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ACLU [and congress] Has Standing to Know What It Is Debating

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It is fundraising week(ish) here at Emptywheel. If you can, please support the site. 

In superb news, the FISA Court has agreed to release to ACLU whatever Section 215 opinions are not already covered by a 2011 FOIA suit ACLU filed in Southern District of New York.

 In an important decision, the Foreign Intelligence Surveillance Court ordered the government to review for release the court’s opinions on the meaning, scope, and constitutionality of Section 215 of the Patriot Act. The ruling is on a motion filed by the American Civil Liberties Union, the ACLU of the Nation’s Capital, and Yale Law School’s Media Freedom and Access Information Clinic. Section 215, which authorizes the government to obtain “any tangible things” relevant to foreign-intelligence or terrorism investigations, is the claimed legal basis for the NSA’s mass phone records collection program.

“We are pleased that the surveillance court has recognized the importance of transparency to the ongoing public debate about the NSA’s spying,” said Alex Abdo, staff attorney with the ACLU National Security Project. “For too long, the NSA’s sweeping surveillance of Americans has been shrouded in unjustified secrecy. Today’s ruling is an overdue rebuke of that practice. Secret law has no place in our democracy.”

The decision was based on a determination that, since ACLU is so central in these debates, it has standing to make such a request.

The Court ordinarily would not look beyond information presented by the parties to find that a claimant has Article III standing. In this case, however, the ACLU’s active participation in the legislative and public debates about the proper scope of Section 215 and the advisability of amending that provision is obvious from the public record and not reasonably in dispute. 11 Nor is it disputed that access to the Section 215 Opinions would assist the ACLU in that debate. The Court therefore concludes that the ACLU has satisfied that requirement. See, Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 579 (6th Cir. 2012). Accordingly, the Court finds that the withholding from the ACLU of the Section 215 Opinions constitutes a concrete and particularized injury in fact to the ACLU for purposes of Article III standing.

11 See e.g., Michelle Richardson, Legislative Counsel, ACLU Washington Legislative Office, Misdirection: The House Intelligence Committee’s Misleading Patriot Act Talking Points (June 20, 2013) (https://www.aclu.org/blog/national-security/misdirection-house-intelligencecommittees-misleading-patriot-act-talking); Testimony of Jameel Jaffer, Deputy Legal Director of the ACLU Foundation, and Laura W. Murphy, Director, Washington Legislative Office, ACLU, before the Senate Judiciary Committee Hearing on Strengthening Privacy Rights and National Security:

In truth, after Monday’s document dump, this decision may be more about precedent than expanded releases. Because it is limited to substantive decisions on Section 215 — and wouldn’t include every time a judge pulls more hair out upon being informed of yet another “violation” — there may not be many more decisions to release (unless, as I have wondered, there have been significant violations since 2009).

But there is another part of this decision that may be even more important, from the standpoint of precedent. It gives this brief nod to the amici, calling out the Members of Congress specifically (the other amici were journalism organizations, which, like the third party with ACLU, Media Freedom and Information Access Clinic, might have been denied standing), for its claim to standing.

Assuming that there are such Section 215 Opinions that are not at issue in the FOIA litigation, movants and amici have presented several substantial reasons why the public interest might be served by their publication.

[snip]

Congressional amici emphasize the value of public information and debate in representing their constituents and discharging their legislative responsibilities.

Remember, the Congressional amici argued they can’t do their job without being able to discuss public FISC opinions.

Notwithstanding the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA, even the amici — Members of the U.S. Congress — cannot meaningfully participate in that public debate so long as this Court’s relevant decisions and interpretations of law remain secret. Read more →

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

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Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

A — To the FBI’s knowledge, those authorities have not been abused.

That exchange is, according to DOJ’s Congressional Affairs Office, the level of detail offered up at a May 13, 2011 briefing of the House Republican Caucus regarding the PATRIOT Act provisions the House would vote to reauthorize less than two weeks later.

The questioner — who is not identified — may have been talking about comments Russ Feingold made way back on October 1, 2009, as part of the previous reauthorization of the PATRIOT Act (remember, by this point, Feingold was no longer in the Senate). Here are the things Feingold said about Section 215 in that Senate Judiciary Committee markup.

