As the deadline ticked closer to the expiration of the NSA’s powers of mass phone record collection, the Senate locked itself into chaotic wrangling over two competing surveillance bills on Thursday.
The House of Representatives adjourned after having overwhelmingly passed an NSA-reform bill, the USA Freedom Act, putting the onus on the Senate to either pass a bill that would curtail some NSA powers or to allow Section 215 of the Patriot Act to expire at the end of the month. A Republican ally of majority leader John Boehner said: “We will be leaving today and we won’t be coming back.”
Pro-NSA senators struggled to save an extension of the full Patriot Actthat majority leader Mitch McConnell had hoped to pass this week, before the end of the legislative session. But without the House to approve of an extension, Section 215 looks set to expire or be subject to some kind of managed lapse.
The White House backed the reform bill, with press secretary Josh Earnest saying that it was a “reasonable compromise” between security and privacy concerns. Earnest said that Obama administration officials had put pressure on senators to vote for the bill.
Some senators proposed a two-week extension in lieu of a two-month one, and others suggested that NSA powers should be allowed to lapse briefly and then immediately taken up again once Congress returns in early June. If both bills fail and senators can find now compromise, Section 215 will expire and end the NSA’s bulk collection of phone data and some of the FBI’s surveillance powers.
Republican senator Rand Paul pushed debate backward by dominating the Senate floor with a 10-hour speech on Wednesday, eating up valuable time that McConnell needed to call for cloture or rally the votes he needs for the Patriot Act.
The Hill’s Julian Hattern tweets that Richard Burr, the Republican chairman of the Senate intelligence committee, is still pessimistic about both the USA Freedom Act and Mitch McConnell’s extension of the Patriot Act.
Burr thinks both USAF + McConnell's two month reauth will fail. His backup will mirror USAF in most ways except for transition, he says
Edward Snowden, the former NSA contractor who first delivered documents to the Guardian that exposed the agency’s range of surveillance programs, has finished up an AMA over on Reddit. Some of the highlights:
The next surveillance section that Snowden said like to see reformed is Section 702 of the Fisa Amendments Act, which he said “conceals some of the worst mass surveillance operations”.
The Privacy and Civil Liberties Oversight Board considered a few of the (more reasonable) facets of individually targeted applications of the FAA 702 authority, because these are the examples the NSA is happy to demonstrate and easy for overseers to review, but they failed to consider the moral, legal, and Constitutional implications of the “upstream” mass ingestion of private communications. In basic terms, the government here prefers to ignore that the 4th Amendment prohibits not just the unwarranted search of private records, but also the initial seizure of them as well. I suspect that’s likely to haunt not only them, but all of us as well.
EO 12333 is the other skeleton in the closet, but that is going to be a tougher fight because the White House argues these operations are simply above the law and cannot be regulated by congress or the courts. It’s disappointing to see one branch of government seek to excuse itself from accountability to the others in a system founded on the idea of checks and balances, but that’s the reality of it.
Asked about encrypted messaging apps: “Signal for iOS, Redphone/TextSecure for Android.”
About books: “I have a special fondness for “Secrets,” by Daniel Ellsberg.”
Snowden said he still hopes to return to the US: “the White House has been working on that petition for a couple years, now, and the courts have finally confirmed that the 2013 revelations revealed unlawful activity on the part of the government. Maybe they’ll surprise us.”
And joked about a career here: “I hear the NSA was looking for a Civil Liberties officer.”
And finally, he was pressed about pizza after revealing he likes Russian Papa John’s.
Q: “What are your favorite toppings? I like Pepperoni, Bacon, and Tomato, but my go-to Papa John’s order is Pepperoni and Pineapple with extra sauce.”
Senators are still holding court on the chamber floor, but none have broached the Patriot Act or USA Freedom Act – even Ron Wyden, the prominent NSA critic, has kept quiet about the issue, possibly because he and Rand Paul went hoarse about it yesterday.
Between trade and joining Rand Paul's anti-Patriot Act marathon, I'm wondering how Ron Wyden is still a functioning human being.
— Sabrina Siddiqui (@SabrinaSiddiqui) May 21, 2015
One senator thinks the White House may have “given up on” Rand Paul and at least one NSA stalwart doesn’t think it’s “problematic” if the agency loses some surveillance powers for a day or two, the National Journal reports.
West Virginia Democrat Joe Manchin spoke to reporters about Republican Rand Paul, who opposes the reforming USA Freedom Act for not doing enough to diminish NSA powers. Speaking about recent the dozen or so senators approached by White House officials who support the bill, Manchin said: “I think they may have given up on him.”
