Bizarre: Democrats In Congress Agree To Give Trump More Of The Spying Powers He Complains Were Abused Against Him

from the someone-explain dept

If ever there were a time to end Constitutionally questionable FISA surveillance powers it should be now. Democrats have been, quite rightly, concerned about an out of control Trump administration, abusing the powers of government to target his enemies and critics. Republicans have been screaming from the heavens, quite rightly, about the FBI's abuse of the FISA process to conduct surveillance on members of the Trump Campaign. And all this is coming at a time when the crown jewel of the program -- the phone metadata surveillance -- has been shown to have been a huge, wasteful mess that has been effectively useless.

And it's up for renewal. So just kill it.

But, no, that's not how Congress works. Instead, earlier this week, the House worked out a bipartisan "compromise" that lets them each claim victory -- when all it really does is reauthorize powerful, frequently abused, Constitutionally-questionable surveillance powers -- the very same powers that the Trump administration has been insisting are being abused by "the deep state" against the President himself. As Marcy Wheeler explains, the final bill involved Rep. Adam Schiff -- who ran the impeachment effort against Trump, pointing out how incompetent and dangerous Trump can be -- watering down an earlier proposal to make sure that Trump has much greater surveillance powers with less oversight.

Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.

She goes on to detail the rather sneaky language in the bill that seems designed deliberately to give William Barr could use the program to hide some pretty scary shit:

Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it “would harm to the national security of the United States.” Outrageously, they don’t even have to convince a judge that such harm is real. A court “or other authority of the United States” could agree with such a finding. The Attorney General is “an authority of the United States.” So Attorney General Bill Barr — the father of the first subpoena based dragnet — could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that’s the case.

This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.

I'm sure that won't be abused at all...

Of course, Bill Barr is thrilled with this outcome:

"I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people.

I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms.

It is of the utmost important that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward. This legislation deserves broad bi-partisan support."

Because none of this makes sense any more, the bill has both bipartisan support -- and bipartisan opposition, with the opposition coming from those who tend to actually fight to protect our civil liberties from either party. CNN has some of the details:

But the agreement has also come under fire from lawmakers in both parties, criticized by both liberals and libertarian-leaning Republicans for not going far enough to address privacy concerns.

In a sign of the odd alliances over the vote, both the leader of the conservative House Freedom Caucus, Rep. Andy Biggs, and the co-chairs of the liberal Congressional Progressive Caucus, Reps. Pramila Jayapal and Mark Pocan, opposed the measure.

"It's not real reform," said Rep. Zoe Lofgren of California, a Democratic member of the House Judiciary Committee who took part in the negotiations with Democratic leaders.

On the Senate side, Senators Rand Paul, Mike Lee, and Ron Wyden have all complained about the bill as well -- with threats to block and requests for Trump to veto the bill.

And, of course, privacy advocates are reasonably concerned about this as well. The ACLU has asked Congress to vote against the bill:

Over the last several years, it has become abundantly clear that many of our surveillance laws are broken. The Foreign Intelligence Surveillance Court is not equipped to protect Americans’ rights -–with an Inspector General report finding a litany of errors in the government’s applications to the court to surveil Trump campaign advisor Carter Page. During a House hearing last month, FBI Director Christopher Wray agreed with the characterization of at least a portion of the surveillance of Carter Page as illegal. Also last month, the FISC court itself accepted the Justice Department’s position that at least two of the surveillance applications for spying on Page were “invalid” and the court took extraordinary steps to order the government to try to remedy its wrongdoing and avoid a repeat. Despite the secrecy around FISA proceedings, the Page episode offers a window into the abuses that predictably follow from giving the government extraordinary powers with minimal checks and no meaningful due process.

At the same time, Section 215, which is one of the Patriot Act provisions set to expire on March 15th, has been used to engage in large-scale collection of Americans’ information, and the call detail record program operated under the authority has been suspended following compliance violations that resulted in unlawful collection of information.