I remain concerned that critical information about the implementation of the Patriot Act remains classified. Information that I believe, would have a significant impact on the debate….. There is also information about the use of Section 215 orders that I believe Congress and the American People deserve to know. It is unfortunate that we cannot discuss this information today.

…

Mr Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting.
…

I want to specifically disagree with Senator Kyle’s [sic] statement that just the fact that there haven’t been abuses of the other provisions which are Sunsetted. That is not my view of Section 215. I believe section 215 has been misused as well.

Given the context, it is unclear whether Feingold referred to use of Section 215 for things they shouldn’t have, use of it to authorize bulk collection generally, or in the compliance issues identified in 2009 on which the Administration had recently briefed the Intelligence Committee. But his suggestion that the Senate Judiciary Committee was getting less detailed briefings than the Senate Intelligence Committee at that point is consistent with DOJ’s 2009 notice to Congress on the dragnet, which said, “The [compliance] incidents, and the Court’s responses, were also reported to the Intelligence Committees in great detail,” with no mention of similarly detailed briefings to SJC (the 2011 letter indicates that by that point SJC was getting detailed briefings as well). This, in turn, suggests he was referring to dragnet-related violations.

Regardless of what Feingold meant, though, he tied misuse very closely to the secret use of Section 215 to conduct dragnet collection of all Americans’ phone records. Feingold’s other public statements about Section 215 focus even more closely on the secret dragnet application of it.

In other words, this appears to have been a question attempting to get at the secret application of the PATRIOT Act that Feingold, along with Ron Wyden and people like Jerry Nadler, had been warning about. This appears to have been an attempt to learn about a topic that — in 2009, at least — DOJ had “agree[d] that it is important that all Members of Congress have access to information about this program” (DOJ didn’t include such blather in its 2011 notice).

Exactly 100 days before the briefing at which this question was asked, DOJ had sent House Intelligence Chair Mike Rogers (who appears to have convened this briefing) a letter noting, “In 2009, a number of technical compliance problems and human implementation errors in these two bulk collection programs were discovered as a result of Department of Justice (DOJ) reviews and internal NSA oversight.”

Yet in response to a query clearly designed to elicit both the existence of the dragnet program and details on problems associated with it, FBI Director Robert Mueller and then-General Counsel Valerie Caproni (and/or whatever staffers were with them) said, to the Bureau’s knowledge, there had been no abuses. Perhaps, then, as now, they’re relying on the claim that none of these compliance issues were willful — the letter said they weren’t intentional or bad-faith — to avoid telling members of Congress about problems with the program.

Remember, this is one of the (and may have been the only) briefings that Mike Rogers now claims provided adequate substitute for letting House members know about the letter describing the dragnet and the compliance problems associated with it. Rogers’ House Intelligence spokesperson, Susan Phalen, has claimed those briefings “not only covered all of the material in the letter but also provided much more detail.” (As far as I’ve been able to tell from the FOIA production to the ACLU, there was no similar briefing for the Democratic caucus, though FOIA production tends to be incomplete; one Democratic Congressman, Hansen Clarke, attended the Republican briefing.)

And DOJ’s own records of the briefing make it clear that when someone tried, however inartfully, to learn about the program, Mueller and Caproni obfuscated about the compliance issues and possibly the existence of the dragnet itself.

This is a concrete example of what both Justin Amash and Ron Wyden have described as a game of 20 questions briefers play in these briefings. The questioner raised one of the few public hints about the dragnet program to ask the FBI about it, and the FBI responded in a manner very similar to the way James Clapper did in March, when he lied to the SSCI.

Now, we don’t know what remains behind the redactions in the briefing, but there is one other piece of evidence that this briefing, at least, didn’t even touch on the dragnet. If you look at all 5 closed briefings turned over in production to ACLU, two — a February 28, 2011 briefing for SJC and a March 17, 2011 briefing for the House Intelligence Committee — were deemed classified “per OGA letter dated 4/26/2012.” The acronym “Other Government Agency” is usually used to refer to CIA, but in this context, where we now know NSA played a central role but revealing that role last year would have disclosed significant new details about the secret application of Section 215, it may well refer to NSA. Those briefings also redacted the identities of some briefers which, again, may be classified to hide the NSA’s role in this program.

