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If Dems Successfully Message on News Outlets Lefty Pundits No Longer Read, Did It Ever Happen?

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In the wake of a WSJ report that Democrats have fallen to a historic approval low, the usual suspects — in this case, David Atkins — have taken to Bluesky to blame everything on Chuck Schumer and Hakeem Jeffries. Again.

Atkins demanded that Democratic leaders talk about Trump conspiring with his personal attorneys to cover things up.

People keep asking “what do you expect Democrats to do???”

I expect Schumer and Jeffries to hold a press conference and say: “Donald Trump is conspiring with his personal attorneys he corruptly installed at DOJ to cover up his close friendship and possible horrific crimes with Jeff Epstein.”

Let me stipulate that the messaging that Schumer and Jeffries do do is often feckless, though in this case, Schumer released a statement on both Xitter and Bluesky on Thursday first arguing that sending Donald Trump’s personal lawyer to meet with Ghislaine “stinks of high corruption,” which led a few articles. That followed around ten other social media posts, including his prediction on Wednesday that, “Maybe Speaker Johnson declared the Epstein Recess to give Trump time to prepare papers for the pardon of Ghislaine Maxwell. Disgraceful” (making Schumer a prominent early adopter of the theory that Trump will pardon the sex trafficker) and a post (again posted to both Xitter and Bluesky) elevating video of Markwayne Mullin admitting Republicans were trying to give Trump cover. And while Jeffries was more focused on redistricting and messaging on the Big Ugly last week, Epstein was a repeated focus in his press conferences (it was the initial focus of Katherine Clark’s comments), and he was mocking Trump on this even before it bubbled into a scandal.

Atkins’ complaints that Dems aren’t messaging on Epstein comes in the wake of three significant earned media wins by Democrats on Epstein in recent weeks:

  • After Dick Durbin released a whistleblower’s description of the 1,000 people Pam Bondi pulled off their day jobs to review Epstein files, Allison Gill responded by releasing damning details of the search, followed days later by NYT. The details of this search will continue to feed the controversy (as well as FOIAs to get the spreadsheet of prominent names discovered in the search, so it can be compared to the list of names Todd Blanche asked Maxwell about in their cozy tête-à-tête). Update: Durbin sent a letter (with Sheldon Whitehouse) to Todd Blanche for information about the meeting, which NYT reported on.
  • After Ron Wyden sent letters in March and June demanding that Todd Bessent and Pam Bondi release FinCEN files on Epstein and Leon Black, NYT did a story on the financial aspects. When Republicans accused Wyden of sitting on this during the Biden Administration, he sent another letter disproving that and mapping out what steps they should take. In a great story on Wyden’s efforts, Greg Sargent noted the value of such letters: “such trolling by lawmakers can be constructive if it communicates new information to the public or highlights the failure of others in power to exercise oversight and impose accountability.”
  • And then there was Ro Khanna’s tactic that shut down the House by leading Mike Johnson to give up on a rule governing last week’s work, which led to follow-on efforts in committees and the Senate. This — which required working with Tom Massie (something lefties religiously disavow) — was a parliamentary score, with series of stories in the Hill beat press to follow.

Almost none of that appears in Atkins’ response to my question why he was ignoring other members. He said he had mentioned a Whitehouse interview, but he ignored the long thread from Whitehouse more directly addressing the corruption, as well as a Podcast with Jamie Raskin where they dedicate the last 5 minutes of to it.

The real tell to Atkins’ willful ignorance (or outright deceit) about what Dems have done is his claim, “I have highlighted [Dems who are pushing this]. But they get lost in the fray when leadership isnt backing them up,” [my emphasis] a day after RTing this story from Axios.

The social media card for the story, which uses Jeffries’ picture above two quotes, misleadingly suggests the Minority Leader said, “This whole thing is just such bullsh**t” … “I don’t think this issue is big outside the Beltway.” Which seems to be as far as Atkins got.

The entire story is premised on those quoted centrists opposing Jeffries’ encouragement to focus on it, and links an earlier story describing Jeffries’ affirmative focus on it.

