there, anyone want to bet that all of those “security updates” for Windows were for your security? It’s only a single mouse click to turn on “allow remote assistance”. What makes anyone think that’s not available all the time to someone “special”?

    Mac’s are even easier. They haven’t had the hacks so they’re far more accessible.

    Folks, we’ve all been had, and for a long time. Now that Obama and Holder have pissed off the press by rubbing their noses in the fact that they are not valued members of the club, it looks like we’ll be getting some of the stories they’ve been sitting on.

    The question is, what will people do about it? Will DiFi’s position that “It’s called protecting America” prevail and we all go back to sleep? Will recall petitions gather steam? Does anyone care, or is Facebook more important?

  13. joanneleon says:

    You go girl.

    Today, it’s like a fire hose. I don’t know who planned it but it’s brilliant.

  14. eblandra says:

    @peasantparty:

    “We don’t know a lot about how the government spies on us, but we know some things. We know the FBI has issued tens of thousands of ultra-secret National Security Letters to collect all sorts of data on people — we believe on millions of people — and has been abusing them to spy on cloud-computer users. We know it can collect a wide array of personal data from the Internet without a warrant. We also know that the FBI has been intercepting cell-phone data, all but voice content, for the past 20 years without a warrant, and can use the microphone on some powered-off cell phones as a room bug — presumably only with a warrant.” -Bruce Schneier, The Atlantic today (http://theatlantic.datinggroud.com/politics/archive/2013/06/what-we-dont-know-about-spying-on-citizens-scarier-than-what-we-know/276607/)

  15. Snoopdido says:

    DNI Clapper’s 2 statements:

    DNI Statement on Recent Unauthorized Disclosures of Classified Information – http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/868-dni-statement-on-recent-unauthorized-disclosures-of-classified-information

    Here’s one part:

    “The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism -related communications. Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions.”

    Broad in scope is Clapper’s justification for collecting ALL of the communication records (phone and internet) of ALL Americans in total violation of the Constitution’s 4th Amendment.

    The Executive branch, Congress, and the Courts are ALL complicit in this total violation of the Constitution’s 4th Amendment. The American people? Not so much.

    DNI Statement on Activities Authorized Under Section 702 of FISA – http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/869-dni-statement-on-activities-authorized-under-section-702-of-fisa

    This one uses a raft of weasel words to con us into believing there is nothing here to see.

    For example:

    “Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.”

    Note the word “intentionally”. This appearance of only targeting “non-U.S. persons located outside the United States” immediately falls apart with the next section:

    “Activities authorized by Section 702 are subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress. They involve extensive procedures, specifically approved by the court, to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.”

    Note the use of the word “minimize”. They don’t say “eliminate”. Instead the US merely minimizes “the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.”

    My interpretation of minimizing is likely quite different than the US government’s.

  16. What Constitution? says:

    Apparently Jack Nicholson is on location somewhere, but I’m sure they’ll have him lined up by tomorrow — to appear in front of a microphone and by Obama’s side to explain to America that “you can’t handle the truth”. That’s pretty much the only reason all this newly-disclosed stuff wasn’t disclosed before even though, as we’re all being told, it’s all perfectly legal and people shouldn’t be concerned about anything but the fact it’s now being disclosed….

  17. Hmmm says:

    On the PRISM PPT details vs. the tech giants’ denials, a couple thoughts (not too redundant, I hope):

    (1) From a number of specifics (optical cables reference, total dependence on ISP participation, etc.) it sounds like the PRISM program could be about taking splits off the optical lines that connect the company servers to the Internet (rather than the NSA accessing user accounts/data on the servers via backdoors) and shipping each split off to the NSA for hoovering for later analysis. If so, then maybe the splits are on ISP premises rather than tech giant premises, in which case the tech giants might truly have no idea it’s going on. So the tech giants might be telling the truth about knowing nothing, and the program might still be in place nonetheless.

    (2) Apple saying they’ve never heard of PRISM would be true if FBI or NSA (unlear which it would have been) used a different name when discussing the program with Apple. (In fact it would seem smart tradecraft to change the code name for each company, to localize the source of any leaks.) So not knowing about PRISM is not necessarily the same as not knowing about the program the PPT describes.

    (3) I actually have a nagging worry that the senior IC source for the PRISM PPT might have baited Glennzilla with an irresistible but totally bogus story, in order to trigger a leak prosecution, ala Fox/AP, to take him off the field of play — more whistleblower persecution.

    Time will tell.

  18. nomolos says:

    The time has come to beat the buggers with bullshit. Any time one sends an email or makes a phone call it is imperative to include some of the “magic” words/phrases such as bomb, terrorist, jihad, muslim, Israel, revolution, corporate empire, government corruption, etc. The data mining system must be overloaded with crap,

    Really is it any surprise that the corporate owned government would want to know every piece of information that may, even remotely, threaten their supreme power.

  19. tbob says:

    @peasantparty: tbob
    Since they’re so interested in your telephone information, maybe a direct call to NSA Public and Media Affairs Center, (301) 688-6524, might be a good place to start. Just tell them you’re not interested in their service and politely ask to be removed from their wiretap list. Think they may start getting the message after a couple hundred million requests?

  20. grayslady says:

    @Hmmm: I think it’s more realistic to believe that the corporate denials are incorrect. Notice the weasel words used, such as “no direct access”–key word is “direct”, in which case your splitter assumption is probably a good one. Also, all the denials have come from flunkies with fancy titles, not from the CEOs. Finally, Clapper has admitted the existence of PRISM, whining that its exposure hurts U.S. “national security interests”. It’s for real.

  21. orionATL says:

    I think what is becoming clearer thru guardian articles is that:

    – this order was not a routine renewal of the/a single blanket order, as senator feinstein lied to us yesterday. This order was targeted to verizon business-customer lines. One implication is that there could be many more targeted orders (or that targeted orders can be obtained at will).

    – the entire senate had not been informed of this program, as senatorchambliss lied to us yesterday, but was known only to a few senators and was not supported by all senators.

    – these orders do NOT have to pertain strictly to terrorism and may pertain to any unlawful activity the fbi/nsa/dod/cia/nsc want them to pertain to, e.g., money-laundering, nuclear weapons sales, gun-running, black market and piracy, child porn, political protest (“occupy”), political activities.

    P.s.

    I wonder how many phone/email messages exchanged between banksters have been collected and could be re-examined.

    I wonder who is NOT susceptible to electronic spying. Does the white house have encrypted or other protection? The fbi? The doj? Dod?

    What a perfect set of social systems supporting tyranny our “protectors” have put into place since 2006.

  22. P J Evans says:

    It’s fun reading comments online where people are talking about how they have landline phones, not cell, so they’re not affected. Yeah, right.

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