Despite this record, disappointingly, the reforms contained in H.R. 6172 are minimal –in many cases merely representing a codification of the status quo. In addition, the bill contains provisions that would be a step back from even our flawed current law, including an additional criminal penalty. Given this, we believe that a short six week extension of the expiring

One hopes the criticism of the bill -- and the bizarre situation of Trump possibly signing a bill that continues the program he's been railing against (while pretending to limit it) -- leads this bill to die.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: adam schiff, carter page, fisa, fisa renewal, house, mass surveillance, section 215, senate, surveillance, trump administration


Reader Comments

Subscribe: RSS

View by: Thread


  • identicon
    Anonymous Coward, 12 Mar 2020 @ 10:08am

    Barr is a menace to civil society.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 12 Mar 2020 @ 10:13am

    and i was shouted down the other day for daring to say how corrupt our government is! if this isn't the same or as bad an example, what the hell is? the USA is fast becoming the sort of country that we continuously condemn and have wars with, but no one admits it!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2020 @ 11:24am

      Re:

      No one?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Mar 2020 @ 5:30am

      Re:

      Uh, what? That statement is ridiculous. However, i don't know what you said the other day, so there may be a reason you were "shouted down". Obviously not for the generic point that there are problems with government.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2020 @ 10:47am

    the bizarre situation of Trump possibly signing a bill that continues the program he's been railing against

    It's not at all bizarre, sadly, for Trump. The words that he says don't mean anything and never did.

    reply to this | link to this | view in chronology ]

  • icon
    kag (profile), 12 Mar 2020 @ 11:16am

    While there are many examples of the Obama Administration abusing the powers of government (IRS, FISA, NSA, AP/Rosen), specifically, how did Trump use the government to target people? And no, filing lawsuits and complaining on twitter don't count. For someone who claims this site to be non-partisan, the language used certainly seems partisan.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2020 @ 4:02pm

      Re:

      This site is at least as anti-Obama as it is anti-Trump. Stupid is as stupid does and this site calls it out regardless of who demonstrates it. It has nothing to do with partisanship.

      reply to this | link to this | view in chronology ]

      • icon
        kag (profile), 13 Mar 2020 @ 5:45am

        Re: Re:

        I agree, Obama was called out. But it was done so in a matter of fact way: "Holder claiming that the statute effectively "forced" him into declaring Rosen a co-conspirator is ridiculous. The statute compels him not to seize Rosen's records. Holder is admitting that the DOJ lied to the court here and trying to blame the statute for that lie. That's astounding."

        Compare it to the rhetoric used against Trump: "concerned about an out of control Trump administration, abusing the powers of government to target his enemies and critics" and " it appears that the Republican party is quickly positioning itself as the party of chilling effects and silencing a free press. This is shameful behavior and should be called out as such. "

        reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 13 Mar 2020 @ 6:25am

      Re:

      Failure to kiss Trump's rump is emphatically not partisan. Stop it!

      reply to this | link to this | view in chronology ]

      • identicon
        Idiot, 14 Mar 2020 @ 12:47pm

        Re: Re:

        Why always the partisan babble, instead of thoughtful, substantive commentary?

        Oh, never mind--its you, Wendyy Cockcroft.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2020 @ 11:17am

    Governments rarely if ever relinquish a power once granted. Don't expect any of this to go away.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2020 @ 11:44am

    Controlled opposition

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 12 Mar 2020 @ 12:18pm

    Another of many similar examples

    I would suggest that presently the US. has a two party system in name only, and that the reality is more like a single governing class with two fairly similar factions. These two factions of the government strive mightily to differentiate themselves on just a few key, “hot-button” issues. These are issues that certain voters are extremely passionate about, often to the point of becoming single-issue zealots. For the past 50 or so years the most significant of these issues have been guns, drugs, and abortion. Recently, particularly since Sept. 11, 2001, immigration policy has also become prominent among these ‘differentiating’ issues.

    But despite their best efforts at differentiation, the two factions of the government are strikingly similar. Both factions are increasingly authoritarian. Both factions have continuously expanded the role, and cost, of government in our society. Both factions have also continuously eroded the rights and responsibilities of individual citizens. Both factions view the Constitution as not merely a quaint anachronism, but as an impediment to their power, an obstacle to be overcome by whatever means necessary, or simply ignored. Each faction has always pointed to the other as the culpable party, when in fact they have both been acting more in concert than at cross purposes.

    I am reminded of the old English Punch and Judy puppet shows, where a single puppeteer, hidden behind the small stage, has the Punch puppet on one hand, and the Judy puppet on the other. The common theme in the Punch and Judy shows is extreme animosity and physical violence. But, of course, the puppeteer emerges after every show completely unharmed, but having collected a significant amount of money from the audience.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 12 Mar 2020 @ 12:29pm

      Re: Another of many similar examples

      I mean, the thing about arguing that "both sides are the same except for a couple of differences on hot-button issues" is that the hot-button issues in question include whether women, minorities, and LGBTQ people are entitled to basic human rights.