Why it matters: Minority Leader Hakeem Jeffries’ (D-N.Y.) leadership team has encouraged its members to maintain the drumbeat on Epstein,

The column goes on to list just some of what Dems are doing — with the encouragement of the Minority Leader (the earlier post describes that Ro Khanna worked closely with Jeffries in jamming the Rules Committee).

The other side: Other Democrats argued that going after Republicans on policy and slamming them on Epstein aren’t mutually exclusive. “I think all these issues are linked together,” Rep. Greg Casar (D-Texas) told Axios.

  • “Trump is willing to lie and betray his own people, and he’s willing to take away your health care to give it to his rich friends. … I think it’s all part of one story,” said Casar, the chair of the Congressional Progressive Caucus.
  • Rep. Pramila Jayapal (D-Wash.), a former CPC chair, said similarly: “I’m talking about Medicaid, I’m talking about tax breaks to billionaires — and I’m talking about Epstein, because he fits right in there.”

State of play: Jeffries has surprised some of his members by bear-hugging rank-and-file efforts to force the release of the Epstein files despite his usual reluctance to engage on salacious issues.

  • His messaging arm, the Democratic Policy and Communications Committee, sent out several emails to members’ offices last week on how to message on Epstein, as Politico first reported.
  • “We’ve encouraged members to lean into this, to talk to their constituents about it,” said Rep. Maxwell Frost (D-Fla.), a DPCC co-chair. “It’s an opportunity to speak with people who might usually disagree with you.”

Atkins’ entire whine — based off a premise he would have known was outright bullshit if he had only clicked through to a ragebait story he RTed — was rewarding for Atkins; 17 people RTed it as if it were true, with one person even whining about Garland along the way. But the whole thing was either an affirmative misrepresentation or a confession that Atkins knows fuckall about what Dems have done and simply didn’t bother to check before whining about it.

I won’t lay out all that Dems have done — there are actually multiple stories out that I’m sure even Atkins could read if he bothered to click through on ragebait. It should be enough to say that Dems, with Massie, deprived Republicans of the tools of their majority for a week and have been mocking them relentlessly ever since. That Johnson ran away will continue to feed this story.

But one example is illustrative. Ruben Gallego — often attacked for his centrism and coddling of cryptograft — got into an extended spat with Trump mouthpiece Markwayne Mullin in the Senate last week (the appearance Schumer elevated), after Gallego tried to pass a resolution to release the files. Following that, Gallego appeared on Jim Acosta’s Substack show, where he described how this all reeks of a cover-up (and accused Republicans of revictimizing the victims and exploiting the vulnerabilities of their base). He played on populist concerns about rich people, and mocked Republicans for fleeing like they did when the Brits invaded DC. A centrist Dem delivered up precisely the kind of message Atkins claimed no one is delivering, and he did it two days before Atkins whined about it.

I’m not sure Atkins has an excuse for making a false claim belied by an Axios story he had RTed a day earlier. At some point, a pundit has to be responsible for clicking through to the stories they’re disseminating.

But — again stipulating that Jeffries and Schumer’s messaging is often feckless — I think there’s something else driving much lefty belief that Dems are not messaging, on top of pundits like Atkins making false claims belied by ragebait they’ve disseminated without reading.

In the last several years, fascist-supporting oligarchs have given people good reason to stop consuming a wide variety of media. After Elon Musk bought Twitter — the algorithm of which already disproportionately rewarded right wingers — he invited Nazis to overrun it. In a bid to cultivate Trump’s favor, Jeff Bezos has willfully gutted the WaPo and shut down anti-Trump opinion on the platform. NYT continues to frame most stories in ways that pitch Trump as the hero, with many outright framed to Dem- or trans-bash. Substack, where people like Paul Krugman and Terry Moran and Jim Acosta have fled after having been hounded out of traditional media, also platforms Nazis. Google has allowed AI to enshittify its search function, making it far more difficult to find breaking news.

