Democrats, Including Nancy Pelosi, Help Republicans Block Civil Liberties Protections

The House has voted to renew the NSA’s warrantless surveillance program after previously failing to pass an amendment to place limitations on the program to help protect the rights of Americans. The New York Times reports:

The House of Representatives voted on Thursday to extend the National Security Agency’s warrantless surveillance program for six years with minimal changes, rejecting a yearslong effort by a bipartisan group of lawmakers to impose significant new privacy limits when it sweeps up Americans’ emails and other personal communications.

The vote, 256 to 164, centered on an expiring law that permits the government, without a warrant, to collect communications of foreigners abroad from United States firms like Google and AT&T — even when those targets are talking to Americans. Congress had enacted the law in 2008 to legalize a form of a once-secret warrantless surveillance program created after the Sept. 11 terrorist attacks.

The legislation approved on Thursday still has to go through the Senate. But fewer lawmakers there appear to favor major changes to spying laws, so the House vote is likely the effective end of a debate over 21st-century surveillance technology and privacy rights that broke out in 2013 following the leaks by the intelligence contractor Edward J. Snowden…

Before approving the extension of the law, known as Section 702 of the FISA Amendments Act, the House voted 233 to 183 to reject an amendment that proposed a series of overhauls. Among them was a requirement that officials get warrants in most cases before hunting for and reading emails and other messages of Americans swept up under the program.

Daniel Schuman of Demand Progress tweeted a list of the fifty-five Democrats, including Nancy Pelosi and Intelligence Committee Democratic Ranking Member Adam Schiff, who voted against the amendment introduced by Republican Justin Amash.

Schuman noted that the USA Rights amendment could have passed if twenty-six of these Democrats had supported it.

The Intercept described the effects of the bill which was passed:

The law serves as the legal backing for two mammoth NSA programs revealed by Edward Snowden: Upstream, which collects information from the internet junctions where data passes into and out of the country, and PRISM, which collects communications from U.S.-based internet companies like Google, Microsoft, Apple, and Yahoo.

The programs rest on the notion that they are “targeting” foreigners, but they collect massive amounts of data on Americans as well, including wholly domestic communications. Amazingly, the intelligence community has never disclosed how much. Numerous members of Congress have requested an estimate since 2011, but both the Obama and Trump administrations have refused to provide one.

The bill also consolidates the FBI’s legal authority to search those communications without a warrant. Under current rules, the NSA shares certain kinds of information it collects under Section 702 with the FBI, whose agents can then search it in the course of investigating crimes unrelated to national security. In a secret court hearing in 2015, a lawyer for the Justice Department compared the frequency of those searches to the use of Google.

The American Civil Liberties Union issued this statement:

The House voted today to give President Trump and his administration more spying powers. The government will use this bill to continue warrantless intrusions into Americans’ private emails, text messages, and other communications.

No president should have this power. Yet, members of Congress just voted to hand it to an administration that has labeled individuals as threats based merely on their religion, nationality, or viewpoints. The Senate should reject this bill and rein in government surveillance powers to bring Section 702 in line with the Constitution.

Of course there is little chance of stopping this in the Senate either.  Rand Paul and Ron Wyden have sponsored a Senate version of the USA Rights Act.

There was one amusing aspect of this with Donald Trump again showing he has no understanding of the legislation before Congress. Trump initially put out a tweet opposing the bill after someone on Fox and Friends had said that the FISA Act had been used to justify surveillance of him based upon the Steele Dossier. He later reversed this after someone explained the position of his administration to him regarding the legislation.

This turned out to be only the second most stupid thing said by Donald Trump today. Later in the day this president with a shithole for a brain referred to Haiti and African countries as shithole countries.

A Very Bad Ten Days For Donald Trump

Donald Trump’s presidency appeared to be on a path towards disaster from the beginning, considering his lack of respect for democratic norms and a lack of understanding of the position. What is remarkable is how much has gone wrong in just over a week, and how much of the damage was self-inflicted. If Richard Nixon had used twitter as Donald Trump does, the Watergate investigation might have been wrapped up in half the time.

David Graham has a good chronology at The Atlantic. This is a condensed summary:

May 8: Former Acting Attorney General Sally Yates appeared before Congress contradicting White House statements about Michael Flynn’s firing as national-security adviser.

May 9: Trump fired FBI Director James Comey who was investigating his administration.

May 10: The Trump administration changed its account regarding the reasons for firing Comey. Press reports concentrated on Trump firing Comey because of the Russia investigation and because of him contradicting Trump’s claims that Barack Obama had wiretapped him.

