The 702 Capitulations: a Real Measure of the “Deep State”

There were two details of the Section 702 reauthorization in the House that deserve more attention, as the Senate prepares for a cloture vote today at 5:30.

First, in the Rules Committee hearing for the bill, Ranking House Judiciary Committee member Jerry Nadler revealed that the FBI stopped engaging with his staffers when the two sides reached a point on negotiations over the bill beyond which they refused to budge.

Effectively, FBI just used the dual HJC/House Intelligence jurisdiction over FISA to avoid engaging in the legislative process, to avoid making any concessions to representatives supposedly overseeing this program.

As a result, the final bill included only a sham warrant requirement — one that will give criminal suspects more protection against warrantless search than it gives people against whom the FBI has no suspicion — and provided an easy way for the NSA to turn “about” collection (which has been the source of repeated NSA violations of FISA over the years) back on.

Then there was the effort Nancy Pelosi made to use the President’s reactive FISA tweet to impose a few more limits on the warrant requirement. In a filibustering speech, she suggested that Trump’s tweet claiming his had been surveilled and abused under the law (in reality, Title I warrants were used during the campaign, but Section 702 has likely been part of the investigation as well) necessitated a motion to recommit instructing HPSCI to boost the protections for Americans.

Pelosi had to have know the motion would fail (it did, with just six of the most libertarian Republicans joining Democrats in support). She counts votes better than anyone.

What the vote was really about was an effort not to fix the real problems with the bill. Nor was it a meaningful effort to add anything but illusory protections to the bill. It was an effort to make a vote in support of the bill more politically palatable. Pelosi (and Adam Schiff, who worked closely with Pelosi on this front) appears to have known that there will be political costs for supporting this bill, perhaps especially in San Francisco where one-fifth of Pelosi’s constituents are Chinese-American, one of the groups most disproportionately affected by the spying program.

She knew she was going to have to vote for the bill, political cost and all, and was trying to use Trump’s tweet to minimize the costs of doing so.

These two events, in my opinion, show how dysfunctional legislation affecting the “Deep State,” the entrenched national security bureaucracy, is. There is a clear political recognition among the Democratic leaders cooperating in passing the bill that the bill goes too far. Probably, they worry about what will happen when we learn how Jeff Sessions will use the unreviewable authority to deem either warrantless back door searches for Americans’ names or retention of Tor and VPN domestic collection a “national security” issue to target Democratic constituencies.

But that recognition was not enough to muster the political will to oppose the bill.

Heads the “Deep State” wins, tails democratic oversight fails.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

26 replies
  1. lefty665 says:

    Puts a pretty fine point on the hypocrisy/stupidity of the Russians did it Hillaryphile hysterical Dems. We don’t need no steenkin’ Russians to destroy us we can do it ourselves.

    • lefty665 says:

      You’re right, it could be both, but the Ruskies can save their rubles, we’re doing a pretty good job of destroying ourselves. Bin Laden predicted our over reactions would be fatal to us. He’s turning out to be prescient, and on more than just the trade towers. Dead, but prescient.

  2. TomA says:

    This is why public education is the only viable mitigation. The hardware is already in place and the hoovering will not cease. Access to the data will always be regulated by a mishmash of squirrelly protocols that can be circumvented if someone tries hard enough. You cannot roll back the tide.

    Big Brother is here to stay, and forewarned is forearmed.

    • pseudonymous in nc says:

      I don’t think we’re far away from a private-sector breach that makes something like the Equifax fuckup look small potatoes. My gut sense is that the only way to have a meaningful public conversation about state-backed hoovering is by analogy with corporate personal data retention (and the shitty data protection regime in the US) when it ends up in the public domain. Having private entities legally assemble massive amounts of personal data suits the spooks just fine.

  3. GKJames says:

    Not sure that lack of understanding is the issue. A nationwide referendum likely would tell us that half the country is just fine with warrant-free surveillance. For security’s sake, of course. It’s like Americans and war: they like it, which is why it’s rarely a partisan issue. Nor would it have mattered whether it was Stein, Sanders, Johnson, Clinton, or Trump who won in 2016; the outcome on 702 would’ve been the same. And while the IC is lame when it comes to understanding (vs. harvesting raw data from) the rest of the world, its feel for the US electorate is keen, certainly sharp enough to justify blowing off meaningful oversight by Congress and, of course, the courts.

  4. earlofhuntingdon says:

    For shits and giggles, what’s the basis for the WH to tell Bannon not to answer questions about the WH or the transition period?

    If the WH hasn’t proposed a legal basis for its demand, it should pound salt.  If it asserts “executive privilege”, it would have to survive the context of a criminal investigation.  And no privilege attaches until after the Don was sworn in as president.  That would leave a big hole of time through which Mueller’s team might drive a prosecutorial truck.

    Trump’s enablers will claim that not providing a legal basis “preserves room for maneuver”, except that it doesn’t.  It is most likely a simple play for time, while claiming to hide behind a longstanding principle.  Except it isn’t.  It’s a typical Trump play: throw stuff at the wall, see what sticks, charge tenants as if they were getting a Jackson Pollock, but deliver a wall covered in shit.