One by one, lefties have abandoned those platforms, often in a failed attempt to force the oligarchs who own them to reverse course. The decision to abandon those platforms are, for most people, self-evidently ethical decisions.

But the consequences of those ethical decisions are that even if Dems do something great, you will be blind — blinded by ethical choices you yourself made.

Your blindspots might entail the following:

  • You will see (and far too often, help to disseminate) the latest outrage Trump posts to his Truth Social account, as well as the uncontested disinformation in it. Those posts will often silence the moral criticism of Trump, as happened with Rosie O’Donnell.
  • You will view Trump speeches and press sprays, as well as oversight hearings in which Democrats have been forcing real news that often is not getting picked up, through the lens of Aaron Rupar or Acyn, who make it easy but bring their own narrow lens. You might see clips from the traditional media. Not all of those clips will be easy to disseminate yourself without rewarding Xitter.
  • You will see the stories about shitty framing or Dem- (or trans-) punching at NYT, but will miss better routine news stories, and even, sometimes, important breaking reporting.
  • To the extent to which it still exists, you will not see the general access political reporting at WaPo.
  • You will not see Capitol Hill beat reporting that is publicized almost entirely on Xitter, including reports admiringly explaining why chasing Mike Johnson away early took some tactical smarts, unless you subscribe to them.
  • Because there’s not a viral algorithm at Bluesky, you may only see the content from electeds crafted for that platform if you follow them directly and even then only if you happen to be online when they post it; you will not see what they post — very often self-consciously crafted to be more confrontational — on Xitter.
  • You will see rage-bait stories from Axios and Politico designed to drive depression among Dems and often, as Atkins did, you’ll disseminate it without clicking through to see what it really says.
  • You won’t see what right wingers are saying on Fox or NewsMax or Breitbart, not even when they’re bitching about firey speeches Hakeem Jeffries made that didn’t filter into Bluesky.
  • You may entirely miss what is going on on TikTok, which is where a great deal of messaging is happening (so will I, as I learned when I looked for the Rosie O’Donnell post that had been widely covered in right wing media before Trump threatened to strip her citizenship over it).
  • You will have to work harder to find news stories that have been broadly reported.

In short, at least in part due to perfectly ethical decisions from people who used to have a radically different media diet before certain changes accompanying rising fascism, even activist Dems will be largely blind to a great deal of what Dems are doing.

I absolutely support that ethical decision (and after two weeks of doing a great deal of — sometimes very effective, IMO — messaging about Epstein and Tulsi’s disinformation campaign designed to bury it at the Nazi bar, such choices may be crucial for your mental health).

But it is not remotely ethical to make comments about what Dems are or are not doing if you have not checked your blindspots.

More importantly, we will not survive if you respond to the effects of oligarch takeover with passivity, demanding you get fed things as easily as you used to get. That is what they are counting on: that their efforts to make it harder to find important news will lead you to give up and assume it doesn’t exist.

I may be biased, but I’m also allegedly an expert on this, because it was the topic of my dissertation. Finding and disseminating oppositional news is an absolutely critical part of opposing authoritarianism; it can take work and risk your security. But it becomes a fundamental part of citizenship.

The oligarch-led assault on the press started long before Trump started implementing fascism but has accelerated during precisely the period when Democrats have demanded to have Dem messaging land in their lap. There are many things Dem electeds absolutely have to do better (though having spent far too much time on Xitter in the last week, it’s clear there’s a purpose to tailor messaging on both platforms, which I do too). I agree that neither Schumer nor Jeffries is great at this messaging (but am also acutely aware of how much time they’re spending off-camera trying to ensure Dems have a chance in 2026).

But Dems have done almost everything right on Epstein, down to forcing Denny Hastert’s successor to abdicate his power for a week to help Trump cover up his sex trafficking scandal. Yet whining pundits are winning clout on Bluesky by misrepresenting rather than learning from that fact.

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The Worm Turns: Neither Devin Nunes Nor Ron DeSantis (Thus Far) Support Jim Jordan’s Impeachment Bid

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As I laid out a few weeks ago, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

I was in DC when Mark Meadows and Jim Jordan rolled out articles of impeachment against Rod Rosenstein. As a number of people have noted, the articles themselves are batshit crazy, calling over-redaction subsequently corrected a high crime and misdemeanor.

