Tag: Patrick Leahy

Jul 31

USA Freedom Act Still Won’t Protect Americans’ Liberties

Cross posted from The Stars Hollow Gazette

Senator Patrick Leahy (D-NH) introduced the version of the USA Freedom Act on Tuesday.

Leahy’s bill, like the House’s, would still provide the NSA with access to enormous amounts of American phone data. Though it would require a judge to issue an order to telecos for “call detail records” based on a “reasonable, articulable suspicion” of association with terrorism or a foreign power, the NSA will be able to use that single order to obtain the “call detail records” of a suspicious entity, as well as those of entities in “direct connection” with it and entities in connection with those.

While that would permit the NSA to yield thousands of records off of a single court order, on a daily basis for six months, the NSA and the bill’s architects contend that it bans “bulk collection.”

Leahy’s bill would go further than the House version in narrowing the critical definition of “specific selection term,” a foundational aspect of the bill defining what the government can collect. The House definition is a “term specifically identifying a person, entity, account, address, or device,” which privacy groups have lambasted as unreasonably broad.

Seeking to plug that loophole, Leahy would prevent the NSA or the FBI from accessing a service provider’s entire clientele or a wholesale “city, state, zip code, or area code.”

Although the Leahy bill has the support of several civil libertarian groups and major tech firms like Facebook and Google, it does not revive some privacy proposals that those organizations considered crucial but the intelligence agencies and their advocates in Congress stripped from the House measure.

There are still some really big loopholes, as noted by emptywheel’s Marcy Wheeler:

Leahy’s bill retains the language from USA Freedumber on contact chaining, which reads,

   (iii) provide that the Government may require the prompt production of call detail records-

   (I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

   (II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

Now, I have no idea what this language means, and no one I’ve talked to outside of the intelligence committees does either. It might just mean they will do the same contact chaining they do now, but if it does, why adopt this obscure language? It may just mean they will correlate identities, and do contact chaining off all the burner phones their algorithms say are the same people, but nothing more, but if so, isn’t there clearer language to indicate that (and limit it to that)? [..]

I remain concerned, too, that such obscure language would permit the contact chaining on phone books and calendars, both things we know NSA obtains overseas, both things NSA might have access to through their newly immunized telecom partners.

In addition, Leahy’s bill keeps USA Freedumber’s retention language tied to Foreign Intelligence purpose, allowing the NSA to keep all records that might have a foreign intelligence purpose.

That’s just for starters. She is also concerned about the vague language will still be used to allow bulk collection. She doesn’t think it’s strong enough

The question is whether this “agency protocol” – what Chief Justice John Roberts said was not enough to protect Americans’ privacy – is sufficient to protect Americans’ privacy.

I don’t think it is.

First, it doesn’t specify how long the NSA and FBI and CIA can keep and sort through these corporate records (or what methods it can use to do so, which may themselves be very invasive).

It also permits the retention of data that gets pretty attenuated from actual targets of investigation: agents of foreign powers that might have information on subjects of investigation and people “in contact with or known to” suspected agents associated with a subject of an investigation.

Known to?!?! Hell, Barack Obama is known to all those people. Is it okay to keep his data under these procedures?

Also remember that the government has secretly redefined “threat of death or serious bodily harm” to include “threats to property,” which could be Intellectual Property.

So CIA could (at least under this law – again, we have no idea what the actual FISC orders this is based off of) keep 5 years of Western Union money transfer data until it has contact chained 3 degrees out from the subject of an investigation or any new subjects of investigation it has identified in the interim.

In other words, probably no different and potentially more lenient than what it does now.

And one more thing from Marcy: Leahy’s version still will allow the FBI uncounted use of backdoor searches:

I strongly believe this bill may expand the universe of US persons who will be thrown into the corporate store indefinitely, to be subjected to the full brunt of NSA’s analytical might.

But that’s not the part of the bill that disturbs me the most. It’s this language:

   ‘(3) FEDERAL BUREAU OF INVESTIGATION.-

   Subparagraphs (B)(iv), (B)(v), (D)(iii), (E)(iii), and (E)(iv) of paragraph (1) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.

The language refers, in part,  to requirements that the government report to Congress [..]

These are back door searches on US person identifiers of Section 702 collected data – both content (iv) and metadata (v).

In other words, after having required the government to report how many back door searches of US person data it conducts, the bill then exempts the FBI.

