PATRIOT and State Secrets Mark-Up, Day Two
Here’s Jerry Nadler, in yesterday’s hearing, explaining how the PATRIOT reauthorization attempts to balance privacy and national security.
Follow along today’s hearing here.
Oops, I had some technical issues. Started up late. Apparently Lamar Smith is attempting to keep Lone Wolf.
Conyers now explaining that Suzanne Spaulding says govt could always seek criminal warrant for a Lone Wolf. Lone Wolf provision not in original PATRIOT, nor the one that got substituted in middle of the night in rules committee, got added for reasons not remembered by me now. Govt already uses criminal warrants with domestic terrorists, comparable to Timothy McVeigh. Tom Evans says Lone Wolf not constitutional.
Chaffetz: My understanding is that DOJ is in favor of keeping this in place.
Smith: I agree with President of US and DOJ and FBI that this needs to be reauthorized. Let me address again those who argue that we can substitute criminal wiretaps. Wiretaps that the evidence will be turned over to defendant. In case of this provision, dangerous to turn over, bc it might reveal sources and methods. Second reason, criminal wiretaps require live minimization. Translating foreign language, live minimization impossible. I don’t know if gentleman from CA would like for me to yield to him?
[Interesting, this is where Adam Schiff pushes right.]
Nadler: Only heard one of Mr. Smith’s two points, that if you use lone wolf, if you use Title III, that is done with view toward using evidence in court, if evidence collected that was secret, bring CIPA into play. Not a valid reason for having new section of law. Fundamental reason for not extending it, if you don’t show connection to foreign power, no justification for going beyond Fourth Amendment. Fourth Amendment is a protection in criminal law, when you have lone wolf, who by definition is not foreign intell, then it makes this whole thing unconstitutional.
Smith: It does add to burden.
Nadler: SCOTUS has made it clear that Fourth Amendment applies to all persons in US.
Smith: Live minimization. Speaking foreign language.
Sensenbrenner: Support amendment of gentleman from TX. Lone Wolf plugged the hole. Maybe bc the hole is plugged, not necessary to use it, but if we create the hole again, we create a gap that terrorists will exploit. Prosecution required to disclose in open court, phone conversations disclosed in court, result indicated that we weren’t able to use that surveillance method day after it became used in trial.
[The Republicans keep arguing that any hole in PATRIOT will be used by AQ, even while arguing that parallel holes in civil liberties protections won’t be used by investigators. I guess some human beings are either shrewder or less human than others.]
[Sensenbrenner is arguing that al Qaeda was successful on 9/11 bc of the earlier World Trade Center trial.]
Conyers: Lone wolf never came before judiciary committee.
Sensenbrenner: DOJ realized it needed it in 2004.
On this, Schiff and Quigley voted yes (that is, to keep the Lone Wolf provision.) Also there are a lot more Republicans present, it looks like. Looks like Conyers had to keep this one open long enough to get the votes. 15-15 vote.
They’re breaking for a vote right now. I’m curious that Quigley was the one person–besides Adam Schiff, which I have predicted–who voted to keep Lone Wolf. Is it because he’s new, or bc he thinks he might have to face Rahm? Or what?
AND we’re back…
Tammy Baldwin now introducing amendment.
Baldwin: Thank you for limiting current law that has been employed in violation of Americans’ civil liberties. Remember well history that Chair cited yesterday when our Committee’s bill was tossed aside. Do have concerns about classification about programs authorized by FISA or NSLs. Whether programs need to be classified as such. Amendment expresses sense of Congress that President should review classification level of programs that use NSLs or authorities under FISA. Amendment makes clear that review should not endanger ongoing investigation. EOs on classification, 13292. This includes systematic declassification review by each agency. My amendment is consistent with these orders. Reaffirms that govt should provide info about these programs as soon as possible. Obama Admin has already taken steps to declassify. Documents from OLC on torture. July spy satellite images, ice melting.
Smith: I don’t object to this amendment, considering that NSL provisions have been so weakened, why have this review. Good part of bill.
Conyers: Weakest endorsement this year.
