Tag Archive: Patrick Leahy

Jul 30 2014

USA Freedom Act Still Won’t Protect Americans’ Liberties

Senator Patrick Leahy (D-NH) introduced the version of the USA Freedom Act on Tuesday.

Leahy’s bill, like the House’s, would still provide the NSA with access to enormous amounts of American phone data. Though it would require a judge to issue an order to telecos for “call detail records” based on a “reasonable, articulable suspicion” of association with terrorism or a foreign power, the NSA will be able to use that single order to obtain the “call detail records” of a suspicious entity, as well as those of entities in “direct connection” with it and entities in connection with those.

While that would permit the NSA to yield thousands of records off of a single court order, on a daily basis for six months, the NSA and the bill’s architects contend that it bans “bulk collection.”

Leahy’s bill would go further than the House version in narrowing the critical definition of “specific selection term,” a foundational aspect of the bill defining what the government can collect. The House definition is a “term specifically identifying a person, entity, account, address, or device,” which privacy groups have lambasted as unreasonably broad.

Seeking to plug that loophole, Leahy would prevent the NSA or the FBI from accessing a service provider’s entire clientele or a wholesale “city, state, zip code, or area code.”

Although the Leahy bill has the support of several civil libertarian groups and major tech firms like Facebook and Google, it does not revive some privacy proposals that those organizations considered crucial but the intelligence agencies and their advocates in Congress stripped from the House measure.

There are still some really big loopholes, as noted by emptywheel’s Marcy Wheeler:

Leahy’s bill retains the language from USA Freedumber on contact chaining, which reads,

   (iii) provide that the Government may require the prompt production of call detail records-

   (I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

   (II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

Now, I have no idea what this language means, and no one I’ve talked to outside of the intelligence committees does either. It might just mean they will do the same contact chaining they do now, but if it does, why adopt this obscure language? It may just mean they will correlate identities, and do contact chaining off all the burner phones their algorithms say are the same people, but nothing more, but if so, isn’t there clearer language to indicate that (and limit it to that)? [..]

I remain concerned, too, that such obscure language would permit the contact chaining on phone books and calendars, both things we know NSA obtains overseas, both things NSA might have access to through their newly immunized telecom partners.

In addition, Leahy’s bill keeps USA Freedumber’s retention language tied to Foreign Intelligence purpose, allowing the NSA to keep all records that might have a foreign intelligence purpose.

That’s just for starters. She is also concerned about the vague language will still be used to allow bulk collection. She doesn’t think it’s strong enough

The question is whether this “agency protocol” – what Chief Justice John Roberts said was not enough to protect Americans’ privacy – is sufficient to protect Americans’ privacy.

I don’t think it is.

First, it doesn’t specify how long the NSA and FBI and CIA can keep and sort through these corporate records (or what methods it can use to do so, which may themselves be very invasive).

It also permits the retention of data that gets pretty attenuated from actual targets of investigation: agents of foreign powers that might have information on subjects of investigation and people “in contact with or known to” suspected agents associated with a subject of an investigation.

Known to?!?! Hell, Barack Obama is known to all those people. Is it okay to keep his data under these procedures?

Also remember that the government has secretly redefined “threat of death or serious bodily harm” to include “threats to property,” which could be Intellectual Property.

So CIA could (at least under this law – again, we have no idea what the actual FISC orders this is based off of) keep 5 years of Western Union money transfer data until it has contact chained 3 degrees out from the subject of an investigation or any new subjects of investigation it has identified in the interim.

In other words, probably no different and potentially more lenient than what it does now.

And one more thing from Marcy: Leahy’s version still will allow the FBI uncounted use of backdoor searches:

I strongly believe this bill may expand the universe of US persons who will be thrown into the corporate store indefinitely, to be subjected to the full brunt of NSA’s analytical might.