“I hope we have the 60 votes on the USA Freedom Act,” he said. “The House is going home. I talked with [House Majority Leader Kevin McCarthy] this morning and I agree with everything they are doing. Go home and put the pressure on us and let’s vote on a reasonable bill.”
Republicans are particularly divided by the competing bills, as those with hawkish, pro-surveillance views, such as Mitch McConnell and John McCain, find themselves arrayed against Republicans with libertarian predilections, such as Paul.
Nevada senator Dean Heller told the Journal he hopes the USA Freedom Act has enough votes, and Arizona’s Jeff Flake said he would vote for cloture on the bill even though he had voted against it last year.
South Dakota John Thune, the third-ranked Republican in the Senate, underscored the uncertainty surrounding any possible extension of the Patriot Act. “I don’t think we have really tested the waters on that yet,” he said. “Everything is a nail-biter these days.”
Democrat Dianne Feinstein, who has vehemently defended NSA practices and frequently sparred with Ron Wyden, one of her party peers on the intelligence committee and a prominent critic of the NSA, said a brief lapse in Section 215 would not endanger national security. “I don’t think it’s problematic if it’s a day or two, or for a short period of time,” she said.
Section 215 has been used to justify the mass collection of metadata and phone records, and is set to expire at the end of the month; it could not be restored until the House returns and votes sometime in early June.
Where do the the Senate and Patriot Act powers go from here? Maybe not much of anywhere, my colleague Spencer Ackerman (@attackerman) reports.
As Sabrina Siddiqui (@sabrinasiddiqui) reported earlier Thursday, senators seem to be improvising ways to stymie each other or pass increasingly diluted compromises. “Surveillance advocates, thinking no alternative can garner 60 votes, are now floating the idea of a short temporary extension of the Patriot Act’s Section 215, currently scheduled to bite the dust on 31 May,” Spencer writes.
“The House, already out the door until 1 June, thought it had settled the issue when it voted last week for the USA Freedom Act, which preserves the controversial and expiring Patriot Act investigative powers at the expense of jettisoning NSA bulk phone-records collection,” he continues.
In response to the confusion, a bipartisan group of privacy hawks in the House have written to Speaker John Boehner to say a temporary extension of the sort the pro-surveillance senators want is a nonstarter.
“The Second Circuit recently ruled that the bulk metadata program is illegal, and to allow a vote on a clean reauthorization of this authority without real reforms would be a disservice to the hundreds of millions of Americans we represent. We will not vote to reauthorize this program, even for a short period of time.”
The letter is signed by Democrats Zoe Lofgren, Anna Eshoo and Jared Polis; and Republicans Justin Amash, Ted Poe and Thomas Massie.
Much of the maneuvering now by both sides is intended to shut down options.
A wholesale reauthorization of Section 215? Rand Paul and Ron Wyden will filibuster it. A temporary wholesale reauthorization of Section 215? Rand Paul and Ron Wyden will probably filibuster it, though it may not have the votes in any case. The USA Freedom Act? May not have the votes either; and if Paul doesn’t get his amendments added on to it, he might filibuster that, too.
Pressure on the Senate to act is coming from almost all quarters, including Democrats on the House intelligence committee.
“Without action by the Senate this week to approve the USA Freedom Act, Section 215 of the Patriot Act will expire and we will lose the opportunity to gain lasting reforms,” the Democrats said in a statement, describing the consequences as “a result benefiting neither our citizens’ privacy nor our nation’s security.”
“We will also lose other important capabilities provided by the expiring authorities that have nothing to do with bulk collection,” they added. “This is the least desirable outcome, especially when an acceptable alternative is available already.”
Representative Adam Schiff, a senior member of the pro-NSA intelligence panel, led the group as it tried to move Republican Senate majority leader Mitch McConnell to give up his efforts at a clean extension of the Patriot Act. Schiff and his colleagues said that the reforming USA Freedom Act would at least preserve NSA powers while allowing 215 to expire would limit the agency’s recourses.
Senator Rand Paul has offered a trolling helping hand to Senate majority leader Mitch McConnell and his Republican peers who would prefer to pro-NSA bill passed in Congress.
In a release, Paul has “offer[ed] amendments to USA Patriot Act Extension” with the first bullet: “replace the Patriot Act extension with bipartisan comprehensive surveillance reform.”