The FBI – the one agency whose use of such data can actually result in a prosecution of the US person in question.

We already know the government has not provided all defendants caught using 702 data notice. And yet, having recognized the need to start counting how many Americans get caught in back door searches, Patrick Leahy has decided to exempt the agency that uses back door searches the most.

And if they’re not giving defendants notice (and they’re not), then this is an illegal use of Section 702.

While the Senate version may be a good enough reason for some civil libertarians, privacy groups and technology firms to back, it still falls far short of what is needed to protect Americans’ constitutional rights and privacy.

Nov 14

Congressional Game of Chicken: Filibuster Reform Discussed Again

Cross posted from The Stars Hollow Gazette

The side show over filibuster and Republican obstruction of President Barack Obama’s appointments to cabinet positions and to vacant seats on the bench, especially to the DC Circuit which hears some of the most important constitutional cases, has once again begun amidst the main event of the failure the roll out of the ACA. Senate Republicans filibustered a judicial nomination to the DC Circuit Court

President Obama’s latest choice to fill one of the vacancies on a powerful appeals court went down in a filibuster on Tuesday as Senate Republicans blocked another White House nominee – the third in two weeks – and deepened a growing conflict with Democrats over presidential appointments.

By a vote of 56 to 41, the nomination of Cornelia T. L. Pillard, a Georgetown law professor, fell short of clearing the necessary 60-vote threshold. [..]

The disagreements carried over onto the Senate floor on Tuesday, as Democrats accused Republicans of blocking a perfectly qualified woman for political purposes, while Republicans said Democrats were desperately looking for a wedge issue.

Looming underneath their disagreements about Ms. Pillard is the likelihood – which appeared to grow considerably on Tuesday – that the fight will escalate and result in a change to the Senate rules to limit the minority party’s ability to filibuster judicial nominees.

Senator Richard J. Durbin, the chamber’s No. 2 Democrat, warned Republicans that they were pushing the Senate dangerously close to a tipping point.

The Republicans attempt to reframe the argument saying that the DC Circuit isn’t as busy as other courts such as the 2nd Circuit in New York. The court handles most of the legal challenges to federal agencies, putting it at the center of fights over regulations – including the healthcare reform law and Obama’s push to regulate greenhouse gas emissions from power plants. After Tuesday’s vote, Senator Charles Grassley (R-IA) said, “We’re going by the standards that Democrats set in 2006.”

Their strategy: lock in the current 4-4 court by eliminating the empty seats and redistributing them to other circuits, because some other courts (ones that aren’t the first recourse for people suing Congress over legislation) have more cases. “In 2012, there were 512 ‘administrative appeals’ filed in D.C.,” said Grassley on Tuesday. “In the 2nd Circuit, there were 1,493. Stated differently, in D.C. there were only 64 administrative appeals per active judge. The 2nd Circuit has nearly twice as many with 115.”

That framing, which seemed like a stretch-no one also denies that the D.C. Circuit gets more pivotal cases than the 2nd Circuit-has since been universally adopted by the right. Ohio Sen. Rob Portman, the sort of Republican whom Democrats like to cut deals with, has endorsed Grassley’s Court Efficiency Act because it would “bring a reasonable end to the destructive partisan fights to which both parties have contributed.” A third-party ad hitting Arkansas Sen. Mark Pryor (a Gang of 14 member) right now accuses him of trying to “pack a key court with liberal judges” because he doesn’t want to eliminate the three open seats. Grassley points out that Democrats blocked a 2006 Bush nominee on the grounds that the seat didn’t need to be filled-what more evidence does he need?

“We’re going by the standards that Democrats set in 2006,” said Grassley after Tuesday’s vote. “They said that we didn’t need any more judges. And that’s exactly what I’m telling ’em, what they said! We’re just doing what they said. They set the standard and they can’t say we’re doing this because we’ve got a Democratic president, because I got a judge removed, the 12th one removed, when we had a Republican president.””

The problem with Grassley’s argument is that in 2006, the Republican’s got what they wanted. By threatening the “nuclear option,” the Democrats backed down and three very conservative, ideologues were appointed to the DC circuit. Funny how the Republicans can now support that which they opposed seven years ago.

Support for filibuster reform picked up a new supporter after the vote, Senate Judiciary Committee Chair Patrick Leahy (D-VT).

