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It appears that concern about government snooping may actually be an issue of equal importance to Democrats and Republicans, at least while a Democrat is in the White House.

Senator Patrick J. Leahy said Thursday that next week he would file a new version of a bill aimed at ending the National Security Agency’s bulk phone records collection program after extensive negotiations with the Obama administration and privacy groups.

Mr. Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee, has been leading the negotiations, and several officials familiar with the deliberations said a deal had been reached. Because the Senate leaves for its August recess at the end of next week, it is unlikely to vote on the bill before September.

The legislation that Leahy is working on is a marked improvement over the relatively worthless Bill the House passed, according to privacy advocates:
Mr. Leahy’s draft bill is said to make over a dozen changes to a version of the legislation, called the U.S.A. Freedom Act, that the House passed in May. Some privacy advocates who had denounced the House bill as too watered-down said they backed Mr. Leahy’s draft.

“The Center for Democracy and Technology supports the draft language we’ve seen,” said Harley Geiger, a senior counsel for the advocacy group. “It is, in every instance, a step forward and an improvement on what the House enacted.”

The language of Leahy's bill significantly tightens the language proposed by the House delineating the scope of records search demands permissible when the government seeks out phone records from phone companies. It doesn't stop the phone companies from keeping your records, it just narrows the circumstances when the government can ask for them. And it purports to end the wholesale "hoovering" of information by the NSA itself.
His bill makes several changes to provisions allowing for more public reporting about surveillance. Among other things, it would require companies to wait just one year — rather than two in the House bill — before reporting that they had received a Foreign Intelligence Surveillance Act order for the first time.

The bill also modifies several changes the House version made to the procedures of the Foreign Intelligence Surveillance Court, which hears only the government’s point of view without any opposing counsel to argue the other side or to file appeals if the government wins, and issues classified opinions interpreting surveillance laws.

The House bill says the government must make public unclassified summaries of significant rulings by the court. Mr. Leahy’s draft adds that those summaries must have enough information for people to understand the rulings’ impact on civil liberties.

The legislation also expands (somewhat)the role of a third party advocate in FISA hearings by permitting them more of a voice concerning privacy issues.

Will this legislation would stop illegal NSA surveillance? Of course not. Here's one big problem, for starters:

Mr. Leahy also does not address a controversy over the government’s practice of searching for Americans’ communications in databases of phone calls and emails that were intercepted without a warrant because the surveillance was directed at noncitizens abroad.

Several senators, including Ron Wyden of Oregon and Mark Udall of Colorado, both Democrats, have called for requiring the court’s permission to search for a specific American’s communications, and last month the House separately approved an amendment to a spending bill that would bar the use of funds for such searches. But the Obama administration opposes that change, and Mr. Leahy’s draft does not include it.

With vague, inviting loopholes like that still around, of course the domestic surveillance will go on. The NSA has proved itself again and again to be an agency which considers itself largely unaccountable to any elected officials. Its own officials have repeatedly lied about their actions to Congress--and thus to Americans-- with impunity. No new law is going to constrain the activities of an organization that has taken such an obsessive view of its "mission" to combat terrorism that it willfully ignores the right of Americans not to be spied on, to the point where devising ways to get around legal "technicalities" appears to have become the predominant aspect of that mission.  This is also an agency that's shown (like Americans themselves) that it can't say no to any new digital toys, no matter how intrusive their usage. There is no way, short of defunding and abolishing the agency, that domestic spying will ever be reined in completely.

So should we care about this legislation? Of course. While such laws will not eliminate the spying, they will serve to inhibit the actions of the NSA to some degree. They also lessen the likelihood that the NSA or any government agency or Administration would be willing to use information on American citizens for purposes of improper influence, blackmail or coercion. The more publicly known, "legal" limitations of record to the NSA's behavior, however ineffective in practice, the less likely that this agency will risk negative public exposure of the kind Edward Snowden supplied, because there will at least be a law on the books for Courts to rely on.  This alone will serve as something of an inhibition, and may possibly prompt the NSA to re-think some of its more arbitrary and violative schemes before they're actually hatched. The NSA have shown they hate public exposure more than anything else.  So long as they have to at least pretend to hew to any law, they will always be forced into maintaining a public pretense of obeying it. The real scandal of the NSA was not the spying itself--it was the fact that we were never supposed to know what they were doing. We were all supposed to blithely go along with our lives, happily chatting on our Facebook accounts, texting, websurfing, emailing, cheerfully clueless to the surveillance cage being built around us. And most Americans would be oblivious right now, if it wasn't for Snowden's actions.  But everyone knows about it now, the cat's out of the bag, and the eyes of the world are watching.