May 11: The Economist published an interview with Trump which showed him to be ignorant of economic policy.  Later the same day Trump gave an interview to Lester Holt of NBC News which directly contradicted the vice president and White House spokeswoman,  and admitted that the Russia probe was a factor in Comey’s dismissal. There were also reports that Trump had previously demanded a pledge of personal loyalty from Comey.

May 12: Trump appeared to threaten Comey, suggesting their conversation might have been taped. Later that day Trump released a letter from his lawyers to claim that he did not have business ties with Russia. The letter was widely mocked for mentioning “a few exceptions,” and tax experts said the letter proved nothing.

May 15:  Politico published a story saying Trump staffers were routinely passing him fake news stories, both to manipulate him and out of fear that the real news would upset him. Later that day a story in The Washington Post reported that Trump had shared highly sensitive classified information with the Russian foreign minister and ambassador which was obtained from an ally.

May 16: The New York Times reported that the the source of the intelligence is Israel. They also reported on a memo previously written by James Comey which quotes Trump as asking him to drop the FBI investigation into Flynn and his ties to Russia.

If matters were not bad enough in this summary as posted, today Robert S. Mueller III,  FBI director from 2001 to 2013, was appointed as as a special council to investigate possible coordination between Trump associates and Russian officials. While Democrats had been speaking of impeachment, and op-ed writers at The New York Times were suggesting that Trump is a criminal president, today also marked the day that the first Republican Congressman, Justin Amash, spoke of impeachment:

Republicans are beginning to talk of the possibility that President Trump could face impeachment after reports that he pressed ousted FBI Director James Comey to end an investigation of former national security adviser Michael Flynn.

While Republicans are choosing their words carefully, the fact that impeachment is even being mentioned is notable in Washington’s polarized political environment.

Rep. Justin Amash (R-Mich.) on Wednesday said if the reports about Trump’s pressure on Comey are true, it would merit impeachment.

There is reason to be skeptical of the claims of actual collusion between Trump and Russia to interfere with the election. Shattered did show how Hillary Clinton did grasp onto Russia as an excuse for losing the election and to avoid taking personal responsibility.  While there has been no evidence seen so far of collusion to affect the election, we do know that there have been questionable actions involving members or former members of the Trump administration and Russia. Russia does have a history trying to interfere in foreign elections (just as the US does). Regardless of whether there was actual collusion to affect the election, it would be wrong for a president to fire the FBI director for investigating members of his administration, and wrong to demand an oath of personal loyalty.

Trump Continues To Receive Criticism For His Attacks On The News Media

Donald Trump’s attack on the media as an enemy of the American people has received widespread criticism. Carl Bernstein has called Trump’s attacks on the media worse than those which came from Richard Nixon:

“Trump’s attacks on the American press as ‘enemies of the American people’ are more treacherous than Richard Nixon’s attacks on the press,” former Washington Post reporter Carl Bernstein said Sunday on CNN.

Trump’s comments — made publicly, whereas Nixon attacked his enemies in private — brought to mind “dictators and authoritarians, including Stalin, including Hitler,” Bernstein said.

He immediately walked back a comparison to the Nazi leader, while doubling down on the comparison to Nixon.

Bernstein — whose reporting of the Watergate break-in and coverup helped bring about Nixon’s resignation — said Trump’s rhetoric is potentially more dangerous than Nixon’s attacks on the news media.

“There is no civic consensus in this country like there was at the time of Watergate about acceptable presidential conduct,” Bernstein said on “Reliable Sources.”

“Trump is out there on his own, leading a demagogic attack on the institutions of free democracy,” he said. “We are into terrible authoritarian tendencies.”

“We’re not enemies of the American people,” Bernstein said on CNN. “In fact, we’re the last resort of the American people to a dictatorial and authoritarian-inclined president.”

Even Fox was critical of Trump, with Chris Wallace saying he crossed the line:

Fox News anchor Chris Wallace cautioned his colleagues and the network’s viewers Sunday that President Trump’s latest attack on the media had gone too far.

“Look, we’re big boys. We criticize presidents. They want to criticize us back, that’s fine,” Wallace said Sunday morning on “Fox & Friends.” “But when he said that the fake news media is not my enemy, it’s the enemy of the American people, I believe that crosses an important line.”

The “Fox & Friends” anchors had shown a clip of Trump recounting that past presidents, including Thomas Jefferson and Abraham Lincoln, had fought with the press. They then asked Wallace whether Trump’s fraught relationship with the media was a big deal.