And some of the articles would require a time machine to prove, such as holding Rosenstein responsible for a FISA application submitted when he was merely the US Attorney for MD with no role in the investigation.

But something else is even more interesting to me.

The original press release included the names of 6 congressmen, in addition to Mark Meadows and Jim Jordan, who co-sponsored the articles HR 1028:

  1. Mark Meadows
  2. Jim Jordan
  3. Andy Biggs
  4. Scott Perry
  5. Paul “Dentists Read Body Language” Gosar
  6. Jody Hice
  7. Matt Gaetz
  8. Scott DesJarlais

And while the other three congressmen who joined as co-sponsors seemed a lot more sheepish about signing on, the following me also joined:

  1. John Duncan
  2. Louie Gohmert
  3. Bill Posey

By mid-morning yesterday, in the face of opposition from Paul Ryan and citing some deal with Bob Goodlatte, Meadows and Jordan admitted defeat. Shortly thereafter, Jordan announced a bid to be Speaker, with support from Meadows.

Apparently this morning, the following men signed on:

  1. Tom Massie
  2. Ted Yoho
  3. Ralph Norman
  4. Duncan Hunter

We’re two days into this effort, and thus far, two names are conspicuously absent: Devin Nunes (who has admittedly refrained from officially participating in some of the batshittery to — apparently — limit his legal exposure) and Ron DeSantis, who has spent the last seven months leading efforts to discredit Mueller’s investigation.

While I was in DC, a Republican admitted to me that this was just about ginning up votes and predicted that the House is done meeting until November — meaning Rosenstein should be safe from Congressional tampering until then.

If so, DeSantis’ non-participation in this stunt is telling. He’s running for governor with the vocal support of President Trump.

Indeed, DeSantis currently has a healthy lead against Adam Putnam in the GOP primary, with the primary date a month away, August 28, largely due to Trump’s support.

DeSantis is also one of the people who most obviously benefitted from Russian interference in 2016.

That Ron DeSantis has not (yet) signed onto this stunt suggests he’s not sure that, in a month (or perhaps in three, in the general), having done so will benefit his electoral chances to be governor.

So apparently Jim Jordan (facing sexual assault cover-up charges) and Duncan Hunter (facing even more serious legal troubles) think it’s a smart idea to go all-in on supporting Trump. But Ron DeSantis does not.

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Asha Rangappa Demands Progressive Left Drop Bad Faith Beliefs in Op-Ed Riddled with Errors Demonstrating [FBI’s] Bad Faith

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It’s my fault, apparently, that surveillance booster Devin Nunes attacked the FBI this week as part of a ploy to help Donald Trump quash the investigation into Russian involvement in his election victory. That, at least, is the claim offered by the normally rigorous Asha Rangappa in a NYT op-ed.

It’s progressive left privacy defenders like me who are to blame for Nunes’ hoax, according to Rangappa, because — she claims — “the progressive narrative” assumes the people who participate in the FISA process, people like her and her former colleagues at the FBI and the FISA judges, operate in bad faith.

But those on the left denouncing its release should realize that it was progressive and privacy advocates over the past several decades who laid the groundwork for the Nunes memo — not Republicans. That’s because the progressive narrative has focused on an assumption of bad faith on the part of the people who participate in the FISA process, not the process itself.

And then, Ragappa proceeds to roll out a bad faith “narrative” chock full of egregious errors that might lead informed readers to suspect FBI Agents operate in bad faith, drawing conclusions without doing even the most basic investigation to test her pre-conceived narrative.