     

    • bmaz says:

      Yeah, this was  my point to someone on another thread I think. EP has its limits, both in time available and space within that time. It cannot just be blithely invoked and accepted. And the Trump White House has been curiously loathe to assert it. To the point of arguable waiver in some circumstances I would think. And, as to Bannon, it appears that is once again the case.

      • earlofhuntingdon says:

        If Trump’s basis is a private NDA, I should think that argument would fall at the first hurdle.  I don’t imagine Trump wants to set a precedent like that.

        Trump has built his PR image – his principal asset – on a foundation of NDAs.  Finding out that many of them are unenforceable might harm his image, the value of his empire, and the length of time he remains a businessman, a politician, and a public employee. Club Fed, however, is always taking new members.

        • bmaz says:

          And NDA basis is patently laughable, certainly post inauguration, and I think pre inauguration, for these purposes, as well.

  5. earlofhuntingdon says:

    Former Sec’y Kelly of DHS seems to have picked someone with attitudes just like him.

    The eye rolling by the current Sec’y of DHS – the very Nordic looking and sounding Kirstjen Nielsen – under heated questioning by an impassioned Sen. Cory Booker was entirely unprofessional.

    Ms. Nielsen was not in one of her own staff meetings or a Trump Cabinet meeting, where such eye rolling was probably expected.  She was giving public testimony to a Senate committee.  While Ms. Nielsen seemed well aware that Sen. Booker was not white, she claimed not to know that the Nordic country of Norway has perhaps the whitest and most homogeneous population in Europe.

    Perhaps part of her problem is that her department has rarely, if ever, been called before a congressional oversight committee, despite being responsible for a host of sensitive issues and spending many billions a year in pursuit of them.

    On an upbeat note, the persident’s physician seems to think that Donald is in excellent health, sharp, with no cognitive issues, and need only lose about 15 pounds. That last item should tell us all we need to know about how thorough was Donald’s exam.

    • earlofhuntingdon says:

      The president suddenly grew an inch, from 6’2″ to 6’3″.  Men in their 70s usually lose height.  But that inch put Trump just this side of being clinically obese for his official weight of 239 pounds.  Good genes or pure coincidence?

      As for Trump’s perfect score on the Montreal Cognitive Assessment – a single page, 10-minute, 30 question test (Kirk Murphy, have you any thoughts?) – I can only imagine how long he was prepped for it.  He would pull an all nighter studying for a urine test if he though he could brag about it.

      • pseudonymous in nc says:

        I can share some anecdotal comments from a clinical psychologist who administers it, and has to use an alternative version because clients have memorized the questions. That person thinks that some prepping was involved.

      • earlofhuntingdon says:

        The obvious answer to the discrepancy over Trump’s height – bmaz on twitter has a nice picture of him standing, at the same height, next to a 6’1″ Barack Obama – is that the good doctor was only allowed to measure Donald from the top of his hair helmet, lest he disturbed the artwork.

  6. SpaceLifeForm says:

    OT?: Trisis. Attribution is hard. Very hard.
    This is basically Stuxnet2.
    And, allegedly, it has NSA stumped.

    https://www.cyberscoop.com/trisis-ics-malware-saudi-arabia/

    Although FireEye and Dragos pinned Trisis on a nation-state, further analysis has provided little conclusive evidence for either company to be precise in its attribution. A variety of different coding indicators within Trisis have never been seen before or used by any known hacking group, leaving analysts without a roadmap.

    • SpaceLifeForm says:

      In 2012, Mr. Lee returned to the United States with his family. F.B.I. agents investigating him searched his luggage during a pair of hotel stays, and found two small books with handwritten notes that contained classified information.

      Prosecutors said that in the books, he had written down details about meetings between C.I.A. informants and undercover agents, as well as their real names and phone numbers.

  7. earlofhuntingdon says:

    A good analogy is a terrible thing to waste: A sizzling egg on a hot skillet as metaphor for a brain fried by illicit drugs. A dashed ripe, red tomato as metaphor for your helmetless, post-motorcycle crash brain.

    A bad analogy is standard journalism and deceptive. Take the newly named “girther” movement. Rightwing zealots, birthers, with Trump prominently among them, contend that Barack Obama’s birth certificate is false. Obama must be Kenyan, like his father. He’s black, isn’t he? Besides, we hate his politics, his priorities, his race.

    The claim isn’t about fraud or national origin. It is racism in sheep’s clothing. It is propaganda, dog whistle politics, intended to ruin Obama’s legitimacy and his accomplishments. Donald Trump acts as if he believes it, or uses it as cover to undo any initiative that has Obama’s fingerprints on it.

    Girtherism (Donald must be fat and unhealthy because our lying eyes tell us so) is the new coinage for those who contest the accuracy and the marketing flair with which Dr. Jackson pronounced Donald Trump cognitively fit and in excellent health. The coinage is sloppy, another false equivalence from the MSM.

    Questioning the details of Dr. Jackson’s comments is fighting back at one more apparent set of incomplete or false stories from a president on record as having told more documented lies than any predecessor. In that, Donald has succeeded in being the best ever.

  8. earlofhuntingdon says:

    Note to our resident comparative literaturist: Schadenfreude.  But you knew that.

    As an aside, I note that Sergei and Donald seem to be in comparable health, if congnitively on different planets.

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