In response, Wallace told his colleagues that Jefferson had also once written the following: “And were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Context was important, Wallace said. All presidents fight with the media, but Trump had taken it a step further in making them out to be “the enemy,” he added.

“Yes, presidents have always had — and politicians have always had — problems with the press. They want good press. The press doesn’t always give it to them,” Wallace said. “But what Jefferson [was saying] is, despite all of our disputes, that to the functioning of a free and fair democracy, you must have an independent press.”

My previous post on this subject quoted John McCain in criticizing Trump, along with other comparisons to Richard Nixon.

John McCain isn’t the only Republican who has been critical of Donald Trump recently. The Wall Street Journal has a story on how Justin Amash, a libertarian-leaning Congressman from Michigan, has emerged as “Leading Critic of Fellow Republican Donald Trump.”

President Donald Trump’s “constant fear-mongering’’ about terrorism is “irresponsible and dangerous.’’ He needs to “stop attacking the legitimacy of the judiciary.’’ He picked an attorney general with “anti-liberty” positions on surveillance and police seizure of property…

Mr. Amash says his opposition is based on principle, as a libertarian concerned about government overreach and adherence to the Constitution. While many Republican lawmakers hold similar beliefs, Mr. Amash has been an especially outspoken proponent of smaller government, even on issues—such as reducing surveillance—where his views put him out of step with the more mainstream elements of the GOP.

Opposition To Trump Could Cost Republicans Control Of Congress

I have said many times that the party winning the 2016 presidential election would very likely suffer for it, considering how flawed and unpopular both candidates were. If Hillary Clinton had won, most likely we would see Democrats lose further seats in Congress and the state legislatures in 2018 and 2020. Opposition to Donald Trump should help the Democrats, especially with Hillary Clinton not on the ballot. The elections will largely be a referendum on Donald Trump. Will Jordan recently showed that historically a president with an approval rating as low as Trump’s typically  loses thirty-nine House seats, with the Democrats needing twenty-four votes to retake the House. Larry Sabato had similar findings:

History is on the Democrats’ side: The president’s party has lost ground in the House in 36 of 39 midterms since the Civil War. The average loss is 33 seats, a shift in seats that would flip the House next year. Unpopular presidents can galvanize the opposition — and Democrats already seem highly engaged in battling Trump — and President Trump’s approval rating is already underwater in some polls, meaning he hasn’t had much of a honeymoon. Of course, there’s plenty of time for that to change, both positively and negatively for the president.

While it is far too early to be certain that Trump’s approval rating will remain at its currently low levels, there is considerable cause for concern among Republican House members. This is exacerbated by the complaints many are seeing from their constituents. CNN has reported on the anger at Republican town halls and  The Washington Post reports that Swarming crowds and hostile questions are the new normal at GOP town halls:

Republicans in deep-red congressional districts spent the week navigating massive crowds and hostile questions at their town hall meetings — an early indication of how progressive opposition movements are mobilizing against the agenda of the GOP and President Trump.

Angry constituents swarmed events held by Reps. Jason Chaffetz (Utah), Diane Black (Tenn.), Justin Amash (Mich.) and Tom McClintock (Calif.). They filled the rooms that had been reserved for them; in Utah and Tennessee, scores of activists were locked out. Voters pressed members of Congress on their plans to repeal the Affordable Care Act, on the still-controversial confirmation of Education Secretary Betsy DeVos and even on a low-profile vote to disband an election commission created after 2000.

House Republicans had watched footage earlier this week of McClintock’s raucous town hall in northern California and his police-assisted exit — a warning of what might come. And with Congress scheduled for a week-long recess and a raft of additional town halls starting Feb. 18, the warning may have been warranted…

Remembering how voter anger and heated town halls helped end Democratic control of Congress in 2010, Republicans have begun taking security precautions. Some have avoided in-person town halls, holding forums on Facebook or by telephone instead. Many were briefed on security recommendations for public events and their district offices at a closed-door meeting led by Rep. Dave Reichert (R-Wash.), a former county sheriff.

If the Democrats are to retake Congress, it will depend on Trump’s popularity remaining low. Pollsters such as Mark Blumenthal are looking at both whether it is likely to remain low, and how low it can go:

One striking characteristic of Trump’s initial job rating is the relative intensity of disapproval. In our most recent full week of tracking, for example, far more Americans strongly disapprove of the way Trump is handling his job (41 percent) than strongly approve (29 percent). That gap means that Trump’s overall 46 percent approval rating includes 17 percent who only “somewhat approve” of his performance…

One of the themes of new administration, as the NBC News Politics team recently noted, is how “Trump picks fights with, well, almost anyone.” Those stories help reinforce the perception of his toughness and outspokenness.

