USA Freedumber Will Not Get Better in the “Prosecutors” Committee

Having been badly outmaneuvered on USA Freedumber — what was sold as reform but is in my opinion an expansion of spying in several ways — in the House, civil liberties groups are promising a real fight in the Senate.

“This is going to be the fight of the summer,” vowed Gabe Rottman, legislative counsel with the American Civil Liberties Union.

If advocates are able to change the House bill’s language to prohibit NSA agents from collecting large quantities of data, “then that’s a win,” he added.

“The bill still is not ideal even with those changes, but that would be an improvement,” Rottman said.

[snip]

“We were of course very disappointed at the weakening of the bill,” said Robyn Greene, policy counsel at the New America Foundation’s Open Technology Institute. “Right now we really are turning our attention to the Senate to make sure that doesn’t happen again.”

[snip]

One factor working in the reformers’ favor is the strong support of Senate Judiciary Chairman Patrick Leahy (D-Vt.).

Unlike House Judiciary Chairman Bob Goodlatte (R-Va.), who only came to support the bill after negotiations to produce a manager’s amendment, Leahy was the lead Senate sponsor of the USA Freedom Act.

The fact that Leahy controls the committee gavel means he should be able to guide the bill through when it comes up for discussion next month, advocates said.

“The fact that he is the chairman and it’s his bill and this is an issue that he has been passionate about for many years” is comforting, Greene said.

I hope they prove me wrong. But claims this will get better in the Senate seem to ignore the recent history of the Senate Judiciary Committee’s involvement in surveillance bills, not to mention the likely vote counts.

It is true Pat Leahy wants real reform. And he has a few allies on SJC. But in recent years, every surveillance-related bill that came through SJC has been watered down when Dianne Feinstein offered an alternative (which Leahy sometimes adopted as a manager’s amendment, perhaps realizing he didn’t have the votes). After DiFi offered reform, Sheldon Whitehouse (who a number of less sophisticated SJC members look to as a guide on these issues) enthusiastically embraced it, and everyone fell into line. Often, a Republican comes in and offers a “bipartisan reform” (meaning conservative Republicans joining with the Deep State) that further guts the bill.

This is how the Administration (shacking up with Jeff Sessions) defeated an effort to rein in Section 215 and Pen Registers in 2009.

This is how DiFi defeated an effort to close the backdoor loophole in 2012.

As this was happening in 2009, Russ Feingold called out SJC for acting as if it were the “Prosecutors Committee,” rather than the Judiciary Committee.

(Note, in both of those cases as well as on the original passage of Section 702, I understood fairly clearly what the efforts to stymie reform would do, up to 4 years before those programs were publicly revealed; I’ve got a pretty good record on this front!)

And if you don’t believe this is going to happen again, tell me why this whip count is wrong:

Screen shot 2014-05-26 at 5.18.49 PM

If my read here is right, the best case scenario — short of convincing Sheldon Whitehouse some of what the government wants to do is unconstitutional, which John Bates has already ruled that it is — is relying on people like Ted Cruz (whose posturing on civil liberties is often no more than that) and Jeff Flake (who was great on these issues in the House but has been silent and absent throughout this entire debate). And that’s all to reach a 9-9 tie in SJC.

Which shouldn’t be surprising. Had Leahy had the votes to move USA Freedom Act through SJC, he would have done so in October.

That was the entire point of starting in the House: because there was such a large number of people (albeit, for the  most part without gavels) supporting real reform in the House. But because reformers (starting with John Conyers and Jerry Nadler) uncritically accepted a bad compromise and then let it be gutted, that leverage was squandered.

Right now, we’re looking at a bill that outsources an expanded phone dragnet to the telecoms (with some advantages and some drawbacks), but along the way resets other programs to what they were before the FISC reined them in from 2009 to 2011. That’s the starting point. With a vote count that leaves us susceptible to further corruption of the bill along the way.

Edward Snowden risked his freedom to try to rein in the dragnet, and instead, as of right now it looks like Congress will expand it.

Update: I’ve moved Richard Blumenthal into the “pro reform” category based on this statement after the passage of USA Freedumber. Thanks to Katherine Hawkins for alerting me to the statement.