But that’s not the part of the bill that disturbs me the most. It’s this language:

   ‘(3) FEDERAL BUREAU OF INVESTIGATION.-

   Subparagraphs (B)(iv), (B)(v), (D)(iii), (E)(iii), and (E)(iv) of paragraph (1) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.

The language refers, in part,  to requirements that the government report to Congress [..]

These are back door searches on US person identifiers of Section 702 collected data – both content (iv) and metadata (v).

In other words, after having required the government to report how many back door searches of US person data it conducts, the bill then exempts the FBI.

The FBI – the one agency whose use of such data can actually result in a prosecution of the US person in question.

We already know the government has not provided all defendants caught using 702 data notice. And yet, having recognized the need to start counting how many Americans get caught in back door searches, Patrick Leahy has decided to exempt the agency that uses back door searches the most.

And if they’re not giving defendants notice (and they’re not), then this is an illegal use of Section 702.

While the Senate version may be a good enough reason for some civil libertarians, privacy groups and technology firms to back, it still falls far short of what is needed to protect Americans’ constitutional rights and privacy.

Nov 22 2013

Congressional Game of Chicken: Filibuster Has Been Mortally Wounded

Filibuster has suffered a mortal wound. In an historic vote, the Senate drastically change the game by eliminating the need for 60 votes to confirm a presidential nominee to executive and judiciary, ending at least some of the obstruction by Republicans that has hampered President Barack Obama’s administration. The final straw that changed the mind of Senate Majority Leader Harry Reid (D-VT) was the filibuster of the last three court appointment to the U.S. Court of Appeals for the District of Columbia Circuit, regarded as second only to the Supreme Court in influence, it plays a central role in upholding or knocking down federal regulations. The court was evenly divided between Democratic and Republican appointed judges with three vacancies that the Republicans were determined to keep vacant, along with the other 90 court vacancies, so long as Barack Obama was in the Oval Office. Thinking that Reid would never go “nuclear” and lacked the votes, the Republicans overplayed their hand angering the Democratic holdouts against limiting the filibuster. The changes will apply to all 1,183 executive branch nominations that require Senate confirmation, not just cabinet positions but hundreds of high- and mid-level federal agency jobs and government board seats. Needless to say, the Republicans are angry, as this also puts into play the possibility of ending filibuster altogether.

With filibuster gone, there is still an obstacle for judicial appointments known as the “blue slip rule.” As Kevin Drum explains at Mother Jones:

One of the Senate’s oldest traditions is that judicial nominees require approval from their home-state senators before they can move forward, and that approval comes in the form of a blue slip returned to the chairman of the Judiciary Committee. [..]

   Pre-1994: Generally speaking, only one blue-slip is needed for a nominee to move forward.

   1995-2000: Republicans take control of Senate and decide that two blue slips should be required. This makes it easier to kill Clinton nominees.

   2001: George Bush is elected president. Republicans no longer want to make it easy to block nominees, so they return to the rule that only one blue-slip is required to move forward.

   2001-02: Jim Jeffords defects, putting Democrats back in control of the Senate. They return to the rule requiring two blue-slips to proceed.

   2003: Republicans win back control of the Senate. They up the ante by effectively moving to a zero blue-slip rule: they’ll allow hearings on nominees even if no senators return blue-slips. Democrats threaten to filibuster over this rather obvious abuse of power and insist on a return to the two blue-slip rule.

   2007-Present: Democrats win control of the Senate and Pat Leahy of Vermont becomes chairman of the Judiciary Committe. Leahy is a traditionalist who maintains the two blue-slip rule.

By maintaining this rule, Sen. Leahy hurts Obama’s nominees in red states  where aggressive Republican refuse to approve even moderate judges.

As Chairman of this Committee, I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators. That has meant that we are not able to proceed on current nominees from Arizona, Georgia, Nevada, and Louisiana. I even stopped proceedings on a circuit court nominee from Kansas when the Kansas Republican Senators reversed themselves and withdrew their support for the nominee. I had to deny the Majority Leader’s request to push a Nevada nominee through Committee because she did not have the support of Nevada’s Republican Senator. I will put my record of consistent fairness up against that of any Judiciary chairman.