The downside of these “sprays of attack,” as CNN’s Jake Tapper called them, are the “sprays of falsehoods coming from the White House” that accompany them. These controversies help further reinforce negative perceptions about Trump’s honesty forged during the campaign.

A second theme has been the flurry of initial executive actions that helped drive the sense, especially among Republicans, that Trump can get things done. But note that relative softness in perceptions of effectiveness among Trump’s least committed supporters. As the NBC Politics team points out, executive actions aside, the Trump team has made little progress so far on his “big ticket agenda items (Obamacare repeal and replace, tax relief, paying for that border wall).”

Again, it is very early in the Trump presidency and the long term trends in his approval rating will be influenced by the direction of economy and by war, peace and scandal, or the lack thereof. However, if the initial flurry of executive action gives way to gridlock and legislative stagnation, perceptions of Trump’s ability to “get things done” may atrophy, and with it, his overall approval rating.

We don’t know where Trump’s approval rating will be in 2018 and 2020. There are many factors beyond the actual actions of the president, and if the country is doing well despite Trump’s actions, the Republicans will benefit. However, the first three weeks of Trump’s presidency give Republicans a lot to worry about.

Comparing The Candidates On Military Interventionism & Civil Liberties

Cruz Clinton

Democrats who ignore principle and support Hillary Clinton, despite her authoritarian right views, which are not far from those of the Republican candidates, generally ignore how far right she is on military intervention and civil liberties. If Clinton wins the nomination, she very likely will be as conservative as the Republican candidate on these issues, and possibly more conservative, which is rather disappointing for those of us who hoped to see the Democratic Party present a clear contrast with the Bush/Cheney era.

I recently looked at Clinton’s conservative record on civil liberties, including her being the only Democrat who refused to sign a pledge to restore Constitutional liberties in the 2008 election, her introduction of legislation to criminalize burning the flag in protest, and  how she falls significantly to the right of Antonin Scalia on civil liberties issues, and sounds shockingly like Donald Trump, the candidate of intolerance and authoritarianism,  in her disregard for freedom of speech. (Reason has a comparison of the views of Clinton and Trump posted today. Neither is acceptable.)

Ted Cruz has been seeking the libertarian vote since Rand Paul left the race. Cruz is mocked by libertarians for sometimes claiming to be a libertarian in the same manner which progressives mock Hillary Clinton for her claims to be a progressive. Both are conservatives, and both are far more authoritarian than libertarian.

Justin Amash, a libertarian-leaning Republican, is supporting Ted Cruz now that Rand Paul is out of the race. While he will never sell libertarians in believing Cruz is one of them, his discussion did suggest areas where Clinton is to the right of Ted Cruz on military interventionism and no better on civil liberties:

On civil liberties and foreign policy, Ted and I don’t always agree. But he was one of only ten Republican senators to stand up for our rights by supporting Rand Paul’s amendment to kill the Cybersecurity Information Sharing Act of 2015—also known as CISA—a cyberspying bill that violates the privacy of all Americans. And Ted has been a stalwart defender of our Fifth Amendment right to due process, strongly opposing the government’s asserted power to indefinitely detain Americans without charge or trial.

Like me, Ted believes that the United States must be well defended and respected around the globe. He stands with our troops and will not put them in harm’s way unless necessary to protect our country. Unlike some other Republican candidates, Ted opposed intervening in Libya and voted against arming Syrian rebels, and he will not use our Armed Forces to engage in nation building.

The failed intervention in Libya was the low point of Clinton’s tenure as Secretary of State and her position on Syria was a key issue where she differed from both Obama and Sanders. As for CISA, Bernie Sanders was strongly opposed, as he has opposed other legislation which would expand the surveillance state. Hillary Clinton, who is generally quite conservative on matters of government surveillance and censorship, repeatedly refused to answer questions as to her position while the Republican candidates, other than Rand Paul, all supported it. Amash was also overly kind to Cruz. While he might have voted for Rand Paul’s amendment, in the end Cruz voted for the act despite admitting he did not read it. Neither Clinton nor Cruz can be trusted on matters of civil liberties.

With the libertarian case of Cruz falling apart, this leaves us with Bernie Sanders as the only candidate now running who has been consistently opposed to both military interventionism and the surveillance state. While there is a strong case to be made that the risk of perpetual warfare is greater by electing Clinton, Sanders is the only candidate from either party who will prevent the expansion of the surveillance state.