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. orionATL says:

    the way to the dem senate’s heart is emphatically NOT thru negotiation with milindcmplx; it is only thru attacks on obama’s favoribility rating. there are no arguments or compromises that can be made that will be convincing to the senate’s corporate military/israeli lobby.

    any “fighting” (remember, misscivilrights&liberties is a lady, not a political street walker) in the senate by aclu, for example, will be a colossal waste of my financial contributions.

    the citizenry are modestly mistrustful of the president right now, with very good reason.

    the campaign to justify that distrust with solid information about fake reform and fake transparency and fake civil liberties protections, and then to amplify it, should start today. by september a democratic senate will be many prayers and candles away from reality.

    “oh no, orion, not that. don’t you understand?”

    “crazy republicans are always and forever more dangerous than g-men congressionally empowered with the ability to engage in almost unlimited domestic electronic spying”

  2. Ben Franklin says:

    OT again, Marcy. What do you make of the WH including the Afghanistan Station chiefs name on a press release? I know incompetence is rife, but this sounds like a deliberate act.

  3. wallace says:

    quote”Edward Snowden risked his freedom to try to rein in the dragnet, and instead, as of right now it looks like Congress will expand it.”unquote

    This is exactly what “damage control” experts do. Take a liability,( ie..Snowden’s revelations) and turn them into an opportunity to make them assets. As the DCOTP aren’t paying attention anyway, why not? The opposition just provides an “authentic” narrative. In reality land, the PTB will NEVER relinquish what they’ve managed to build since the Church hearings. Regardless of “civil liberties”. Even if the Legislative branch enacts restraints, it appears under the War Powers Act, the Executive can overide these restraints at will, based on whatever the POTUS defines as “imminent threat”.

    In that respect, considering a Federal court just ruled that the US Stazi can LEGALLY kick in your door and CONFISCATE WEAPONS now..with NO warrant or charges, I submit one of the most important rights enumerated by the Framers…is now NULL AND VOID. Who needs General Warrants when they can simply kick the door into your home, confiscate the very item that is the object of that right guaranteed in the 2nd Amendment, arrest you and haul you away? Shades of King George lll.

    http://www.policestateusa.com/2014/sutterfield-vs-milwaukee/

    This is why, especially on this Memorial Day, commemorating those who gave their lives fighting to preserve these rights, brings to mind some lessons of the Twentieth Century. Lessons it would be wise to remember, in light of this ruling.

    In regards to my previous post ..ie.. new Federal judicial coup d’etat diktat declaring it is legal for the US Stazi to kick in your door and CONFISCATE YOUR WEAPONS…

    http://www.policestateusa.com/2014/sutterfield-vs-milwaukee/

    ….remember this. They can’t force you to get in a boxcar if you have a gun.
    quote”
    What I Have Learned From the Twentieth Century

    With thanks to Schoolmasters Joseph Stalin, Adolf Hitler, Benito Mussolini, Mao Tse-Tung and Pol Pot

    LESSON NO. 1: If a bureaucrat, or a soldier sent by a bureaucrat, comes to knock down your door and take you someplace you do not want to go because of who you are or what you think — kill him. If you can, kill the politician who sent him. You will likely die anyway, and you will be saving someone else the same fate. For it is a universal truth that the intended victims always far outnumber the tyrant’s executioners. Any nation which practices this lesson will quickly run out of executioners and tyrants, or they will run out of it.

    LESSON NO. 2: If a bureaucrat, or a soldier sent by a bureaucrat, comes to knock down your door and confiscate your firearms — kill him. The disarmament of law-abiding citizens is the required precursor to genocide.

    LESSON NO. 3: If a bureaucrat tells you that he must know if you have a firearm so he can put your name on a list for the common good, or wants to issue you an identity card so that you be more easily identified — tell him to go to hell. Registration of people and firearms is the required precursor to the tyranny which permits genocide. Bureaucrats cannot send soldiers to doors that are not on their list.

    LESSON NO. 4: Believe actions, not words. Tyrants are consummate liars. Just because a tyrant is “democratically elected” does not mean he believes in democracy. Reference Adolf Hitler, 1932.

    LESSON NO. 5: Our constitutional republic as crafted by the Founders is the worst form of government in the world, except when compared to all the others. Capitalism, as well, is a terrible way to run an economy, except when compared to all other economic systems. Unrestrained democracy is best expressed as three wolves and a sheep sitting down to vote on what to have for dinner. The horrors of collectivism in all its forms — socialism, communism, national socialism, fascism — have been demonstrated beyond dispute by considerable wasteful trial and bloody error.