If all this speculation is correct, then it means there was no mention of the NSA in the briefing for the Republican caucus. If there was no mention of NSA, then they really couldn’t have explained the program (both the 2009 and 2011 notices make extensive reference to the NSA).

In any case, what remains unredacted is quite clear. Someone at that briefing — the briefing that Mike Rogers’ staffer claims offered more information than had been provided in the DOJ letter — tried to learn about problems with the secret program. And they got stonewalled in response.

Was the person who asked this question and got an incomplete answer one of the 65 people who would go on to reauthorize the PATRIOT Act having had no way of learning about the program and its compliance problems?

Mike Rogers’ Excuses for Withholding Dragnet Notice Get Stupider

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Congratulations to the WaPo which is catching up to what I first reported here, that Mike Rogers didn’t tell House Members about a notice of the PATRIOT Act dragnet programs before the vote. (Note: WaPo makes an error when it claims Congress got the previous notice in 2009; Silvestre Reyes and Dianne Feinstein sat on that letter for 2 months after they got it.)

Sadly for Mike Rogers, his excuses are getting stupider.

Admittedly, his past excuses were pretty stupid. In that version, the House Intelligence Committee suggested that having four briefings (for Republicans! only?!) in the last several months made up for not providing notice back in 2011.

The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote.  This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work.  Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered.  Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff.  The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country.

But in this version, House Intelligence Committee spokesperson Susan Phalen claims providing notice of the need to be informed is a side issue.

A spokeswoman for the House committee, Susan Phalen, declined to say whether the panel had voted to withhold the letter or if the decision was made by Chairman Mike Rogers (R-Mich.).

“Because the letter by itself did not fully explain the programs, the Committee offered classified briefings, open to all Members of Congress, that not only covered all of the material in the letter but also provided much more detail in an interactive format with briefers available to fully answer any Members’ questions,” Phalen wrote in an e-mail. “The discussion of the letter not being distributed is a side issue intended to give the false impression that Congress was denied information. That is not the case.” [my emphasis]

Remember, what (according to the White Paper) Rogers did not do was write a letter telling Members of Congress there was an issue they might want to learn about. Dianne Feinstein sent a letter, dated February 8, 2011, telling colleagues they could come read the letter from the Administration, dated February 2, 2011. According to the White Paper, Mike Rogers sent no such letter — not to tell Congressmen there was a letter, not to tell them what the briefings they held instead were about. So the briefings were pointless, because without notice of them, no one would attend.

That’s not a “side issue.” That goes to the central issue of whether 65 of the yes votes for the PATRIOT Act had had adequate notice what they were voting for.

At this point, the House Intelligence Committee is not even trying to deny that. The only question remaining is whether Rogers provided no notice on his own, with the consent of the committee, or at the behest of the Administration that gave them the letter in the first place.

Administration’s OWN White Paper Backs Claim Mike Rogers Did Not Share Dragnet Notice

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I already made this point when I was the first person to point out that the House Intelligence Committee apparently did not share the 2011 notice provided by DOJ with members outside of the House Intelligence Committee.

But no one besides me appears to have noticed it. Here’s what the Section 215 dragnet White Paper says happened to the 2009 notice provided to Silvestre Reyes and Dianne Feinstein.

In December 2009, DOJ worked with the Intelligence Community to provide a classified briefing paper to the House and Senate Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata collection program. A letter accompanying the briefing paper sent to the House Intelligence Committee specifically stated that “it is important that all Members of Congress have access to information about this program” and that “making this document available to all members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215.” See Letter from Assistant Attorney General Ronald Weich to the Honorable Silvestre Reyes, Chairman, House Permanent Select Committee on Intelligence (Dec. 14, 2009). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sen. Diane Feinstein and Sen. Christopher S. Bond to Colleagues (Feb. 23, 2010); Letter from Rep. Silvestre Reyes to Colleagues (Feb. 24, 2010); [my emphasis]

Here’s what it says happened to the 2011 notice provided to Mike Rogers and Dianne Feinstein.