Rangappa betrays from the very start that she doesn’t know the least bit about what she’s talking about. Throughout, for example, she assumes there’s a partisan split on surveillance skepticism: the progressive left fighting excessive surveillance, and a monolithic Republican party that, up until Devin Nunes’ stunt, “has never meaningfully objected” to FISA until now. As others noted to Rangappa on Twitter, the authoritarian right has objected to FISA from the start, even in the period Rangappa used what she claims was a well-ordered FISA process. That’s when Republican lawyer David Addington was boasting about using terrorist attacks as an excuse to end or bypass the regime. “We’re one bomb away from getting rid of that obnoxious [FISA] court.”

I’m more peeved, however, that Rangappa is utterly unaware that for over a decade, the libertarian right and the progressive left she demonizes have worked together to try to rein in the most dangerous kinds of surveillance. There’s even a Congressional caucus, the Fourth Amendment Caucus, where Republicans like Ted Poe, Justin Amash, and Tom Massie work with Rangappa’s loathed progressive left on reform. Amash, Mike Lee, and Rand Paul, among others, even have their name on legislative attempts to reform surveillance, partnering up with progressives like Zoe Lofgren, John Conyers, Patrick Leahy, and Ron Wyden. This has become an institutionalized coalition that someone with the most basic investigative skills ought to be able to discover.

Since Rangappa has not discovered that coalition, however, it is perhaps unsurprising she has absolutely no clue what the coalition has been doing.

In criticizing the FISA process, the left has not focused so much on fixing procedural loopholes that officials in the executive branch might exploit to maximize their legal authority. Progressives are not asking courts to raise the probable cause standard, or petitioning Congress to add more reporting requirements for the F.B.I.

Again, there are easily discoverable bills and even some laws that show the fruits of progressive left and libertarian right efforts to do just these things. In 2008, the Democrats mandated a multi-agency Inspector General on Addington’s attempt to blow up FISA, the Stellar Wind program. Progressive Pat Leahy has repeatedly mandated other Inspector General reports, which forced the disclosure of FBI’s abusive exigent letter program and that FBI flouted legal mandates regarding Section 215 for seven years (among other things). In 2011, Ron Wyden started his thus far unsuccessful attempt to require the government to disclose how many Americans are affected by Section 702. In 2013, progressive left and libertarian right Senators on the Senate Judiciary Committee tried to get the Intelligence Community Inspector General to review how the multiple parts of the government’s surveillance fit together, to no avail.

Rangappa’s apparent ignorance of this legislative history is all the more remarkable regarding the last several surveillance fights in Congress, USA Freedom Act and this year’s FISA Amendments Act reauthorization (the latter of which she has written repeatedly on). In both fights, the bipartisan privacy coalition fought for — but failed — to force the FBI to comply with the same kind of reporting requirements that the bill imposed on the NSA and CIA, the kind of reporting requirements Rangappa wishes the progressive left would demand. When a left-right coalition in the House Judiciary Committee tried again this year, the FBI stopped negotiating with HJC’s staffers, and instead negotiated exclusively with Devin Nunes and staffers from HPSCI.

With USAF, however, the privacy coalition did succeed in a few reforms (including those reporting requirements for NSA and CIA). Significantly, USAF included language requiring the FISA Court to either include an amicus for issues that present “a novel or significant interpretation of the law,” or explain why it did not. That’s a provision that attempts to fix the “procedural loophole” of having no adversary in the secret court, though it’s a provision of law the current presiding FISC judge, Rosemary Collyer, blew off in last year’s 702 reauthorization. (Note, as I’ve said repeatedly, I don’t think Collyer’s scofflaw behavior is representative of what FISC judges normally do, and so would not argue her disdain for the law feeds a “progressive narrative” that all people involved in the FISA process operated in bad faith.)

Another thing the progressive left and libertarian right won in USAF is new reporting requirements on FISA-related approvals for FISC, to parallel those DOJ must provide. Which brings me to Rangappa’s most hilarious error in an error-ridden piece (it’s an error made by multiple civil libertarians earlier in the week, which I corrected on Twitter, but Rangappa appears to mute me so wouldn’t have seen it).

To defend her claim that the FISC judge who approved the surveillance of Carter Page was operating, if anything, with more rigor than in past years, Rangappa points to EPIC’s tracker of FISA approvals and declares that the 2016 court rejected the highest number of applications in history.