“If the Republican caucus continues to abuse the filibuster rule and obstruct the president’s fine nominees to the D.C. Circuit, then I believe … a rules change should be in order,” Leahy said on the Senate floor, just before Republicans blocked Nina Pillard’s confirmation to the D.C. Circuit Court of Appeals.

“That is not a change that I’ve wanted to see happen,” he continued. “But if Republican senators are going to hold nominees hostage without consideration of a nominee’s individual merits, drastic measures may be warranted.”

Leahy, laughing at the Republican excuse that each judge costs $1 million per year, stated the Republican government shut down cost billions of dollars that would have funded those appointments for years.

Contributing editor at the National Journal and resident scholar at the conservative American Enterprise Institute, Norm Ornstein laid out his reasons why it was time to stop the filibuster madness

Mel Watt was nominated by President Obama to head the Federal Housing Finance Agency-and was blocked by a Republican filibuster. The rationale that Watt was not qualified for the position was flimsy at best. If individual senators wanted to vote against him, they certainly have the right to do so on any basis. But to deny the president his choice for this post, a veteran and moderate lawmaker with sterling credentials and moral character, via filibuster, is nothing short of outrageous. Only two Republicans in the Senate, Rob Portman and Richard Burr, Watt’s colleague from North Carolina, voted for cloture.

Watt was not the only victim of a drive-by filibuster; so was Patricia Millett, a superbly qualified and mainstream nominee for the D.C. Circuit Court of Appeals. Only two Republicans supported cloture here; Lisa Murkowski and Susan Collins, and three others voted “present” (which was no help, since anything but a vote for cloture is meaningless with a rule requiring 60 votes, period, to end debate). The rationale here was even more flimsy than that used against Watt, namely that Obama is trying to “pack” the D.C. Circuit. FDR tried to “pack” the Supreme Court by adding seats to the existing Court. Barack Obama is moving to fill long-standing vacancies on the D.C. Circuit. On this Circuit, thanks to a slew of retired judges appointed by presidents long gone, conservatives have an edge that Mitch McConnell is determined to keep no matter what.

When Harry Reid and McConnell reached a deal on filibusters in January, it was clear that a key component of that deal was that Republicans in the Senate would give due deference to a newly reelected president in his executive nominations, and would only oppose judicial nominations for courts of appeals under “extraordinary circumstances,” which clearly means judges without clear qualifications or experience, or extreme ideologies. No one could accuse Millett of either of those characteristics. This is all about denying a president the right to pick judges to fill existing vacancies. Two more nominees for the D.C. Circuit are coming up soon, the real test of whether Republicans will continue to flout the January agreement and threaten fundamental comity in the Senate. [..]

If the other two D.C. Circuit nominees are filibustered and blocked, I would support Harry Reid’s move to change the rules now, to move from a 60-vote requirement to stop debate and vote to a 40-vote requirement to continue debate. The argument that if he does so, Republicans will do the same thing when they take the White House and Senate is a bad one: Can anyone doubt that McConnell would blow up the filibuster rule in a nanosecond if he had the ability to fill all courts with radical conservatives like Janice Rogers Brown for decades to come? I hope it does not come to this-and that the problem solvers in the Senate keep their titles, preserve their institution, and stop the filibuster madness.

But does Senate Majority Leader Harry Reid have the votes? Even with Leahy’s support this time, there may not be the 51 votes needed.

“If we can’t move ahead based on how the procedures have been perverted, we need to fix the procedures. That’s the deal,” said Larry Cohen, president of Communications Workers of America, which is leading a coalition lobbying for changes to filibuster rules.

Cohen said Reid “is willing” to change the rules but “the question is whether the leader can get 50 Democrats, not 49 or 48, to sustain that motion.”

A senior Democratic aide said Reid has not conducted a recent whip count and questioned how outside groups or rank-and-file Democratic senators would know the vote count if the leader attempted a rule change immediately.

“Any declarative statements at this point are extremely premature,” said the senior aide.

A cloture vote on the nomination on Robert Wilkins, a third nominee to the court, will be held in the near future. The Republicans have already indicated that his  nomination will also be filibustered. We’ll see if reform of this antiquated, misused rule gains more support after that.  