An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011). [my emphasis]

See that word “both” when describing what the intelligence committees did in 2009? See the description of the “Senate Intelligence Committee” followed by a period in describing what the intelligence committees did in 2011, with no mention of “both” or the House Intelligence Committee whatsoever?

The White Paper is as clear as any document spewing disingenuous claims can be (there are several even in these two passages). In 2009, both intelligence committees sent a letter to their respective colleagues letting them know the notice was available. In 2011, just the Senate Intelligence Committee did.

That means at 65 of the people who voted to reauthorize the PATRIOT Act in 2011 had no way of knowing they were reauthorizing the ongoing creation of a database of the phone-based relationships of every American. At least in theory, those 65 members were more than enough to make a difference in the vote.

Mike Rogers Says 4 Briefings Recently Makes Up for Withholding Information before PATRIOT Act Vote

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Here’s House Intelligence Chair Mike Rogers’ response to the White Paper’s revelation, backed by Justin Amash’s reports, that he didn’t invite all members of the House to read notice of the Section 215 dragnet.

The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work. Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered. Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff. The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country. [my emphasis]

So even according to Mike Rogers, Mike Rogers provided briefings to members to answer the questions they’d have no notice they needed to ask before reauthorization of the PATRIOT Act because Mike Rogers hadn’t provided the explanation of what they might want to ask questions about.

And since Edward Snowden exposed all this, he has had 4 briefings.

Nowhere in Rogers’ statement does he deny he failed to pass on the notice that read,

We believe that making this document available to all members of Congress, as we did with a similar document in December 2009, is an effective way to inform the legislative debate about reauthorization of Section 215.

Which, I take, is additional confirmation (in addition to the White Paper and reports from Congress) he failed to pass on notice that DOJ and the Administration claimed they wanted shared with all of Congress.

The legality of the 215 dragnet depends, in part, on whether or not the Executive briefed Congress. And because of Mike Rogers, it appears that that legal case is beginning to crumble.

65 2010 House Freshmen Re-Authorized PATRIOT with No Notice of Section 215 Dragnet

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The White Paper claims that the Section 215 dragnet is legal, in large part, because Congress has twice extended the PATRIOT Act without changing the terms of Section 215. A key of part that argument rests on the Administration’s claim that it gave notice to Congress about the dragnet.

Moreover, information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all Members of Congress, and Congress reauthorized Section 215 without change after this information was provided. It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized.

But as I noted, the White Paper actually suggests that a big group of Congressmen — most of the 93 members elected in 2010 — got no notice. While the Administration provided House Intelligence Chair Mike Rogers with a description of the program, he appears not to have invited all members of the House to read it, as Dianne Feinstein invited all members of the Senate to do.

Since I wrote that post, Justin Amash confirmed that his class did not get an invitation to read the notice.

Less than two weeks ago, the Obama administration released previously classified documents regarding ‪#‎NSA‬’s bulk collection programs and indicated that two of these documents had been made available to all Members of Congress prior to the vote on reauthorization of the Patriot Act. I can now confirm that the House Permanent Select Committee on Intelligence did NOT, in fact, make the 2011 document available to Representatives in Congress, meaning that the large class of Representatives elected in 2010 did not receive either of the now declassified documents detailing these programs.

I double checked via Twitter, and Amash confirmed that Rogers just never invited the House to read it.

Just 7 2010 freshmen (Sandy Adams, Trey Gowdy, Tim Griffin, Joe Heck, Tom Marino, Ben Quayle, and Dennis Ross) were on either the House Intelligence Committee or the House Judiciary Committee at the time, and therefore presumably had the opportunity to learn about the dragnet there.

The PATRIOT Act Reauthorization passed by a broad 250-153 margin.

But by my calculation, 65 of those yes votes were freshmen who had never had opportunity to learn about the dragnet. Many of them would have presumably voted to reauthorize it knowing about the dragnet (and Mike Pompeo, who played a key role in defeating Amash-Conyers, was a non-vote who would clearly vote yes). But in theory at least Mike Rogers chose not to inform a sufficiently large group that it could have swung the vote.

The Administration claims it informed Congress about the dragnet. But whether acting on his own or at the behest of the Administration, Mike Rogers left a sufficiently large group in the dark so as to negate the validity of that claim.