Coble: Introduces amendment striking section requiring public reporting. Declassification belongs to Executive, I don’t think we can legally require this. Postpone until necessary input from DOJ.
Conyers: Suggestion, that perhaps if gentleman would be kind enough to withdraw, we will get immediate meeting with DOJ, and you and me and ranking member to determine if your amendment is the only outcome, if there’s no satisfaction to be had from DOJ.
Smith: I’d like to accept your offer, add items, starting with lone wolf.
Conyers: I would add the lone wolf since it was defeated on tie vote.
Sheila Jackson Lee: Introduces humanitarian exemption from criminal material support statute. Want to note for the record that title of reauthorization PATRIOT allows consideration of number of issues including material support. Seeks to limit some of provisions that have diminished privacy. Gentleman from TX, well aware of some of the issues on charitable foundations, does not capture charitable orgs that were using that status for terrorist activity. To address providing humanitarian aide. Currently employees face prison time, should be imposed only on those who mean to support terrorism.
Baldwin: Result is that people do without necessities because humanitarian groups are prohibited under material support provision. Very difficult to provide assistance in Sri Lanka after tsunami without cooperating with Tamil Tigers. I do believe we have to amend underlying language.
Nadler: While I understand humanitarian concerns. Effect would be far from humanitarian. Add food and water to medical supplies. Issues not definition, prohibition to which definition refers. Prohibits from providing resources, knowing or intending they will be used for terrorism related offense. If it’s not given with intent that it be used for terrorist act, it’s not prohibited.
Smith: Amendment not germane, beyond scope and purpose.
Jackson Lee: Disagree with interpretation of definition. We have amended roving wiretaps. I believe this is germane. Withdraw amendment. Would like to add this issue to discussion with DOJ.
Bobby Scott agrees to do hearing in Criminal subcommittee.
DWS: Grave concern and personal opposition. This is settled question. Money is fungible, I don’t think it would be appropriate or timely.
Jackson Lee: Basis for oppty to explore for factual information.
Rooney: Strike changes make to criminal pen registers and trap and trace devices. Federal criminal code has provided since 1986. Requires specific and articulable facts in statement to Court. Says police opposed.
Quigley: Have law enforcement agencies taking stand against, in form of documents, and put into record?
Rooney: Emails effectuating what was stated.
Quigley: Groups?
Rooney: National DA Assc, Fraternal Order of Police, etc.
Scott: Section 107 would be eliminated by this amendment. Trap and trace does not capture privacy. Under current law, not requirement that explain any facts.
Smith: Support. Strikes changes made. If amendment not adopted, will unduly burden law enforcement.
Rooney: When you talk about standards of proof.
Schiff: Secondary? One that would not have specific and articulable, but do away with presumption?
Rooney: Would consider, would alleviate disparity, that there’s some problem with existing law.
Issa: On this side having a hard time finding that there is a presumption. In this case, writing down license plate numbers. More appropriate equivalent. Trapping relevant association numbers.
Lungren: Hearings on this particular subject?
Scott: Not sure if this came up.
Lungren: Law enforcement technique, law enforcement agencies unanimously oppose change. Far-ranging change in the law.
Schiff: Question to author of amendment is, would the gentleman accept secondary amendment?
Rooney: Without any evidence or proof that current standard being abused, I don’t see the need to modify. I’d like amendment to stand on its own.
Johnson: Is it true that when investigation that has not led to indictment.
Scott: Trap and trace pursuant to court order.
Rooney now introducing same amendment wrt FISA trap and trace.
Smith: New standard unnecessary, burdensome to govt.
Jackson Lee: Not enhanced standard, Clearer standard.
Jackson Lee: Public reporting.Achieve President’s support for transparency.
Adam Schiff and a top staffer are having fairly intense discussion right in front of Jackson Lee. I wonder what Shiff has coming.
Jackson Lee invoking King assassination in support of greater transparency on PATRIOT.
Smith: Wish Conyers was here, because when Coble strike public reporting on NSL, this amendment would fall under same category. Ask colleague from TX to consider withdrawing, so she and Coble and I can discuss public reporting.