The House bill was "watered down" on the instigation of Administration officials and originally contained some fairly harsh provisions aimed at the NSA's domestic spying. So if Leahy has achieved a deal on this improved Senate version, then there is no logical reason for the legislation to be unacceptable to the Republicans when the Bill, if it passes, gets kicked back to the House.

Still, Republicans may say, why should I go along with any of this?  Why not just follow the usual pattern of blocking all legislation for the remainder of this President's term?

Well, here's a novel thought for those House Republicans:

You might want to consider the fact that there's a good chance, a better-than even-chance, that Hillary Clinton may be sitting in the Oval Office as of 2016, and possibly for many, many years thereafter. And unlike the current occupant of that Office, Hillary Clinton will not feel pressured to temper her responses to deliberately provocative acts of economic sabotage and disrespect for the office, based on concerns about appearing to be "the angry black man." She won't have to tread on eggshells when your people stand up in the Gallery and shout out "You lie," out of caution to not appear vengeful or furious--and thus playing to the stereotype you intended to instigate by these actions. She won't have to stand for it when your people make "lynching" comments or other more "coded" racist remarks just to try goad a heated response that you can use to diminish her. Hell, she probably won't feel as compelled by residual racial stereotypes to run the cleanest Administration in decades, either.

Because, in case you hadn't noticed, Hillary Clinton is not black.

And Hillary Clinton's--well, let's just admit it--Bill Clinton's --team would be back in charge of all Federal agencies, including the FBI and the NSA. The same general team that saw its leader impeached by a Republican Congress a few years back for no reason save a desire to publicly humiliate him. A team that sat through years of demonization, ugly rumors and fantastic lies about Hillary as well. But it's a brand new world now. The Internet wasn't much to look at back in those days, and the NSA and FBI were just getting started figuring out how to peek into everyone's online underwear. But now they're really good at it.  And honestly, there's just a lot more for Bill and Hillary to look into now. Because of all the people in the world, the Clintons know more about you Republicans than anybody.  And soon they may have the tools to find out all about your constituents, too.  Every last one of them, typing away into the wee hours of the night on those websites.

Yes, I'm suggesting that they think about this, because it's no different than what we Democrats envision with the NSA in the hands of a Chris Christie, Jeb Bush or Marco Rubio.

And if this all sounds like a cynical or paranoid way for either Party to look at the issue, well, there is actually some historical precedent for a Presidential Administration collecting data and spying on its enemies for purposes of political retaliation:

               Richard nixon photo: RICHARD NIXON nixon.jpg

Just imagine what that guy would have done with today's NSA and the Internet.

So yes, Republicans might want to consider signing on to a bill that at least on its face purports to put the brakes on some of the NSA's free-range surveillance.  Because when push comes to shove, their constituents can't be too comfortable about the government spying on them either.

It's a sad irony of our dysfunctional political system that the only legislation capable of being passed is that borne out of mutual distrust.

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Comment Preferences

  •  congress works for the rich (5+ / 0-)

    figure out what they want, and then know about the legislation

  •  NOPE (5+ / 0-)
    So should we care about this legislation? Of course. While such laws will not eliminate the spying, they will serve to inhibit the actions of the NSA to some degree.
    I wonder exactly who from congress, or who they will appoint to monitor the NSA to verify they are adhering to new legislation that may be passed?

    One reason to be skeptical about all of this-- the new $1 Billion dollar data collection center in Utah that was just opened-- the NSA is going to close that down due to new legislation?

    "We are beyond law, which is not unusual for an empire; unfortunately, we are also beyond common sense." Gore Vidal

    by Superpole on Sun Jul 27, 2014 at 06:57:53 AM PDT

    •  Apparently the Utah State legislature, (1+ / 0-)
      Recommended by:

      has come pretty close to shutting off their water(which would damage all those sensitive electronics, and the cooling they require).