Mike Rogers’ Double Secret Invitation to Dance

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I’m working on a very weedy post on the White Paper’s duplicitous presentation of what it calls support for Congress for the Section 215 dragnet.

But I’d like to compare a claim from this WaPo story on how secrecy makes it difficult for Congress to exercise oversight with a detail from the White Paper.

Rogers said “very few members” take advantage of his invitations to receive quarterly staff briefings on counterterrorism operations, and others skipped briefings on the NSA bulk surveillance.

“If you have individual members who say they don’t have time to be on the intelligence committee, then I say get off the intelligence committee,” he said.

Ruppersberger said all members benefit from an expert staff and a push in recent years for greater bipartisanship on the panel. The issues are complex and time-consuming, he said, “but we have to learn them. We have to hold these agencies accountable, but we also have to give them the resources they need to protect our country.”

Sen. John D. Rockefeller IV (D-W.Va.), a member of the Senate Intelligence Committee who expressed anger that Congress was kept in the dark about interrogation and surveillance tactics under the George W. Bush administration, now feels that Congress has what it needs. He credits Feinstein and the Senate panel’s ranking Republican, Sen. Saxby Chambliss of Georgia, for inviting every senator into the committee offices to examine classified materials.

“The intelligence oversight committees have kicked the tires on these programs very hard, with hearings and legislation and oversight, and the programs have overwhelming bipartisan support on these committees,” a Rockefeller spokeswoman said.

At this point in the story, I started wondering why the WaPo made no mention of this Guardian report, which documented what the House Intelligence Committee’s responsiveness was really like.

Rep. [Morgan] Griffith requested information about the NSA from the House Intelligence Committee six weeks ago, on June 25. He asked for “access to the classified FISA court order(s) referenced on Meet the Press this past weekend”: a reference to my raising with host David Gregory thestill-secret 2011 86-page ruling from the FISA court that found substantial parts of NSA domestic spying to be in violation of the Fourth Amendment as well as governing surveillance statutes.

In that same June 25 letter, Rep. Griffith also requested the semi-annual FISC “reviews and critiques” of the NSA. He stated the rationale for his request: “I took an oath to uphold the United States Constitution, and I intend to do so.”

Almost three weeks later, on July 12, Rep. Griffith requested additional information from the Intelligence Committee based on press accounts he had read about Yahoo’s unsuccessful efforts in court to resist joining the NSA’s PRISM program. He specifically wanted to review the arguments made by Yahoo and the DOJ, as well as the FISC’s ruling requiring Yahoo to participate in PRISM.

On July 22, he wrote another letter to the Committee seeking information. This time, it was prompted by press reports that that the FISA court had renewed its order compelling Verizon to turn over all phone records to the NSA. Rep. Griffith requested access to that court ruling.

The Congressman received no response to any of his requests.

The Guardian story also reveals how the House Intelligence Committee voted against giving Alan Grayson material, and quotes Justin Amash saying he had similar difficulties getting information.

But I also wondered, since this WaPo report was clearly written in part to assess claims in the White Paper that Congressional approval has been a key part of this program, why it didn’t quote these two passages:

In December 2009, DOJ worked with the Intelligence Community to provide a classified briefing paper to the House and Senate Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata collection program. A letter accompanying the briefing paper sent to the House Intelligence Committee specifically stated that “it is important that all Members of Congress have access to information about this program” and that “making this document available to all members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215.” See Letter from Assistant Attorney General Ronald Weich to the Honorable Silvestre Reyes, Chairman, House Permanent Select Committee on Intelligence (Dec. 14, 2009). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sen. Diane Feinstein and Sen. Christopher S. Bond to Colleagues (Feb. 23, 2010); Letter from Rep. Silvestre Reyes to Colleagues (Feb. 24, 2010);

[snip]

An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011).

They describe the two notices the Intelligence Community sent the Intelligence Committees during PATRIOT Act reauthorization describing the phone and Internet dragnets.