Lungren: Revises standard by which FISA will review govt cert of nondisclosure of business record. Existing legislation strikes conclusive. Substantial weight rather than no weight at all.
Scott: Under current law when a person receives 215, he cannot challenge for a full year. Court required to reject a challenge. Bill is right to change, too many times under last Admin, abuse of secrecy to hide crimes, torture warrantless surveillance, and whether or not Iraq had WMD. We’re right to adjust govt’s power. If govt cannot make case maybe it cannot get secrecy order to begin with.
Smith: Support amendment. Incorporates deferential standard more accurately reflects 2nd circuit.
Lungren: Stunned that Chair would talk about torture, this has nothing to do with this. Nondisclosure of business records. Adopting SJC standard.
Schiff: Adopts an appropriate balance.
[Uh, I notice you don’t make the same claim about warrantless wiretapping. Is that bc they used these authorities to replace warrantless wiretapping???]
Watt: If we were silent. Doe said standard applied was unconstitutional. What standard did they apply?
Lungren: Left it opened, but acknowledged that deference given.
Watt: Court would give deference anyway. In this cases Court gives degree of deference.
Schiff: US v Nixon, used utmost deference. If you go form situation where standard conclusive to no standard, court could infer no added weight. So if we set a standard better than no standard at all.
Thanks for tracking this, including your interpretive understandings.
Bob in AZ
The stupid. It burns.
Boxturtle (Jay Leno couldn’t keep a straight face saying some of these things!)
the room is empty
am I in the right room
Just saw your ‘taking a break’
How does anybody know if a suspect is a Lone Wolf without datamining all the content around them and snaring every person they may have come in contact with in order to rule them out?
Yeesh.
They use the same omniscience that comes in so handy when they know a terrorist is holding out on them requiring torture.
BTW, can I just say that in addition to the “9/11” Giuliani Syndrome that we also define another Tourettes-like variant for “sources and methods”? That phrase only seems to appear when they have no other defense for their unconstitutional preferences. Who shall we name that one after?
Well, there are a lot of candidates, but I kind of favour the Hayden gambit.
Works for me ; )
The very word “techniques” now makes me snort derisively. (Isn’t it amazing how these guys have destroyed the language?)
Guys like Hayden will rabbit on and on about how dangerous it is to release documents that might let teh enemy know about teh techniques … when what they are talking about, what they are calling “technique,” is sheer brute force that any Cro-Magnon could have thought up all on his lonesome and would have predicted from others.
My apologies to Cro-Magnons, who I understand were actually very nice people.
it’s the “I’M YOUR MOTHER” rule
half the population of the planet is guilty of this particularlly odious form of despotism
but it usually don’t work on adults and smart children
*disclaimer, I’m not being sexist here, Pop’s rule usually involved the words “Because I can kick your ass”, not “because I said so” (an Pop’s rule works on adults and smart children too)
It looked to me like Quigley voted Yes because “the administration said to.” Yesterday, I gave Quigley the benefit of the doubt about his reasons for wanting administration witnesses on the record before the full committee on this legislation – fair enough, in the general course of legislating, and good due diligence.
But today, it seems more likely that Quigley wants to be told what to do by The Big Boyz In Authority, and will obediently follow wherever they lead.
Is everyone on that committee (Nadler aside) afraid of Jim Sensenbrenner? Why the hell was that last pack of misinformation from him left dangling prior to the vote on the Smith effort to save the unused Lone Terrorist provision? Hey, Tammy Baldwin? You’re smart as a whip, and seem to understand our Constitution – why haven’t you said WORD ONE yet in this markup?? Or Bill Delahunt – who has yet to even make AN APPEARANCE during the markup?
KUDOS today for sure, on the other hand, to Jerry Nadler for his invocation of FISA and the FISA Court’s unique and limited Fourth Amendment-unencumbered role (which Sensenbrenner then tried to twist, without rebuttal). [Nadler’s CIPA rebuttal wasn’t bad either.] Nadler’s profoundly-important point is that ONLY if the FISA Court is used for activities clearly OUTSIDE the purview and reach of the Fourth Amendment can those secret spying activities of our government be countenanced, under our Constitution.