We don’t know whether the memo’s allegations of abuse can be verified. It’s worth noting, however, that Barack Obama’s final year in office saw the highest number of rejected and modified FISA applications in history. This suggests that FISA applications in 2016 received more scrutiny than ever before.

Here’s why this is a belly-laughing error. As noted, USAF required the FISA Court, for the first time, to release its own record of approving applications. It released a partial report (for the period following passage of USAF) covering 2015, and its first full report for 2016. The FISC uses a dramatically different (and more useful) counting method than DOJ, because it counts what happens to any application submitted in preliminary form, whereas DOJ only counts applications submitted in final form. Here’s how the numbers for 2016 compare.

Rangappa relies on EPIC’s count, which for 2016 not only includes an error in the granted number, but adopts the AOUSC counting method just for 2016, making the methodology of its report invalid (it does have a footnote that explains the new AOUSC numbers, but not why it chose to use that number rather than the DOJ one or at least show both).

Using the only valid methodology for comparison with past years, DOJ’s intentionally misleading number, FISC rejected zero applications, which is consistent or worse than other years.

It’s not the error that’s the most amusing part, though. It’s that, to make the FISC look good, she relies on data made available, in significant part, via the efforts of a bipartisan coalition that she claims consists exclusively of lefties doing nothing but demonizing the FISA process.

If anyone has permitted a pre-existing narrative to get in the way of understanding the reality of how FISA currently functions, it’s Rangappa, not her invented progressive left.

Let me be clear. In spite of Rangappa’s invocation (both in the body of her piece and in her biography) of her membership in the FBI tribe, I don’t take her adherence to her chosen narrative in defiance of facts that she made little effort to actually learn to be representative of all FBI Agents (which is why I bracketed FBI in my title). That would be unfair to a lot of really hard-working Agents. But I can think of a goodly number of cases, some quite important, where that has happened, where Agents chased a certain set of leads more vigorously because they fit their preconceptions about who might be a culprit.

That is precisely what has happened here. A culprit, Devin Nunes — the same guy who helped the FBI dodge reporting requirements Rangappa thinks the progressive left should but is not demanding — demonized the FISA process by obscuring what really happens. And rather than holding that culprit responsible, Rangappa has invented some other bad guy to blame. All while complaining that people ever criticize her FBI tribe.

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Steve King Just Voted to Subject Americans to “Worse than Watergate”

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Devin Nunes has launched the next installment of his effort to undercut the Mueller investigation, a “Top Secret” four page report based on his staffers’ review of all the investigative files they got to see back on January 5. He then showed it to a bunch of hack Republicans, who ran to the right wing press to give alarmist quotes about the report (few, if any, have seen the underlying FBI materials).

Mark Meadows (who recently called for Jeff Sessions’ firing as part of this obstruction effort) said, “Part of me wishes that I didn’t read it because I don’t want to believe that those kinds of things could be happening in this country that I call home and love so much.”

Matt Gaetz (who strategized with Trump on how to undercut the Mueller investigation on a recent flight on Air Force One) said, “The facts contained in this memo are jaw-dropping and demand full transparency. There is no higher priority than the release of this information to preserve our democracy.”

Ron DeSantis (who joined Gaetz in that Air Force One strategy session with Trump and also benefitted directly from documents stolen by the Russians) said it was “deeply troubling and raises serious questions about the [the people in the] upper echelon of the Obama DOJ and Comey FBI,” who of course largely remain in place in the Sessions DOJ and Wray FBI.

Steve King claimed what he saw was, “worse than Watergate.” “Is this happening in America or is this the KGB?” Scott Perry said. Jim Jordan (who joined in Meadows’ effort to fire Sessions) said, “It is so alarming.” Lee Zeldin said the FBI, in using FISA orders against Russians and facilities used by suspected agents of Russia was relying “on bad sources & methods.”

It all makes for very good theater. But not a single one of these alarmists voted the way you’d expect on last week’s 702 reauthorization votes if they were really gravely concerned about the power of the FBI to spy on Americans.