Paul’s tips not only include all the changes of the USA Freedom Act but several that he wanted attached to it but failed to win. The bullets and language are Paul’s; the links for context Guardian’s.
Gives Americans spied on by the government the standing to sue in court
Ends “reverse targeting,” which the government uses to target the communication of an American without a warrant by targeting the non-US persons with whom they speak.
Establishes that companies subjected to a government order to provide customer records may appeal that order beyond the Fisa courts into federal appeals court.
Despite the attention paid to the NSA and how it would be affected by the expiration of Section 215 of the Patriot Act, the provision has been exploited by more than one intelligence agency. The Guardian’s national security editor Spencer Ackerman (@attackerman) reports:
As lawmakers and security agencies braced for a potential loss of the heart of the Patriot Act, a long-delayed Justice Department report showed that the FBI uses the surveillance authorities it provides for “large collections” of Americans’ internet records.
But a Justice Department inspector general’s report covering the FBI’s use of Section 215 from 2007 to 2009 found that the bureau is using the business-records authority “to obtain large collections of metadata,” such as “electronic communication transactional information.”
The redacted report does not say specifically what information was collected by the FBI, but it likely includes the metadata of emails, instant messages, texts and IP addresses, Spencer continues. “Sections of the report refer to the FBI asking for ‘material related to internet activity’ and mention ‘IP addresses and to/from entries in emails.’”
The inspector general found that the FBI received from the Fisa court 51 orders for such data between 2007 and 2009, compared with 32 orders issued from the Patriot Act’s 2001 inception until 2006. An unrevealed fraction of those post-2007 orders include the NSA’s requests for bulk phone data every 90 days. Cybersecurity investigations were a growing category of the orders by 2009.
Additionally, the inspector general has outstanding questions about FBI procedures to obscure and destroy information about Americans obtained by the bureau that is not related to terrorism or espionage, even though it took the bureau some seven years to implement them.
FBI Director James Comey said on Wednesday that losing Section 215 would be a “big problem,” but inspector general wrote in the report that “agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders, but told us that the material produced pursuant to Section 215 orders was valuable in that it was used to support other investigative requests, develop investigative leads, and corroborate other information.”
Privacy advocates seized on the report to argue, echoing Senator Rand Paul in his Wednesday filibuster, that the time has come to abandon all of Section 215, not just the bulk collection provision that a federal appeals court has already deemed illegal.
“This report adds to the mounting evidence that Section 215 has done little to protect Americans and should be put to rest. As Congress debates whether to rein in the NSA, this investigation underscores how sweeping the government’s surveillance programs are and how essential systemic reform is right now,” said Alex Abdo, an attorney with the American Civil Liberties Union.
My colleague Sabrina Siddiqui (@sabrinasiddiqui) reports from Washington that Senate Republicans are mulling an even shorter extension of the Patriot Act in its current form, in lieu of the two-month extension being pushed by Senate majority leader Mitch McConnell.
Intelligence committee chairman Richard Burr, a Republican, told reporters that both the USA Freedom Act and a two-month extension are likely to fail a cloture vote.
John Cornyn, the Republican whip, remained hopeful that members could be persuaded to support a two-month extension if the House-passed Freedom Act fails. But he too suggested that an even shorter stopgap measure may be needed to cobble together the 60 votes required for passage.
“Nobody wants us to go dark on our ability to detect terrorist activity, so I imagine there will be some very urgent discussions and we’ll work something out that will get us to a place where we can have deliberate debate and amendments and votes,” Cornyn told reporters. “My view is there will be an extension, I just can’t tell you how long.”
The thinking among Senate GOP leadership is that once the House bill fails, they can corral support for the shorter extension and throw the ball back into the House’s court – even though the House has already adjourned for its recess and will not return until the NSA’s powers expire. Arizona senator John McCain, a Republican who supports the NSA programs, said there’s “some parliamentary bullshit” that would enable the House to return on June 1 and take up whatever the Senate sends over.
Virtually all Republicans who emerged from a closed-door lunch agreed that the pathway forward remains entirely unpredictable.
There are at least three possibilities for the coming days and weeks.
A curtailed NSA: The Senate could pass the USA Freedom Act, sending it to Barack Obama’s desk to sign and creating new rules and limits on NSA surveillance powers.
An expired 215: The Senate could fail to pass the USA Freedom Act and Section 215 of the Patriot Act could expire, ending the NSA’s bulk collection of phone data and FBI surveillance powers at the end of the month.