Perhaps this was why, even as a traditionalist, Sen. Leahy voted to change the filibuster rule.

On MSNBC’s All In, host Chris Hayes discusses the new rules and the history of filibuster with Senators Tom Udall (D-NM) and Tim Kaine (D-VA); former spokesman for Sen. Reid Jim Manley; and former Senate Parliamentarian Alan Frumin.

Nov 13 2013

Congressional Game of Chicken: Filibuster Reform Discussed Again

The side show over filibuster and Republican obstruction of President Barack Obama’s appointments to cabinet positions and to vacant seats on the bench, especially to the DC Circuit which hears some of the most important constitutional cases, has once again begun amidst the main event of the failure the roll out of the ACA. Senate Republicans filibustered a judicial nomination to the DC Circuit Court

President Obama’s latest choice to fill one of the vacancies on a powerful appeals court went down in a filibuster on Tuesday as Senate Republicans blocked another White House nominee – the third in two weeks – and deepened a growing conflict with Democrats over presidential appointments.

By a vote of 56 to 41, the nomination of Cornelia T. L. Pillard, a Georgetown law professor, fell short of clearing the necessary 60-vote threshold. [..]

The disagreements carried over onto the Senate floor on Tuesday, as Democrats accused Republicans of blocking a perfectly qualified woman for political purposes, while Republicans said Democrats were desperately looking for a wedge issue.

Looming underneath their disagreements about Ms. Pillard is the likelihood – which appeared to grow considerably on Tuesday – that the fight will escalate and result in a change to the Senate rules to limit the minority party’s ability to filibuster judicial nominees.

Senator Richard J. Durbin, the chamber’s No. 2 Democrat, warned Republicans that they were pushing the Senate dangerously close to a tipping point.

The Republicans attempt to reframe the argument saying that the DC Circuit isn’t as busy as other courts such as the 2nd Circuit in New York. The court handles most of the legal challenges to federal agencies, putting it at the center of fights over regulations – including the healthcare reform law and Obama’s push to regulate greenhouse gas emissions from power plants. After Tuesday’s vote, Senator Charles Grassley (R-IA) said, “We’re going by the standards that Democrats set in 2006.”

Their strategy: lock in the current 4-4 court by eliminating the empty seats and redistributing them to other circuits, because some other courts (ones that aren’t the first recourse for people suing Congress over legislation) have more cases. “In 2012, there were 512 ‘administrative appeals’ filed in D.C.,” said Grassley on Tuesday. “In the 2nd Circuit, there were 1,493. Stated differently, in D.C. there were only 64 administrative appeals per active judge. The 2nd Circuit has nearly twice as many with 115.”

That framing, which seemed like a stretch-no one also denies that the D.C. Circuit gets more pivotal cases than the 2nd Circuit-has since been universally adopted by the right. Ohio Sen. Rob Portman, the sort of Republican whom Democrats like to cut deals with, has endorsed Grassley’s Court Efficiency Act because it would “bring a reasonable end to the destructive partisan fights to which both parties have contributed.” A third-party ad hitting Arkansas Sen. Mark Pryor (a Gang of 14 member) right now accuses him of trying to “pack a key court with liberal judges” because he doesn’t want to eliminate the three open seats. Grassley points out that Democrats blocked a 2006 Bush nominee on the grounds that the seat didn’t need to be filled-what more evidence does he need?

“We’re going by the standards that Democrats set in 2006,” said Grassley after Tuesday’s vote. “They said that we didn’t need any more judges. And that’s exactly what I’m telling ’em, what they said! We’re just doing what they said. They set the standard and they can’t say we’re doing this because we’ve got a Democratic president, because I got a judge removed, the 12th one removed, when we had a Republican president.””

