On PATRIOTs and JUSTICE: Feingold Aims for Justice

Over the last two days, I described what Patrick Leahy’s bill renewing the PATRIOT Act does and noted Russ Feingold’s complaints that, thus far, the debate on PATRIOT is happening without we citizens knowing how PATRIOT (and FISA) have been used. Today, I wanted to talk about how I think Leahy’s PATRIOT renewal (and a bill to reverse retroactive immunity) appears to be an attempt to forestall Feingold’s efforts to roll back those unrevealed uses of PATRIOT and FISA.

Before I get into what is in Feingold’s JUSTICE bill, first understand the timing. Feingold introduced his bill before Leahy (with Ed Kaufman, the Vice President’s stand-in, co-sponsoring) introduced PATRIOT renewal. Leahy explicitly integrated select aspects of Feingold’s bill into the PATRIOT renewal. And tomorrow, the Senate Judiciary Committee will mark up the PATRIOT renewal.  Since Feingold’s JUSTICE is premised on improving FISA while renewing PATRIOT, Feingold’s measures that don’t get included in tomorrow’s markup will be much more difficult to pass.

As a reminder, here was my summary of Leahy’s bill:

So to summarize, the Leahy bill (which is co-sponsored by Ben Cardin, Ed Kaufman, and Bernie Sanders) would do the following:

  • Extend the roving wiretap, Section 215 (tangible things), and “lone wolf” provisions of the PATRIOT Act to 2013
  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism
  • Gives recipients of NSLs and Section 215 orders greater means to appeal the gag order associated with it

In his testimony at least week’s hearing, Leahy had the following to say about Feingold’s bill:

I have consulted with Senators Feingold and Durbin, who introduced a more expansive bill last week, and, with their encouragement, borrowed a few accountability provisions from their proposal.

[snip]

Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities — such as wiretaps, physical searches, and pen register and trap and trace devices — that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin. If we are to allow personal information to be collected in secret, the court must be more involved in making sure the authorities are used responsibly and that Americans’ information and personal privacy are protected.

That is, in a bid to pitch his bill as a “balance” between what Feingold and Durbin advocate and what DiFi (as Chair of SSCI) and the Republicans want, Leahy pointedly integrated aspects of Feingold’s bill into his own.

This is a superb discussion of the two bills. It describes these things that JUSTICE does that Leahy’s bill does not:

  • Adds a “least intrusive means” to Section 215 orders
  • Sharply curtails the kinds of records available through National Security Letters
  • Limits the use of “sneak and peak” powers
  • Restricts “material support” charges for terrorism to those who knowingly do so
  • Prohibits bulk collection of data under FISA
  • Prohibits reverse targeting under FISA
  • Repeals retroactive immunity for telecoms that helped Bush break the law with warrantless wiretapping

Now, as I pointed out the other day, Leahy and Feingold (and Dodd and Merkeley) introduced a stand-alone bill repealing retroactive immunity, which leaves these other six bullets as the main aspects of JUSTICE that Leahy, the Chair of SJC, has not explicitly included in his “balanced” approach to reauthorizing PATRIOT.

Now, I’m going to do some more work on these two efforts. But in the meantime, please call the following members of SJC to encourage them to support integrating measures from Feingold’s JUSTICE in tomorrow’s mark-up. (Dick Durbin is cosponsor of Feingold’s JUSTICE bill, so he’s not on this list.)

Patrick Leahy: (202) 224-4242
Herb Kohl: (202) 224-5653
Dianne Feinstein: (202) 224-3841
Chuck Schumer: (202) 224-6542
Ben Cardin: (202) 224-4524
Sheldon Whitehouse: (202) 224-2921
Amy Klobuchar: (202) 224-3244
Ted Kaufman: (202) 224-5042
Arlen Specter: (202) 224-4254
Al Franken: (202) 224-5641

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.

7 replies
  1. readerOfTeaLeaves says:

    OT, but showing up on front page of Financial Times: News of charges against BAE, plus High Court to review BAE-Saudi deals. One of the articles:

    Corruption investigators were on Wednesday poised to press criminal charges over BAE Systems’ arms deals as the long-running probe into one of the country’s most-politically charged cases finally comes to a head, the Financial Times has learned.