      There are a lot of similarities between the two parties that I really don't care for. But the differences are not trivial.

      reply to this | link to this | view in chronology ]

      • icon
        Upstream (profile), 12 Mar 2020 @ 1:18pm

        Re: Re: Another of many similar examples

        I did not mean to suggest that the differences were in any way trivial. They are most decidedly not trivial! I was trying to indicate that the two factions differ only in relatively few specifics, (and even then they often differ only in degree, as opposed to binary opposition) but are indistinguishable in larger generalities.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 13 Mar 2020 @ 7:19am

        Re: Re: Another of many similar examples

        "There are a lot of similarities between the two parties that I really don't care for. But the differences are not trivial."

        They're really not, no...But those differences are still fairly minor. In literally ANY form of legislation which will take power from the people and further entrench the current incumbent crop of politicians, both parties will miraculously emerge with sterling examples of bipartisan cooperation.

        This isn't exactly restricted to the US either and is one of the main reasons as to why most other nations tend to end up with numerous political parties so generally opposed to one another it's difficult for them to come together over any issue.

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 13 Mar 2020 @ 9:59am

          Re: Re: Re: Another of many similar examples

          They're really not, no...But those differences are still fairly minor.

          The difference between putting kids in cages and not putting kids in cages is not minor. The difference between providing healthcare to more people and providing healthcare to fewer people is not minor. The difference between allowing same-sex couples to marry and not allowing same-sex couples to marry is not minor. The difference between trying to increase minority voter turnout and trying to decrease minority voter turnout is not minor.

          In literally ANY form of legislation which will take power from the people and further entrench the current incumbent crop of politicians, both parties will miraculously emerge with sterling examples of bipartisan cooperation.

          That is probably broadly true (though I don't know if "literally-all-caps-ANY" is accurate; I'm sure there are a nonzero number of exceptions). But it doesn't mean that "those differences" between the parties -- the specific ones I mentioned in my post that you were responding to, viz "whether women, minorities, and LGBTQ people are entitled to basic human rights" -- are minor. They fucking-well are not.

          reply to this | link to this | view in chronology ]

          • identicon
            Hollow Robot Thad, 14 Mar 2020 @ 1:04pm

            Re: Re: Re: Re: Another of many similar examples

            STFU.

            Where were you partisan fucks when the Dems were voting for policies and federal funding to put AMERICAN children in restraints, on medical "evaluations" at ten years old, and pseudo-medical facilities, which used restraints on them?

            Yeah- if you guessed "Thad is a globalist-like partisan turd" you win.

            Its only an issue once it affects the "world" population, right?

            But I recall a few decades of American born kids locked up, and forced to take psychiatric drugs, and not a peep out of you, faux-liberal.

            Your inner logic aint working with your outer logic, that's for sure.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2020 @ 2:57pm

      Re: Another of many similar examples

      "I would suggest that presently the US. has a two party system in name only, and that the reality is more like a single governing class with two fairly similar factions"

      Good cop / Bad cop

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Mar 2020 @ 8:02am

      Re: Another of many similar examples

      Really it could be a N-party system and there would still be the same problems. If the incentives are (mis)aligned to the governing class the same behavior will essentially always emerge as the winning strategy perpetuates itself the best - regardless of the horrific outcomes.

      It is a 'common cause' issue like how you will seldom see any legislature vote to decrease their pay or hold themselves more accountable. It isn't that the politics are the same but that they do not affect aspects with clear conflicts of interest.

      reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 12 Mar 2020 @ 1:09pm

    Questionable for whom?

    Remember, it is only Constitutionally questionable if you have standing. Since it is a secret, though, nobody who has standing know they have standing.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 12 Mar 2020 @ 2:57pm

    Playing the long game, and giving away true positions in the act

    I suspect that while those in favor of the fake reform claim that they are against abuses of the law or how it's used what they really object to is the other party making use of those powers rather than their own. If preserving those powers for their own to use later means letting the other party use them now then oh well, that's a price they're willing to (have the public) pay.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Mar 2020 @ 8:15am

      Re: Playing the long game, and giving away true positions in the

      Yeah, this is not so bizarre if you assume (as I think the Democratic Party does) that they'll be in power next January.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Mar 2020 @ 1:34am

    The "deep state" conspiracy has been proven pretty well but it goes by another name in the law.

    It is used against everyone involved.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 13 Mar 2020 @ 7:24am

      Re:

      "The "deep state" conspiracy has been proven pretty well but it goes by another name in the law."

      There is no conspiracy. To be a conspiracy it would have to be hidden. Similarly there is no "deep state" - because it's very much on the visible surface.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.