The problem with Grassley’s argument is that in 2006, the Republican’s got what they wanted. By threatening the “nuclear option,” the Democrats backed down and three very conservative, ideologues were appointed to the DC circuit. Funny how the Republicans can now support that which they opposed seven years ago.

Support for filibuster reform picked up a new supporter after the vote, Senate Judiciary Committee Chair Patrick Leahy (D-VT).

“If the Republican caucus continues to abuse the filibuster rule and obstruct the president’s fine nominees to the D.C. Circuit, then I believe … a rules change should be in order,” Leahy said on the Senate floor, just before Republicans blocked Nina Pillard’s confirmation to the D.C. Circuit Court of Appeals.

“That is not a change that I’ve wanted to see happen,” he continued. “But if Republican senators are going to hold nominees hostage without consideration of a nominee’s individual merits, drastic measures may be warranted.”

Leahy, laughing at the Republican excuse that each judge costs $1 million per year, stated the Republican government shut down cost billions of dollars that would have funded those appointments for years.

Contributing editor at the National Journal and resident scholar at the conservative American Enterprise Institute, Norm Ornstein laid out his reasons why it was time to stop the filibuster madness

Mel Watt was nominated by President Obama to head the Federal Housing Finance Agency-and was blocked by a Republican filibuster. The rationale that Watt was not qualified for the position was flimsy at best. If individual senators wanted to vote against him, they certainly have the right to do so on any basis. But to deny the president his choice for this post, a veteran and moderate lawmaker with sterling credentials and moral character, via filibuster, is nothing short of outrageous. Only two Republicans in the Senate, Rob Portman and Richard Burr, Watt’s colleague from North Carolina, voted for cloture.

Watt was not the only victim of a drive-by filibuster; so was Patricia Millett, a superbly qualified and mainstream nominee for the D.C. Circuit Court of Appeals. Only two Republicans supported cloture here; Lisa Murkowski and Susan Collins, and three others voted “present” (which was no help, since anything but a vote for cloture is meaningless with a rule requiring 60 votes, period, to end debate). The rationale here was even more flimsy than that used against Watt, namely that Obama is trying to “pack” the D.C. Circuit. FDR tried to “pack” the Supreme Court by adding seats to the existing Court. Barack Obama is moving to fill long-standing vacancies on the D.C. Circuit. On this Circuit, thanks to a slew of retired judges appointed by presidents long gone, conservatives have an edge that Mitch McConnell is determined to keep no matter what.

When Harry Reid and McConnell reached a deal on filibusters in January, it was clear that a key component of that deal was that Republicans in the Senate would give due deference to a newly reelected president in his executive nominations, and would only oppose judicial nominations for courts of appeals under “extraordinary circumstances,” which clearly means judges without clear qualifications or experience, or extreme ideologies. No one could accuse Millett of either of those characteristics. This is all about denying a president the right to pick judges to fill existing vacancies. Two more nominees for the D.C. Circuit are coming up soon, the real test of whether Republicans will continue to flout the January agreement and threaten fundamental comity in the Senate. [..]

If the other two D.C. Circuit nominees are filibustered and blocked, I would support Harry Reid’s move to change the rules now, to move from a 60-vote requirement to stop debate and vote to a 40-vote requirement to continue debate. The argument that if he does so, Republicans will do the same thing when they take the White House and Senate is a bad one: Can anyone doubt that McConnell would blow up the filibuster rule in a nanosecond if he had the ability to fill all courts with radical conservatives like Janice Rogers Brown for decades to come? I hope it does not come to this-and that the problem solvers in the Senate keep their titles, preserve their institution, and stop the filibuster madness.

But does Senate Majority Leader Harry Reid have the votes? Even with Leahy’s support this time, there may not be the 51 votes needed.

“If we can’t move ahead based on how the procedures have been perverted, we need to fix the procedures. That’s the deal,” said Larry Cohen, president of Communications Workers of America, which is leading a coalition lobbying for changes to filibuster rules.