A point completely ignored by people like Texas’s Lamar Smith, who purposely blurs that crucial distinction, and tries to throw any old Fourth Amendment-COVERED activity into the jurisdiction of the secret FISA Court, because it’s “convenient” for the almighty federal law enforcement authorities, or will purportedly “SAVE US” from the need to worry about Constitutional restrictions on unchecked federal power – because, as we all ought to know, only the Feds can protect us, and then, only if they are allowed to operate in unmonitored and unaccountable secrecy.
My how far the Republican Party has fallen from its former religion of “limited government”… The sad little Republican Party bastard that remains is “limited regulation of multinational corporate predators” paired with letting Federal Police Authorities roam free and unhindered throughout the land in pursuit of suspect civilians.
christ when Conyers just said “come to order” I jumped out of my skin. Lost in reading
One would like to think that this not the be all and end all of Mr. Chaffetz’s analysis, whether or not he substitutes the White House of another department for the DoJ; if so, he’s employed by the wrong public agency:
Alas, I think that’s the sum total of Chaffetz’ preparation and intellectual rigor (see yesterday’s markup post). The man appears to be angling for a job in the Executive Branch since he is clearly incapable of fulfilling his obligations as a member of the Legislative Branch. I hope someone lets his constituents know he is unqualified to represent their interests in Congress.
Clearly Lungren is not following along at home.
How would you know that those trap and trace and pen register powers aren’t being abused, Mr. Rooney, seeing as how Congress is now careful never to do meaningful oversight of an Executive Branch that’s allowed (by Congress) to hide its activities behind a National Security Secrecy blackout curtain?
But, much more to the point: Has anything changed in, say, the world of communications, and digital technology, since 1986 that just might have enormously expanded the powers of pen register and trap and trace [“PRTT”] collection? Collection, as Rooney himself briefly pointed out, that now permits internet site IP addresses and email address routing information to be collected for both outgoing and incoming data on someone’s account, equally with the old-fashioned, now-ancient 1986 phone-number-detail technology of the original PRTTs.
That intrusive power to spy on our private use of the internet and email is what Issa got away with claiming to be the equivalent of law enforcement on a public roadway writing down the license plate numbers of passing cars, or standing outside a known mob club to write down details about those entering and leaving… Got away with, because of the obvious ignorance about the law and technology, and their real-world effects, exhibited by those privileged few who condescend to intermittently attend this markup, where they, as members of this judiciary committee, are charged with understanding, debating, and reforming the law. This at a legislative markup session that – as the health care legislation journey makes all too obvious – is their last chance (as non-chairs and non-Party leaders) to have any effect on the final form of the legislation, now that genuine House floor amending and debate are ruthlessly stifled, via the Rules Committee, by the majority Party in the House.
So how did the uninformed debate on Lungren’s amendment wind up (ahead of the current break for more floor votes)? With Lungren implying that the Congress needs to adopt a nationwide “deference” standard for the court so that the 2nd Circuit opinion voiding as unConstitutional the “conclusive deference” standard of the non-FISA-based National Security Letters would apply across all circuits…
Yes, that’s right, silent Democrats, isn’t it? Because we all know that the secret FISA court sits IN EVERY CIRCUIT in the nation, not just in a special wing of the federal court, in one circuit, in Washington, D.C. Correct?? [A FISA court whose decisions can only be appealed, by the government, to the Supreme Court.] And we all know, too, that there’s some sort of meaningful adversarial process in the Executive Branch-driven secret FISA court hearings, that would somehow make the FISA court disregard “due deference” for Executive Branch certifications under the PATRIOT Act’s Section 215 (where the court is already limited to lifting the gag order on government Section 215 spying to when they can say that “NO” unwanted side effects will occur because of that lifting). Agreed??
In this case, the Democrats’ Party-line votes happened to go the right way – but obviously only by pure happenstance. [Though I thought I heard Bobby Scott, as Acting Chair, say “the Ayes have it” on an amendment that he’d just argued against, without asking for a roll call vote – that was on the second Rooney amendment with regard to loosening the FISA trap and trace limitations in the new bill.]