The Senate was briefly in session this week where it took cloture votes on two note worthy bills. One to approve the Keystone XL pipeline and the second called the USA Freedom Act, would vaguely reform the NSA by limiting their ability to spy on Americans. Both bill failed.
Regardless of the denials by the Democratic leadership, the Keystone bill was brought to a vote in a vain attempt to save Louisiana’s Senator Mary Landrieu’s seat. While the Republicans would have bee gleeful of it had passed, the bill failed to reach cloture by one vote. The incoming leadership has vowed to bring it to the floor one more time.
The USA Freedom Act was another deal. Since the the likelihood this bill would never see the light of day in the next session, it was thought there were enough votes for cloture. There weren’t. It was roundly shouted down by Republicans because the Islamic state is coming to kill us.
NSA Reform Bill Dies As Republicans Hype Threats From Islamic State
Dan Froomkin, The Intercept
Supporters of the USA Freedom Act, including privacy groups and technology companies, had considered it an essential first step toward ending the NSA’s overreach. But Senate Minority Leader Mitch McConnell set the tone for the day in the morning, actively encouraging his caucus to block the measure, citing concerns that it would hurt the fight against such groups as the Islamic State. Republicans also took their cues from an op-ed in the Wall Street Journal, in which former CIA and NSA director Michael Hayden and former attorney general Michael Mukasey described the bill as NSA Reform That Only ISIS Could Love.
With Republicans taking control of the Senate in January, a vote during the current lame-duck session was widely considered the bill’s last, best shot.
The USA Freedom Act would have ended the government’s bulk collection of domestic phone records, forcing officials to make specific requests to phone companies. It would also have ended the law-enforcement monopoly on arguments before the secretive surveillance court by creating a role for a special advocate. And it would have required that significant court opinions be made public.
Writing for The Guardian, Trevor Timm thinks that the Republican may have shot themselves in the foot by opposing the bill:
But the Republicans – and NSA supporters everywhere – may have made a mistake that will come back to haunt them. They killed a measure that many reformers were holding their nose while supporting, and six month from now – by the middle of 2015 – they may have several even bigger fights on their hands. [..]
(T)he legislation Republicans just blocked also would have effectively shut down several promising lawsuits against the NSA in federal court and another case where National Security Letters were already ruled unconstitutional.
Now many of those cases, already in the appeals stage, may be decided within the next six months, and if the oral arguments are any indication, the US government may be in trouble. Indeed, the conservative justices may be willing to do more for your privacy than conservative lawmakers, as Judge Richard Leon proved last year when he ruled that the NSA’s phone surveillance program is likely unconstitutional.
But here’s the real reason the the USA Freedom Act’s failure could backfire on its biggest supporters: As I’ve mentioned before, Section 215 of the USA Patriot Act – the law that was re-interpreted in secret to allow for mass phone metadata surveillance in the first place – comes up for renewal next summer. It has to be reauthorized before June, or it will disappear completely.
And even though the Republicans will be in control next year, they won’t be able to pull the same stunts they did on Tuesday. Everyone knows getting “no” votes is a lot easier than getting a “yes”. And this time they’ll need 60 “yes” votes, plus the support of the House of Representatives, where we know already there are likely enough votes to kill an extension of the Patriot Act.
At the New York Times, Charles Savage found a little noticed provision in the Patriot Act that grandfathered on going investigations even if section 215 sunsets:
The law says that Section 215, along with another section of the Patriot Act, expires on “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”
Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.
“It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”
Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.
The exception is obscure because it was recorded as note accompanying Section 215; while still law, it does not receive its own listing in the United States Code. It was created by the original Patriot Act and was explicitly restated in a 2006 reauthorization bill, and then quietly carried forward in 2010 and in 2011.
While over at The Intercept, journalist and author, Glenn Greenwald found watching the Senate debate was “like watching a repeat of some hideously shallow TV show”. As he noted, congress is irrelevant on mass surveillance and points out what really matters:
The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSA’s powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court-the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy. [..]
In pretty much every interview I’ve done over the last year, I’ve been asked why there haven’t been significant changes from all the disclosures. I vehemently disagree with the premise of the question, which equates “U.S. legislative changes” with “meaningful changes.” But it has been clear from the start that U.S. legislation is not going to impose meaningful limitations on the NSA’s powers of mass surveillance, at least not fundamentally. Those limitations are going to come from-are now coming from -very different places:
1) Individuals refusing to use internet services that compromise their privacy. The FBI and other U.S. government agencies, as well as the U.K. Government, are apoplectic over new products from Google and Apple that are embedded with strong encryption, precisely because they know that such protections, while far from perfect, are serious impediments to their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to suggest, that one believes that Silicon Valley companies care in the slightest about people’s privacy rights and civil liberties. [..]
2) Other countries taking action against U.S. hegemony over the internet. Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S. domination of the internet. [..]
3) U.S. court proceedings. A U.S. federal judge already ruled that the NSA’s domestic bulk collection program likely violates the 4th Amendment, and in doing so, obliterated many of the government’s underlying justifications. Multiple cases are now on appeal, almost certainly headed to the Supreme Court. None of this was possible in the absence of Snowden disclosures. [..]
4) Greater individual demand for, and use of, encryption. In the immediate aftermath of the first Snowden reports, I was contacted by countless leading national security reporters in the U.S., who work with the largest media outlets, seeking an interview with Snowden. But there was a critical problem: despite working every day on highly sensitive matters, none of them knew anything about basic encryption methods, nor did their IT departments. Just a few short months later, well over 50 percent of the journalists who emailed me did so under the protection of PGP encryption. Today, if any journalist emails me without encryption, they do so apologetically and with embarrassment. [..]
The changes from the Snowden disclosures are found far from the Kabuki theater of the D.C. political class, and they are unquestionably significant. That does not mean the battle is inevitably won: The U.S. remains the most powerful government on earth, has all sorts of ways to continue to induce the complicity of big Silicon Valley firms, and is not going to cede dominion over the internet easily. But the battle is underway and the forces of reform are formidable-not because of anything the U.S. congress is doing, but despite it.
The USA Freedom Act would have made little difference to the unlawful NSA. What matters now is what the courts and we do to preserve our rights.