Cohen said Reid “is willing” to change the rules but “the question is whether the leader can get 50 Democrats, not 49 or 48, to sustain that motion.”

A senior Democratic aide said Reid has not conducted a recent whip count and questioned how outside groups or rank-and-file Democratic senators would know the vote count if the leader attempted a rule change immediately.

“Any declarative statements at this point are extremely premature,” said the senior aide.

A cloture vote on the nomination on Robert Wilkins, a third nominee to the court, will be held in the near future. The Republicans have already indicated that his  nomination will also be filibustered. We’ll see if reform of this antiquated, misused rule gains more support after that.  

Oct 25 2011

It’s The End Of The Internet As We Know It (And Orrin Hatch Feels Fine)

Cross-posted to CandyBullets, MyLeftWing, firefly-dreaming and Docudharma

If you follow my website (CandyBullets) you’re probably well aware of the threat posed by the “IP PROTECT ACT” known more commonly as the Internet Blacklist bill. You’re may also be aware that this bill was recently halted in the Senate by the true Democrat Senator Ron Wyden (D-OR) who prevented the bill from coming up for a vote in the Senate (where it would doubtless pass) however a House version will be introduced this week with help of Representative Bob Goodlatte (R-VA) — probably tomorrow. If you’re not familiar with this bill then I suggest you become acquainted (the full text of the bill may be found here.)

It was once said about the much over analyzed movie Last Tango In Paris that it was a simple movie at heart: a movie about real estate, two people who want an apartment and will do anything to get it. In a similar vane Protect IP is also simple: it is merely the latest in a long line of slovenly hand-outs to corporations at the expense of your civil rights; it would give the Government broad, censorious new powers to shut down any site merely accused of Copyright Infringement and fuck the concept of innocent until proven guilty, yes, the PROTECT IP ACT authorizes an alleged “rights holder” who decides to claim to be the victim of the “infringement” to bring an action against the owner, registrant, or Internet site “dedicated to infringement”, whether domestic or foreign, and seek a court order against the domain name registrant, owner, or the domain name. The DOJ version however can apply against ISPs, search engines, ad providers and payment processors.

Of course corporate America, what were the founding fathers thinking? Of course you must be given permission to shut down YouTube and Facebook so that no one can potentially infringe upon your Copyrights. I recall Franklin making a remark about trading liberty for safety. This bill would criminalize YouTube, Twitter, Facebook, Myspace, Google+, Reddit, Digg, not least this site you’re reading this at. Any other site that uses user generated content. But you know, I’m glad to know that when conservative Orrin Hatch (R-UT) and nominal liberal Patrick Leahy’s (D-VT) delightfully bipartisan fascism was first shot down when they coauthored COICA (The Combating Online Infringement and Counterfeits Act) these two adorable little corporate shills decided to take our criticisms into account. This time they remembered to ban criticism. Their new “PROTECT IP ACT” retains the blacklist of websites our “Democratic” Govenrment doesn’t wanting us looking at but ads a new one that we’ll just have to take a moment to marvel at: It bans people from even being able to discuss blacklisted sites. Under the new bill, anyone “referring or linking” to a blacklisted site will be Blacklisted themselves.

Yes this “bunker-buster bluster bomb” (h/t Ron Wyden) far past simply requiring these other service providers from blocking service, this new law will require search engines to censor sites out of their index. Now please understand, “infringing websites” is in no way defined in a reasonable way — the bill is not being specific about what constitutes an infringing web sites. For example if WikiLeaks or any similar organization were merely accused of distributing copyrighted content, U.S. search engines could be served a court order to BLOCK search results pointing to Wikileaks. Requiring search engines to remove links to an entire website altogether due to an infringing page raises alarming free speech concerns regarding lawful content hosted elsewhere on the site. The fact that an injunction can be issued without notifying the allegedly, supposedly infringing website essentially destroys the entire legal “presumption of innocence”, there is no innocent until proven guilty with this bill.