    And from Bloomberg, now going on 4 hours old, but no mention of Prince Bandar:

    …The charges relate to aircraft deals in South Africa** and the Czech Republic, sales of two frigates in Romania and a radar deal for air traffic control equipment in Tanzania. The SFO scrapped an investigation into BAE, Europe’s biggest weapons maker, in 2006 over bribes allegedly paid to win deals in Saudi Arabia….BAE avoided proceedings in the Saudi case after then-prime minister Tony Blair said charges might cause the Middle Eastern nation to withdraw cooperation on intelligence matters, posing a threat to national security.[italics mine]

    And FWIW, the Wall Street Journal google results for ‘BAE’ appear to report on a lucrative deal for BAE with the UK government. Nice of them not to look on the bright side, eh?

    BAE having come up as a topic back at old TNH site, thought these items might be of interest.

    ** No clue whether this is code for ‘Victor Bout’, also a past topic at the old TNH site. (Which is how that name caught my eye as I read through part of ‘McMafia’.)

    • prostratedragon says:

      Anyway, probably good to see them getting anywhere near those deals.

      Re the footnote, whatever happened to him?

  2. JimWhite says:

    I’ve been trying to wrap my head around the repeal of retroactive immunity since the day the JUSTICE Act was announced. Would it put the Telcos back on the line for significant fines?

    • kindGSL says:

      I think so.

      The telecoms have been given a free pass by congress for lying us into war, supporting torture and other war crimes, and covering up the 9/11 cover ups. If this is repealed we can sue them for damages which will be more than enough to break them up. Congress or the courts can then force them to be restructured for the public good like they were intended to be originally.

      I didn’t think it was a bit funny when AT&T was attempting to assist my suicide, so I don’t see why they should get immunity for their conspiracy to commit illegal spying and torture. Comcast either, but they did. Reversing it is a very good idea. I am getting fairly cynical about this actually happening though because I think congress actually wants big business to be able to spy on and thus torture us with complete impunity.

      That collection of data they do goes a lot farther to destroy a person’s life when the eavesdropping is combined with the corrupt leadership intent of a ‘church’ like the ‘Family’, big money, basic voyeurism, ONDCP, FBI, CIA, DOJ, DOD and all the other ‘interests’ with a market share to protect.

      When the dogs of an endless and privatized war of terror are loosed on the citizens, we get bizarre results like a ‘Christian’ Rap CD being used to give implicit instructions on how to cause very serious bodily harm to a rape victim, in order to make her ’shut up’ of course. It smacks of CIA.

      Combine that with radio and TV personalities smearing whole segments of ‘liberal’ society, women or activists, as deserving of imprisonment and rape, and it is downright scary. Scary, because doing simple politics becomes truly life threatening and dangerous. I know this because I speak from experience.

      Political tricks that clever really are too harmful to the fabric of our society to be allowed and need to be prevented. I expect people to call those sorts of conspiracies out as the treasonous acts that they are, not cover them up and go along with it. People constantly surprise me.

      ‘Feelings’ rewritten,

      Treason is the word I use to describe…
      many actions we have seen deep inside.
      Oh how the congress did vote,
      to fill our lives with woe.
      Treason it’s true,
      that’s what they do to you,
      and to innocent activists
      like me.

  3. radiofreewill says:

    There’s no doubt that Feingold’s JUSTICE Bill packs-in stronger, more sensible protections for Citizens! Let’s work for them, and hope they get adopted!

    One can only assume – for Feingold, himself – that the ‘complete’ package between Leahy’s ‘balanced approach’ and the items included with the JUSTICE Bill – all dove-tail together to nicely corral “That Which is Not Known about the PATRIOT Act” – and bring the Program within Constitutional Guidelines.

    Every ‘hole’ left behind on this ‘fix’ will come back to haunt US and the Constitution in the future!

  4. fatster says:

    Letter from ACLU today is urging us to call DiFi:

    It’s urgent that you call Senator Feinstein’s office right now and let her know that you support bold action on Patriot Act reform.

    The letter continues:
    “P.S. Here are some of the most crucial elements of the JUSTICE Act — ones that you should urge Senator Feinstein to support tomorrow:
    Protecting the privacy of records by reining in the government’s use of National Security Letters to collect the records of innocent people far removed from an actual terrorism suspect.
    Protecting humanitarian activities by preventing prosecution of people who work with or for charities that give humanitarian aid in good faith to war-torn countries.
    Protecting First Amendment rights by requiring that the government convince a court that a National Security gag order is necessary.
    Protecting privacy of communications by amending last year’s sweeping FISA Amendments Act to better protect Americans’ phone calls and emails.”

    DiFi’s number is 202 224-3841

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