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How to Break the Law Under USA F-ReDux: The Emergency Provision that Would Blow Up the Bill

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As remarkable as was the House Judiciary Committee’s impotence to protect the Fourth Amendment in yesterday’s markup of USA F-ReDux, of equal importance was Raul Labrador’s effort to more narrowly tailor the emergency provision in the bill, which permits the Attorney General to authorize emergency production under Section 215 prior to getting FISA Court approval.

EMERGENCY AUTHORITY FOR PRODUCTION OF TANGIBLE THINGS.—

(1) Notwithstanding any other provision of this section, the Attorney General may require the emergency production of tangible things if the Attorney General—

(A) reasonably determines that an emergency situation requires the production of tangible things before an order authorizing such production can with due diligence be obtained;

(B) reasonably determines that the factual basis for the issuance of an order under this section to approve such production of tangible things exists;

Labrador (at 2:07) suggested that his amendment was very minor, just requiring the emergency provision be used only when there was an actual emergency.

I don’t see what it should blow up the bill, I don’t see why it would blow up the bill, all it’s doing is attempting to clarify the meaning of a term in the bill, which is an emergency situation, as one that involves the potential or imminent death or bodily harm to any person.

Yet, as Labrador noted, without the restriction would permit the AG to get records whenever she wanted.

As Zoe Lofgren noted, the lack of specificity in the bill is an invitation for abuse.

Labrador’s proposed change was even more minor given that we know NSA, at least, has redefined “threat of bodily harm” to “threat to property” in the case of corporate persons.

Jim Sensenbrenner, who argued that this emergency provision goes beyond what is required for emergency electronic surveillance or emergency physical surveillance under FISA, countered that tweaking the emergency provision would blow up the bill.

He and I may have a difference of opinion on what blows up this bill. You know, let me say this all was considered during the negotiations that were going on, I think there is an appropriate compromise to keep the dogs at bay, that is continued in the emergency appropriations of this bill and I am afraid that the amendment from the gentleman from Idaho would be who let the dogs out.

This is alarming.

I get that there’s a need for an emergency provision under Section 215 if it will cover things like Internet production, because the authorization process is too long for active investigations (which wouldn’t, mind you, meet the terms of Labrador’s amendment). But the emergency provision of USA F-ReDux will be one of the chief ways the IC will break the law under this bill (even going beyond what I believe to be a general violation of Riley‘s prohibition on searching smart phones without a warrant under the CDR provision).

That’s because of the way the bill significantly degrades the status quo on what happens if the FISC judges that this was an inappropriate use of Section 215. Currently, the FISC can make the government destroy the records. Under the bill, the government would be prevented from actually using the records in any official proceeding, but given that the AG polices that, and given that FBI basically has a department whose role is to parallel construct records like this, what this bill becomes is a means by which the FBI can get records they know to be illegal. Then, after the FISC rules the collection illegal (or, after FBI decides to “stop” collection before the 7 day deadline and thereby avoids telling the FISC what they’ve done), they can still keep those records so long as they parallel construct them. I’m not even sure collection ended before application would ever get reported to Congress.

And remember, there’s reason to believe that in the one year that the government has had an emergency provision for Section 215, it violated the prohibition on targeting someone for First Amendment protected activities.

If, as Sensenbrenner claims, closing some of the gaping loopholes on this provision would blow up the bill, it is an all but explicit admission that the Intelligence Community plans to use the immunity of this bill to be able to conduct illegal collection against people who are only “related” to an ongoing investigation.

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.

Nine Members of Congress Vote to Postpone the Fourth Amendment

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John Conyers, Jim Sensenbrenner, Darrell Issa, Steve Cohen, Jerry Nadler, Sheila Jackson Lee, Trey Gowdy,  John Ratcliffe, Bob Goodlatte all voted to postpone the Fourth Amendment today.

At issue was Ted Poe’s amendment to the USA Freedom Act (USA F-ReDux; see the debate starting around 1:15), which prohibited warrantless back door searches and requiring companies from inserting technical back doors.

One after another House Judiciary Committee member claimed to support the amendment and, it seems, agreed that back door searches violate the Fourth Amendment. Though the claims of support from John Ratcliffe, who confessed to using back door searches as a US Attorney, and Bob Goodlatte, who voted against the Massie-Lofgren amendment last year, are suspect. But all of them claimed they needed to vote against the amendment to ensure the USA Freedom Act itself passed.

That judgment may or may not be correct, but it’s a fairly remarkable claim. Not because — in the case of people like Jerry Nader and John Conyers — there’s any question about their support for the Fourth Amendment. But because the committee in charge of guarding the Constitution could not do so because the Intelligence Committee had the sway to override their influence. That was a point made, at length, by both Jim Jordan and Ted Poe, with the latter introducing the point that those in support of the amendment but voting against it had basically agreed to postpone the Fourth Amendment until Section 702 reauthorization in 2017.

(1:37) Jordan: A vote for this amendment is not a vote to kill the bill. It’s not a vote for a poison pill. It’s not a vote to blow up the deal. It’s a vote for the Fourth Amendment. Plain and simple. All the Gentleman says in his amendment is, if you’re going to get information from an American citizen, you need a warrant. Imagine that? Consistent with the Fourth Amendment. And if this committee, the Judiciary Committee, the committee most responsible for protecting the Bill of Rights and the Constitution and fundamental liberties, if we can’t support this amendment, I just don’t see I it. I get all the arguments that you’re making, and they’re all good and the process and everything else but only in Congress does that trump — I mean, that should never trump the Fourth Amendment.

(1:49) Poe; We are it. The Judiciary Committee is it. We are the ones that are protecting or are supposed to protect, and I think we do, that Constitution that we have. And we’re not talking about postponing an Appropriations amount of money. We’re not talking about postponing building a bridge. We’re talking about postponing the Fourth Amendment — and letting it apply to American citizens — for at least two years. This is our opportunity. If the politics says that the Intel Committee — this amendment may be so important to them that they don’t like it they’ll kill the deal then maybe we need to reevaluate our position in that we ought to push forward for this amendment. Because it’s a constitutional protection that we demand occur for American citizens and we want it now. Not postpone it down the road to live to fight another day. I’ve heard that phrase so long in this Congress, for the last 10 years, live to fight another day, let’s kick the can down the road. You know? I think we have to do what we are supposed to do as a Committee. And most of the members of the Committee support this idea, they agree with the Fourth Amendment, that it ought to apply to American citizens under these circumstances. The Federal government is intrusive and abusive, trying to tell companies that they want to get information and the back door comments that Ms. Lofgren has talked about. We can prevent that. I think we should support the amendment and then we should fight to keep this in the legislation and bring the legislation to the floor and let the Intel Committee vote against the Fourth Amendment if that’s what they really want to do. And as far as leadership goes I think we ought to just bring it to the floor. Politely make sure that the law, the Constitution, trumps politics. Or we can let politics trump the Constitution. That’s really the decision.

Nevertheless, only Louie Gohmert, Raul Labrador, Zoe Lofgren, Suzan DelBene, Hakeem Jeffries, David Cicilline, and one other Congressman–possibly Farenthold–supported the amendment.

The committee purportedly overseeing the Intelligence Community and ensuring it doesn’t violate the Constitution has instead dictated to the committee that guards the Constitution it won’t be permitted to do its job.

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.