Mitch McConnell Just Made the Country Less Safe in Bid to Ensure FISC Continues to Be Rubber Stamp

I predicted back in April that Mitch McConnell would use the threat of straight reauthorization of a program that doesn’t do what the Intelligence Community wants to demand changes to USA F-ReDux.

And a data retention mandate — presented in the guise of a requirement that providers give notice if they plan not to retain data at least 18 months — is one the things McConnell will try to push through today.

(k) PROSPECTIVE CHANGES TO EXISTING PRACTICES RELATED TO CALL DETAIL RECORDS.—

(1) IN GENERAL.—Consistent with subsection (c)(2)(F), an electronic communication service provider that has been issued an order to produce call detail records pursuant to an order under subsection (c) shall notify the Attorney General if that service provider intends to retain its call detail records for a period less than 18 months.

(2) TIMING OF NOTICE.—A notification under paragraph (1) shall be made not less than 180 days prior to the date such electronic communications service provider intends to implement a policy to retain such records for a period less than 18 months.’’.

McConnell repeated his justification for a retention mandate last night by pointing to a provider that refused to agree to keep documents for a call record program, as he did last week. Why is Mitch worried about document retention for a call record program?

Remarkably, McConnell’s data mandate is for a shorter period of time than the 2 year data handshake the major telecoms have agreed to, according to Dianne Feinstein.

McConnell also submitted standalone amendments, the first requiring certification from James Clapper that the dragnet works before existing dragnet authorities expire, with the second one extending the expiration of the dragnet to a year.

McConnell submitted an amicus provision that simply codifies the status quo, which already permits a court to name an amicus. Significantly, McConnell’s amicus provision eliminates the reporting to Congress that Richard Burr’s bill at least had. But McConnell’s bill does include FISCR fast-track review, which I believe may actually be counterproductive. So McConnell’s amicus amendment permits the FISC to go on making shit up without any notice that’s what they’re doing.

Finally, there’s one other provision in one of two substitute bills Mitch put forward this month: an elimination of the reporting requirement of any significant FISC decisions (Section 402 is removed entirely).

Now, frankly, even in the existing USA F-ReDux, the reporting requirement permits the Executive too much discretion about what kind of details they’ll release. Even in FOIA suits, where a judge gets to weigh in, the government has been able to withhold even information that is almost certainly in the public record. Their summaries of important decisions would surely look like useless Vaughn Index summaries.

But that’s too much for Mitch McConnell — and the Intelligence Community folks whose demands he is serving. And, of course, elimination of this weak reporting requirement eliminates the only check against ongoing bulk or bulky collection, because the language surrounding Specific Selection Term includes big potential loopholes.

So consider what this means.

Over the last two weeks, Mitch McConnell has pursued policies that have led to a lapse in the phone (and CIA money transfer) dragnets. He didn’t even try to bring USA F-ReDux for an immediate vote last night; he only tried to bring up Lone Wolf and Roving Wiretap.

And his goal, for letting the dragnet expire, is to ensure the FISA Court continues to be dysfunctional.

Mitch McConnell has — according to his claims, not mine — made the country less safe with this lapse in the dragnet. All in a bid to ensure the FISC continues to operate as a rubber stamp.

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.

5 replies
  1. orionATL says:

    let’s move this appreciation up to top-o-the-pole status:
    .
    deep appreciation to emptywheel for her outstanding work in charting the snags and sandbars of the various devious, and deviously named, spying-on-Americans legislations and fbi-nsa-doj practices.

    .
    too bad the senators will now tuck their tails between their legs and unanimously vote for the deviously named, with yet more devious practices incorporated, USA freedom bill.

    .
    this vote, of course, will be for no other national exigency than to protect themselves from attack in the next election cycle.

    .
    cowards all !!

  2. orionATL says:

    former nsa general counsel stewart baker believes americans have no reason to distrust national security lawyers, none at all (“just bullshit”).

    .
    http://www.theguardian.com/us-news/2015/jun/01/nsa-surveillance-patriot-act-congress-secret-law:
    .
    [… After a New York Times story in 2005 revealed the existence of the bulk domestic phone records program, attorneys for the US Justice Department and NSA argued, with the blessing of the Fisa Court, that Section 215 of the Patriot Act authorized it all along – precisely the contention that the 2nd circuit court of appeals rejected in May.

    Despite that recent history, veteran intelligence attorneys reacted with scorn to the idea that NSA lawyers will undermine surveillance reform. Robert Litt, the senior lawyer for director of national intelligence James Clapper, said during a public appearance last month that creating a banned bulk surveillance program was “not going to happen”.

    “The whole notion that NSA is just evilly determined to read the law in a fashion contrary to its intent is bullshit, of the sort that the Guardian and the left – but I repeat myself – have fallen in love with. The interpretation of 215 that supported the bulk collection program was creative but not beyond reason, and it was upheld by many judges,” said former NSA general counsel Stewart Baker, referring to Section 215 of the Patriot Act.

    This is the section that permits US law enforcement and surveillance agencies to collect business records and expired at midnight, almost two years after the whistleblower Edward Snowden revealed to the Guardian that the Patriot Act was secretly being used to justify the collection of phone records from millions of Americans.

    With one exception, the judges that upheld the interpretation sat on the non-adversarial Fisa Court, a body that approves nearly all government surveillance requests and modifies about a quarter of them substantially. The exception was reversed by the 2nd circuit court of appeals.

    Baker, speaking before the Senate voted, predicted: “I don’t think anyone at NSA is going to invest in looking for ways to defy congressional intent if USA Freedom is adopted.” …]

  3. bsbafflesbrains says:

    So NSA employees could still perform “independent contract” industrial espionage with impunity since none of the oversight is really watching the watchers? Will there be layoffs due to any of the so-called reforms and sunsets?

  4. What Constitution? says:

    It’s Tuesday morning. As near as I can tell, we’re not dead yet. So maybe they could take a moment or two more to think about what they’re hell bent on reinstating before they do so out of fear alone.

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