Indeed, Gaetz, DeSantis, and King — three of those squawking the loudest — voted to give the same FBI they’re claiming is rife with abuse more power to spy on Americans, including political dissidents. Nunes, who wrote this alarming report, also wrote the bill to expand the power of the FBI he’s now pretending is badly abusive.

Even those who voted in favor of the Amash-Lofgren amendment and against final reauthorization — Meadows, Jordan, and Perry, among some of those engaging in this political stunt — voted against the Democratic motion to recommit, which would have at least bought more time and minimally improved the underlying bill (Justin Amash and Tom Massie, both real libertarians, voted with Democrats on the motion to recommit). Zeldin was among those who flipped his vote, backing the bill that will give the FBI more power after making a show of supporting Amash’s far better bill.

In short, not a single one of these men screaming about abuse at the FBI did everything they could do to prevent the FBI from getting more power.

Which — if you didn’t already need proof — shows what a hack stunt this is.

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USA F-ReDux: The Risks Ahead

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Sometime after 2 today, the House will pass USA F-ReDux by a large margin. Last night the Rules Committee rejected all amendments, including two (a version of the Massie-Lofgren amendment prohibiting back doors and a Kevin Yoder amendment that would improved ECPA protections) that have majority support in the House.

After the bill passes the House today it will go to the Senate where Mitch McConnell will have his way with it.

What happens in the Senate is anyone’s guess.

One reason no one knows what Mitch has planned is because most people haven’t figured out what Mitch really wants. I think there are 3 possibilities:

  • He actually wants USA F-ReDux with some tweaks (about which more below) and the threat of a straight reauthorization is just a tactic to push through those tweaks; this makes the most sense because USA F-ReDux actually gives the IC things they want and need that they don’t currently have
  • There is something the government is doing — a bulk IP program, for example — that Mitch and Burr plan to provide Congressional sanction for even while basically adopting USA F-ReDux as a limit on Section 215 (but not other authorities); the problem with this plan is that secret briefings like the Administration offered the Senate, but not the House, last night don’t seem to meet the terms of ratification described by the Second Circuit
  • The Second Circuit decision threatens another program, such as SPCMA (one basis for Internet chaining involving US persons right now), that the Senate believes it needs to authorize explicitly and that’s what the straight reauthorization is about
  • [Update] I’m reminded by Harley Geiger that Mitch might just be playing to let 215 sunset so he can create a panic that will let him push through a worse bill. That’s possible, but the last time such an atmosphere of panic reigned, after Congress failed to replace Protect American Act in 2008, it worked to reformers’ advantage, to the extent that any cosmetic reform can be claimed to be a win.

I think — though am not certain — that it’s the first bullet, though Burr’s so-called misstatement the other day makes me wonder. If so Mitch’s procedural move is likely to consist of starting with his straight reauthorization but permitting amendments, Patrick Leahy introducing USA F-ReDux as an amendment, Ron Wyden and Rand Paul unsuccessfully pushing some amendments to improve the bill, and Richard Burr adding tweaks to USA F-ReDux that will make it worse. After that, it’s not clear how the House will respond.

Which brings me to what I think Burr would want to add.

As I’ve said before, I think hawks in the Senate would like to have data mandates, rather than the data handshake that Dianne Feinstein keeps talking about. While last year bill supporters — including corporate backers — suggested that would kill the bill, I wonder whether everyone has grown inured to the idea of data retention, given that they’ve been silent about the data handshake since November.

I also suspect the IC would like to extend the CDR authority to non-terrorism functions, even including drug targets (because they probably were already using it as such).

The Senate may try to tweak the Specific Selection Term language to broaden it, but it’s already very very permissive.

I’m also wondering if the Senate will introduce language undermining the limiting language HJC put in its report.

Those are the predictable additions Burr might want. There are surely a slew more (and there will be very little time to review it to figure out the intent behind what they add).

The two big questions there are 1) are any of those things significant enough to get the House to kill it if and when it gets the bill back and 2) will the House get that chance at all?

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