Oct 25

It’s The End Of The Internet As We Know It (And Orrin Hatch Feels Fine)

Cross-posted to CandyBullets, MyLeftWing, The Stars-Hollow Gazette and firefly-dreaming

If you follow my website (CandyBullets) you’re probably well aware of the threat posed by the “IP PROTECT ACT” known more commonly as the Internet Blacklist bill. You’re may also be aware that this bill was recently halted in the Senate by the true Democrat Senator Ron Wyden (D-OR) who prevented the bill from coming up for a vote in the Senate (where it would doubtless pass) however a House version will be introduced this week with help of Representative Bob Goodlatte (R-VA) — probably tomorrow. If you’re not familiar with this bill then I suggest you become acquainted (the full text of the bill may be found here.)

Oct 23

US Wants MORE CIA in Pakistan, $ for Weapons, Using Wikileaks as Excuse

Like clockwork in being timed with the latest wikileaks release:

After increasing the number of drone attacks in September, now the US is pressuring Pakistan to let in more covert paramilitary and CIA forces to increase the unknown, classified number that are already there – to support the death by drones program that is killing an unknown number of militants and civilians.  The story in the WSJ also says that Pakistan’s Inter – Services Intelligence agency, ISI, is currently doing most of the intelligence gathering and that CIA chief Leon Panetta has called them “very cooperative.”


Wall Street Journal:

http://online.wsj.com/article/…

The Obama administration has been ramping up pressure on Islamabad in recent weeks to attack militants after months of publicly praising Pakistani efforts. The CIA has intensified drone strikes in Pakistan, and the military in Afghanistan has carried out cross-border helicopter raids, underlining U.S. doubts Islamabad can be relied upon to be more aggressive. Officials have even said they were going to stop asking for Pakistani help with the U.S.’s most difficult adversary in the region, the North Waziristan-based Haqqani network, because it was unproductive.

Pakistani officials believe the CIA is better able to keep details of its operations largely out of the public eye, although the agency’s drone program has received widespread attention and is enormously unpopular with the Pakistani public.

U.S. military forces on the ground remain a red line for Islamabad. A senior Pakistani official said if the Pakistan public became aware of U.S. military forces conducting combat operations on Pakistani territory, it would wipe out popular support for fighting the militants in the tribal areas. Whether covert CIA forces would cross that line however, remains an open question.

Back in July, the public relationship wasn’t so cozy.


HuffPo, 7/6/10

http://www.huffingtonpost.com/…

…. but the US – Pakistan relationship is at the heart of Washington’s counterterrorism efforts.

But the CIA became so concerned by a rash of cases involving suspected double agents in 2009, it re-examined the spies it had on the payroll in the Afghanistan-Pakistan region. The internal investigation revealed about a dozen double agents, stretching back several years. Most of them were being run by Pakistan. Other cases were deemed suspicious. The CIA determined the efforts were part of an official offensive counterintelligence program being run by Gen. Ahmed Shuja Pasha, the ISI’s spy chief.

Recruiting agents to track down and kill terrorists and militants is a top priority for the CIA, and one of the clandestine service’s greatest challenges. The drones can’t hit their targets without help finding them. Such efforts would be impossible without Pakistan’s blessing, and the U.S. pays about $3 billion a year in military and economic aid to keep the country stable and cooperative.

Pakistan has its own worries about the Americans. During the first term of the Bush administration, Pakistan became enraged after it shared intelligence with the U.S., only to learn the CIA station chief passed that information to the British. The incident caused a serious row, one that threatened the CIA’s relationship with the ISI and deepened the levels of distrust between the two sides. Pakistan almost threw the CIA station chief out of the country.

July 2010 – HuffPo says 8 years after the war in Afghanistan, a very poor and not very large country, was not going so well, the Obama administration finally became “concerned” about their intelligence partners in the region.   Three months after the first batch of wikileaks were released,  April 5, 2010.    

Aug 15

Live Blogging the Torture and Accountablity Panel Update Final Update

This is the panel the Dog has been waiting for! Torture and accountability. On the panel we have Vince Warren,. Rep. Jerry Nadler, Marcy Wheeler and Melisa Goodman. The Dog is going to try to live blog this for those playing our home game.  

Aug 03

Weekly Torture Action Letter 20 – Leave Lady Justice Her Blindfold!

Happy Monday and welcome to the Dog’s ongoing letter writing campaign for accountability for the Bush Era State Sponsored Torture program. The premise of this campaign is to write decision makers every Monday urging them to do the right thing in terms of our international treaty obligations and our Federal statutes. This means to investigate the enormous amount of prima facie evidence and where warranted by the evidence, to prosecute. The Dog writes a letter every week, which you, the activist, can either cut and paste or use as the jumping off point for your own letter.