Read more →

Steny Hoyer Thinks All Americans May Be Pre-Investigation Terrorist Communicators

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Screen shot 2013-07-25 at 8.05.39 AM

Like Glenn Greenwald, I’m appalled by the crazy language Steny Hoyer circulated yesterday to oppose the Amash-Conyers amendment. Here’s the language:

2) Amash/Conyers/Mulvaney/Polis/Massie Amendment – Bars the NSA and other agencies from using Section 215 of the Patriot Act (as codified by Section 501 of FISA) to collect records, including telephone call records, that pertain to persons who may be in communication with terrorist groups but are not already subject to an investigation under Section 215.

The language is crazy on the macro level, as Glenn notes, but I’m also fascinated by the structure of it. First, the language reverses the structure of the actual “relevant to” language that has been blown up beyond all meaning pretending it is instead specific: “pertain to persons who may be in communication with terrorist groups.” But this language is only true if you assume every single American is a pre-investigative terrorist communicator (and to be fair, with the permission to go three hops deep into the dragnet database, we probably all are “in communication with terrorist groups”). Steny then qualifies this group (all of us, really, now that we’ve all been defined to be terrorist communicators through the genius of the half-Bacon) as “not already subject to an investigation.”

But you will be, America. You will be subject to an investigation, according to Steny Hoyer.

Then there are details of the language that suggest why the Administration panicked so badly. This language would have defunded all bulk collection under Section 215, including phone records, but also including acetone and hydrogen peroxide and probably now pressure cookers. Presumably, that’s what Keith Alexander and James Clapper explained to Congress in their TS/SCI briefings the other day (not having learned they’re better off admitting their dragnets rather than having them exposed).

Which is why I find it interesting that Steny noted this would apply to NSA “and other agencies,” which includes, but is apparently not limited to, FBI.  And these other agencies are using 215 to collect, “records, including telephone call records.” And probably including health records and geolocation and gun records and the like.

And Steny wants to make sure the FBI and other agencies can get this information about us, because after all, once you go three hops deep, every American just becomes a terrorist communicator not yet under investigation.

Amash-Conyers Fails 205-217

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In one of the closest votes in a long time for civil liberties, the Amash-Conyers amendment just failed, but only barely, by a vote of 205-217.

The debate was lively, with Mike Rogers, Michele Bachmann, and Iraq verteran Tom Cotton spoke against the amendment; Amash closely managed time to include a broad mix of Democrats and Republicans.

The only nasty point of the debate came when Mike Rogers (R-MI) suggested Justin Amash (R-MI) was leading this charge for Facebook likes.

Update: Here’s the roll call.

Mike Rogers: IRS Scandal Is Real, NSA Scandal Is Not; AP Collection Is a Dragnet, Section 215 Collection Is Not

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One of the four members of Congress with greatest influence over this country’s “intelligence,” House Intelligence Chair Mike Rogers, claims that the IRS scandal is real and the risk of NSA dragnet is not.

Rogers said Amash’s amendment, which stops the NSA from collecting data under the Patriot Act, was an attempt to take advantage of anger over recent scandals including the Internal Revenue Service’s targeting of conservative groups applying for tax exempt status and the Justice Department’s probe of Associated Press journalists in connection to a leak about a thwarted terrorist plot that originated in Yemen.

“It’s certainly inflammatory and certainly misleading,” Rogers said Wednesday in an interview on Michigan radio station WTKG 1230. “I think, he tried to take advantage at any rate of people’s anger of the IRS scandal, which is real, and the AP —Associated Press dragnet by the Attorney General, Benghazi —all of those things are very real and there’s no oversight function “What they’re talking about doing is turning off a program that after 9/11 we realized we missed —we the intelligence community- missed a huge clue.” [my emphasis]

Note, too, that Rogers calls the (completely inappropriate) collection of the phone records for 20 AP phone lines a “dragnet,” but somehow doesn’t think the collection of the phone records for every single American is also a dragnet.

Again, this dude plays a significant role in this country’s “intelligence.”

From there, Rogers declined into outright misinformation.

Rogers added that NSA’s telephone data collection program has helped thwart over 50 terrorist plots.

The Section 215 collection — the only thing that would be affected by the Amash-Conyers amendment — has had a role in (per Keith Alexander’s latest claims) 13 plots.

Not 50.

13.

I can’t think of a better way for Mike Rogers to demonstrate that these programs have insufficient oversight — in which the Intelligence Committees play a crucial role — than to open his yap and make such ludicrous statements.