      As far as this reform goes, the GOP is still coalescing around Rand Paul and Justin Amash. When the anti-NSA sentiment in the GOP reaches critical mass---and it will---they're all gonna come for us.

      No one wants to be spied on.

  •  Yes (6+ / 0-)
    The real scandal of the NSA was not the spying itself--it was the fact that we were never supposed to know
    That's the part that really burns me up.
  •  Like with the Supreme Court requiring a warrant... (2+ / 0-)
    Recommended by:
    Dartagnan, Tortmaster

    Like with the Supreme Court requiring a warrant

    to search a cell phone—because they have cell phones—they help us so far as they're helping themselves.

    About the "public advocate" that seems to be everyone's favorite reform, I wonder about that. Will it be a government employee? If so, it's going to be a FISA version of Alan Colmes to the intelligence community's Sean Hannity. Better that it be someone on the ACLU or EFF payroll. And like hell that'll happen... Even then, the secrecy makes a joke out of the whole idea of due process.

    •  I agree with this. (1+ / 0-)
      Recommended by:

      Don't let the Chief Judge of the FISA Court appoint the public advocate, and don't let the Chief Justice of the Supreme Court do it either. Have the Privacy and Civil Liberties Oversight Board come to a consensus on a pick.

      Here's why: Although, theoretically, the Board could be as partisan as the first two options noted above, it will have at least two members of the minority party (not the President's political party) as members. If a pick looks shaky, they will certainly raise a big stink.

      Also, have the public advocate serve at the pleasure of the PCLOB and not at the whim of any judge. The position should be adversarial and not collegial, and the public advocate can't do his or her job thinking that the judge's feelings might get hurt (and consequently he or she might get fired). I've seen that dynamic in action before, and it dilutes the process. (The Alan Colmes analogy is excellent.)  

      Also, I disagree with much of what the diarist wrote, but I do agree with some of it. An honest effort gets a rec. My position is that if you sent a mole into any Government agency for five months to snoop around and copy every file possible, and that mole had Admin privileges on the agency's computers, what is the likelihood you would find zero intentional violations of the Constitution by the Government?

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Mon Jul 28, 2014 at 03:01:37 AM PDT

      [ Parent ]

  •  For the record, the House bill is an expansion... (1+ / 0-)
    Recommended by:

    ...of current surveillance laws, and it has the White House firmly behind it. It's far from "relatively worthless." It's a major step backwards. Furthermore, what the House passed was actually a watered-down version of what the White House wanted.

    And, even Leahy's bill is weak, at best. In fact, if it's passed and becomes law--remember, we still have reconciliation and the sausage machine to deal with, regardless--it will not even include a real PUBLIC ADVOCATE in the FISA Court, who's present on every case. Anything that doesn't include that is a travesty that makes a joke of our Constitution.


    "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

    by bobswern on Sun Jul 27, 2014 at 09:19:53 PM PDT

    •  Most of the work of the FISA Court involves ... (0+ / 0-)

      ... signing individualized warrants. Why would the court need a privacy advocate for that? Warrants have been issued for centuries without a privacy advocate present in the United States, and before that, in England. Even simple criminal warrants for auto theft or felony assault are issued in secret with no third party present and no notice to any party.  

      By the way, warrants are specifically mentioned in the Bill of Rights, and nowhere does it mention needing a third party. Did the Founding Fathers make a joke of our Constitution by not including that?

      My dog likes me because I'm salty. Not salty like a pirate. Salty like a pretzel.

      by Tortmaster on Mon Jul 28, 2014 at 03:59:51 AM PDT

      [ Parent ]

      •  Advocating for Kangaroo Courts, are we? (0+ / 0-)

        Your ongoing defense of our surveillance state would be funny...if it wasn't so damn sad, and full of constant semantics, false equivocations and outright disinformation.

        Something like 0.001% of all warrant requests are not signed by this court, with virtually NO Constitutional/citizen advocacy ingrained in the process, WHATSOEVER.

        This is what you're feebly defending (I truly hope you do a better job in court defending your own clients than you do supporting your rightwing political position on this issue in this community): "Chief Judge of Secret FISA Court Admits It Cannot Properly Oversee NSA."

        "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

        by bobswern on Mon Jul 28, 2014 at 10:09:47 PM PDT

        [ Parent ]

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