Originally posted at Squarestate.net

Jul 27

Weekly Torture Action Letter 19 – Investigate For The Sake Of Our Troops

Happy Monday and welcome to the Dog’s on going letter writing campaign for accountability and the rule of law for the apparent Bush Era torture programs. The premise of this campaign is the Dog will write a letter to one of the key decision makers (with carbon copies to others) and provide the links to reach these worthies. Your job, gentle reader, is to either use the letter as a jumping off point for your own letter, or just cut and paste the letter and send it off under your own signature.

Originally posted at Squarestate.net

Jun 15

Weekly Torture Action Letter 13 – Judge Sotomayor And The Judiciary Committee

Happy Monday and welcome the Dog’s ongoing letter writing campaign. For those of you joining for the first time the idea is every Monday the Dog writes a to decision makers about accountability for the Bush Administration State Sponsored Torture program. This letter can be cut and by any reader or used as the jumping off point for your own letter. The point is to keep the pressure up on the decision makers to make those who apparently committed one of the worst possible crimes accountable for their actions. Today’s letter is to Sen. Patrick Leahy and the Democrats on the Judiciary Committee.

Originally posted at Squarestate.net

Jun 04

Uniting American Families Act update

On Monday afternoon, I posted a diary discussing the Uniting American Families Act. It also got Front Paged here (thanks, benign overlord administrators) I also received an excellent e-mail about the issue.

I titled the diary “The gay rights bill you don’t know about.” I should have checked some tags first. Heh.

At any rate, the Senate Judiciary Committee held a very informative hearing on the bill Wednesday morning.

To recap, UAFA does one simple thing. It would allow American citizens to sponsor same sex partners for immigration just like married couples. The Senate bill is sponsored by Patrick Leahy of Vermont while the House version is sponsored by Jerrold Nadler of New York. Follow me below for a recap of the hearing.

Jun 01

The gay rights law you don’t know about

On Wednesday morning, June 3, at 10 a.m. the Senate Judiciary Committee will hold a hearing on the Uniting American Families Act (UAFA). (If you are in town, the hearing is in Room 226 of the Dirksen Senate Office Building.) C-Span does not have Wednesday’s television schedule up yet, but the Committee website offers a webcast of the hearing.

UAFA would amend the Immigration and Nationality Act to allow a citizen to sponsor a same sex partner for citizenship.

This might be one of those bills that ultimately goes nowhere or it may fundamentally change the course of both the gay marriage and immigration debates. Follow me below the fold for more on this bill.

May 31

Considered Forthwith: Senate Judiciary Committee

Note: this turns Orange and will appear at Congress Matters Sunday at 8 p.m.

Welcome to the tenth installment of “Considered Forthwith.”

This weekly series looks at the various committees in the House and the Senate. Committees are the workshops of our democracy. This is where bills are considered, revised, and occasionally advance for consideration by the House and Senate. Most committees also have the authority to exercise oversight of related executive branch agencies. If you want to read previous dairies in the series, search using the “forthwith” tag or use the link on my blogroll. I welcome criticisms and corrections in the comments.

This week I will look at the Senate Committee on the Judiciary. The committee’s jurisdiction is very similar to the House Judiciary Committee (the Forthwith diary is posted here). There is one big difference, though. The Senate committee gets to hold hearings on judicial confirmations, so this seems timely.

Additionally, the committee is scheduled to hold a hearing on an important gay rights/immigration bill (see Uniting American Families Act below).

Mar 05

Birth of a Whitewash: Who Testified at Leahy Torture Commission Hearings?

There has been plenty of controversy on the issue of conducting a Congressional or independent investigation into the interrogations policy and torture activities of the Bush administration over the last seven or eight years.

One of the primary worries by those who oppose a “truth and reconciliation”-style investigation is that it would preempt possible prosecutions, or at worst, be a cover-up of some of the worst crimes involved. Those who favor such an investigation believe that is only with a broad investigation will all the information really be unearthed.

The hearing today by the Senate Judiciary Committee — “Getting to the Truth Through a Nonpartisan Commission of Inquiry” — chaired by Senator Patrick Leahy (D-VT), was called to explore options for investigating past torture and counter-terrorism policy.  The committee called six witnesses, some for, some against such an investigation. But a close look at the backgrounds and affiliations of even most of the pro-investigation witnesses should give us deep pause, and ask what kind of commission are we being set up for?

Load more