    LESSON NO. 6: While nations do not always get the leaders they deserve, they always get the leaders they tolerate. And anyone who tells you that “It Can’t Happen Here” is whistling past the graveyard of history. There is no “house rule” that bars tyranny coming to America. History is replete with republics whose people grew complacent and descended into imperial butchery and chaos. Dictators count on the assistance of people who are complacent, fearful, envious, lazy and corrupt. While there is no “Collective guilt” to the crimes of a regime (all such crimes being committed by specific criminal individuals), there is certainly “collective responsibility” — especially for those who watch the criminals at work without objecting or interfering. (snip)”unquote

    http://sipseystreetirregulars.blogspot.com/2014/05/dont-get-in-boxcar-round-up-reprint-15.html

    In light of the continuing “we are the enemy” on the USA “battleground”, and Bush’s approval of FEMA camps… AND the NDAA.. I suggest you pay attention. Notwithstanding this…. http://3.bp.blogspot.com/-PfnSW5PEJyE/UF7ilMGCbKI/AAAAAAAAP2A/YC7lOZnHUQY/s400/Holocaust2soldiershootingmother.jpg

    For those of you who would suggest I’m wearing a tinfoil hat, consider my previous words warning of possible future gun confiscation. I suggest a little garlic with your words.

    • bmaz says:

      If you think one of the biggest concerns facing this country is that “they’re coming to take our guns”, you are way beyond tin foil pal.

      • wallace says:

        quote” If you think one of the biggest concerns facing this country is that “they’re coming to take our guns”, you are way beyond tin foil pal.”unquote

        That’s astonishing, ..considering you are a practicing attorney, and a Federal court declared it’s legal to kick in doors and confiscate weapons. That tells me something, notwithstanding your opinion of tin foil. Indeed. Your clients just might reconsider their decision if they knew.

      • bmaz says:

        Yeah, because of security, it happens every now and then. Apologies, and you are freed up now.

        • orionATL says:

          bmaz,

          commenters like wallace are disrupters. their harangues take up physical space, especially in this new format, and bury any train of back-and-forth comment this site used to have.

          they also take up psychological space here. think of the first-rate commenters who have dissappeared since these gun-talking nut cases started showing up here sometime in the last six months.

          y’all need to stop this permissive approach to these destructive commenters.

          theirs is classic troll behavior – commentary that is ideologically extreme, monomaniacle, unusually hostile in tone, and disruptive of any focused chain of comments others might like to make.

          may i suggest a permanently open thread, maybe labeled “nutso musings”, in which commenters like wallace are routinely dumped (and maybe orion on occassion :) ). this “nutso musings” column could be listed in each day’s list of postings titles so these special commenters’ work would not be buried or censured.

          • wallace says:

            quote”y’all need to stop this permissive approach to these destructive commenters.”unquote

            Indeed. Says one who routinely argues for keeping the 1st amendment at bay here.

            quote” …theirs is classic troll behavior – commentary that is ideologically extreme, monomaniacle, unusually hostile in tone, and disruptive of any focused chain of comments others might like to make.”unquote

            Vs one who calls for the censorship of their fellow citizens because of his own “focused chain” of objections to the 2nd Amendment as..”ideologically extreme, monomaniacle, unusually hostile in tone, and disruptive”.

            Notwithstanding looking like an idiot, you are your own worst enemy pal.

            PJEvans said:
            quote..”I think you need help.”unquote

            Coming from a perspective of your addiction to Synthetic Lobotomy Serum, I’d suggest taking your own advice. And btw…fuck off.

            • orionATL says:

              your own words, wallace, depict you most accurately – a fool whose brain is telling him that the great danger he should publicly address here is that the government is trying to take his guns away from him.

              not the danger that there is pervasive government spying, nor that there is endemic government lying, nor that we have a weak legislature and an unbalanced rightwing judiciary,

              no, wallace wants us to know that the gubmint commin’ for our guns!

              gonna’ pry them right out of our cold, deadhands!

        • P J Evans says:

          I can log in, but it takes longer and I’m likely to have the train of thought derail.

    • Bitter Angry Drunk says:

      Obama –and the next president — command an army of killer robots. They give fuck-all about your guns. You aren’t a threat to them. Just stop it.

  4. anonymous says:

    I’d like to see the civil liberties community supporting an active boycott of American internet, telecom and IT companies. When the NSA is holding a loaded gun in the face of every human on the planet, it’s time for that kind of response at a minimum. Assume legislative reform = fail and start operating realistic campaigns of active resistance. Hold a gun to the Senate’s face and demand the repeal of USA PATRIOT and FAA. And then let mass encryption and foreign publics fire the bullets.

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