An extension or temporary lapse: The Senate could also try to devise some kind of compromise, possibly by allowing both NSA and FBI surveillance powers to lapse and leaving it to the House to pass a bill restoring the authorities immediately upon its return in early June.
Behind the scenes at the Senate, the NSA’s defenders and critics are fighting to find some kind of compromise or alternative to the USA Freedom Act, which would end the NSA’s daily bulk collection of Americans’ phone records.
My colleague Sabrina Siddiqui is in the labyrinth beneath the Capitol learning about the arguments the senators are having.
Senate Republicans discussing possible shorter Patriot Act extension as opposed to 2 months, according to members leaving lunch.
— Sabrina Siddiqui (@SabrinaSiddiqui) May 21, 2015
Democratic Senator Al Franken just took the chamber’s floor, urging his colleagues to set aside their concerns about the USA Freedom Act and embrace it as “a step in the right direction for reforming our nation’s surveillance laws.”
Other congressmen are also speaking out, including Republican senator John McCain. The Arizona senator prefers a full renewal of the Patriot Act, and has taken a typically contrarian view of the seemingly imminent expiration of NSA powers, the AFP’s Michael Mathes reports.
Blunt-as-ever @SenJohnMcCain says House cld pass Patriot Act extension after Senate, thru move he described as "parliamentary bullshit."
Senator Richard Burr believes both the USA Freedom Act and the short-term extension of the Patriot Act will both fail, my colleague Sabrina Siddiqui reports from the Capitol.
Should both bills fail, the NSA’s mass surveillance powers under Section 215 will lapse at the end of the month.
Intel chairman Richard Burr emerges from GOP meeting and predicts both USA Freedom Act and 2-month extension will fail.
— Sabrina Siddiqui (@SabrinaSiddiqui) May 21, 2015
Earnest says that senior Obama administration officials have been trying to convince senators to pass the USA Freedom Act “as recently as today”.
Senior White House officials and “national security professionals” – presumably NSA administrators – agree about the bill, he says, and feel that it “appropriately strikes the balance between giving our national security professionals the authorities they need to keep us safe and also protect the privacy and civili liberties” of Americans.
Earnest urges the Senate to follow the House’s precedent, saying that the bipartisan support is “an indication that a lot of the hard work in this has already been done.”
“It deserves the support of the Democrats and Republicans in the Senate, and we’re making that case very directly to Democrats and Republicans in the Senate as recently as today.”
The USA Freedom Act would divest the NSA of its daily bulk collection of Americans’ phone metadata. Many civil liberty activists, including senator Rand Paul, criticize the bill for not doing enough to rein in surveillance powers, since the NSA would still be able to acquire massive amounts of data from telecom companies, and it and the FBI would still be allowed to search without warrants through existing NSA collections.
The Guardian’s DC bureau chief is doing the math on what it could take for the Senate to pass the USA Freedom Act – the tally could give civil liberties activists hope for partial reform of the NSA.
by my count there are at least 7 Republicans responding to pressure to vote for USA Freedom - halfway there. Could McConnell bring up today?
Back in Washington, White House press secretary Josh Earnest has dodged a question about the president’s position on a short-term extension of the Patriot Act with all its provisions intact.
Instead he reiterates that the White House is “strongly supportive of the passage” of the USA Freedom Act.
The bill “best reflects the need to give our law enforcement and national security authorities the tools they need,” he says, “while also enhancing the privacy and civil liberty protections that the American people deserve.”
It’s not all NSA and legislation over on Snowden’s Reddit AMA. There’s also pizza.
Snowden has revealed he is a fan of Papa John’s, telling someone who asks about pizza and Russia and what insect he would be if he could be an insect (because Reddit users take the “ask me anything” imperative seriously): “This guy gets it. Russia has Papa John’s. For real.”
Snowden dubs Paul’s sort-of-filibuster speech a sign of a “sea change”.
Whatever you think about Rand Paul or his politics, it’s important to remember that when he took the floor to say “No” to any length of reauthorization of the Patriot Act, he was speaking for the majority of Americans – more than 60% of whom want to see this kind of mass surveillance reformed or ended.
He was joined by several other senators who disagree with the Senate Majority leader’s efforts to sneak through a reauthorization of what courts just weeks ago declared was a comprehensively unlawful program, and if you notice that yours did not take to the floor with him, you should call them right now [emphasis Snowden’s] and ask them to vote against any extension of the Patriot Act, because the final vote is being forced during the dark of a holiday weekend to shield them from criticism.
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