House Votes To Place Limits on Backdoor Searches; Obama Administration Seeks Reauthorization Of NSA Surveillance

Thanks to the revelations in the material on surveillance released by Edward Snowden, the United States is  now taking baby steps towards reforming the system. Late in the week the House did vote to limit “backdoor searches.” The amendment received bipartisan support, showing how opposition to excessive NSA surveillance is an issue which does not fall under usual partisan lines. More Democrats than Republicans did vote in favor, Democrats voting it 158 to 29, with Republicans voting it 135 to 94 in favor.

Vox explained the significance:

What’s a backdoor search?

In 2008, Congress passed the FISA Amendments Act (FAA), which expanded the government’s warrantless surveillance powers.

Ordinarily, the Fourth Amendment requires an individualized warrant before the government can engage in surveillance on American soil. But the FAA created an alternative process where a judge can authorize entire surveillance programs without necessarily knowing which specific people will be surveillance targets. The PRISM program, which the NSA uses to obtain private information from companies such as Google and Facebook, was authorized under this provision of the FAA.

The George W. Bush administration argued that it needed this new power to spy on terrorists whose communications passed through the United States. The FAA included a provision barring the government from using the surveillance facilities to “target” Americans. The problem, civil liberties groups argue, is that “targeting” is defined in a way that doesn’t actually protect Americans. There are ways for the NSA to effectively spy on Americans without technically “targeting” them.

One example is what’s known as a backdoor search. In this technique, the NSA engages in wide surveillance of communications that involve both Americans and foreigners. So long as the foreigners are the official “target,” this is permitted under the FAA. The NSA sometimes stores the information it has collected in a giant database. And the agency has taken the position that it can search this database for information about Americans without running afoul of the no-targeting-Americans rule.

What does the amendment do?

Congress is considering a bill to fund the military for the 2015 fiscal year, and that includes funding for the National Security Agency. The amendment offered by Sensenbrenner and his colleagues and Lofgren prohibits the NSA from using any funds provided in the bill to “query a collection of foreign intelligence information” acquired under the FAA “using a United States person identifier.

In other words, it would ban the use of federal funds to conduct backdoor searches. In practice, that would make it illegal for the NSA to engage in backdoor searches during the 2015 fiscal year.

The legislation does allow such searches in cases where another court order has authorized surveillance of the American being targeted.

The legislation also effectively bars the NSA or the Central Intelligence Agency from forcing device manufacturers to install technical “backdoors” in their products.

Is that a big deal?

By itself, the amendment falls short of the kind of sweeping NSA reforms some civil liberties groups support. But the vote represents the first time a house of Congress has voted to curtail the controversial practices revealed by Ed Snowden last year. It will give NSA critics renewed political momentum and may force President Obama to make further concessions to critics of the NSA.

In August, Rep. Justin Amash (R-MI) offered an amendment to last year’s defense funding bill that would have shut down a different NSA program: the collection of Americans’ phone records. That vote failed in a razor-thin 205 to 217 vote. The surprising closeness of the vote was widely interpreted as a sign of congressional anger over the NSA’s actions.

Julian Sanchez, a senior fellow at the Cato Institute, argues that the vote is a rebuke to the House Permanent Select Intelligence Committee. That body is supposed to serve as a watchdog over NSA surveillance, but in recent years it has more often acted as a defender of NSA policies. The vote, Sanchez says, “demonstrates pretty dramatically that the gatekeepers in the Intelligence Committee are out of synch with the sentiment of the broader House.”

Sanchez also notes that similar language was stripped from the USA FREEDOM Act, legislation intended to rein in the NSA that wound up being substantially weakened during the legislative process.

Spencer Ackerman wrote more on why this is important  at The Guardian.

Meanwhile, TechDirt reports: a  group of Senators, Mark Udall, Ron Wyden and Martin Heinrich, sent President Obama a letter reminding him that he can live up to his promise to end bulk phone record collection today by simply having the DOJ not seek to renew the court order from the FISA Court getting the phone operators to hand over that data.

We welcome your proposal, announced on March 27, 2014, to end the bulk collection of Americans’ phone records under Section 215 of the USA PATRIOT Act. We believe as you do that the government can protect national security by collecting the phone records of individuals connected to terrorism, instead of collecting the records of millions of law-abiding Americans. We also believe that you have the authority to implement your proposal now, rather than continuing to reauthorize the existing bulk collection program in 90-day increments.

James Clapper’s office issued a statement that “the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced earlier this year.”

TechDirt responded:

Wait. Given what importance of maintaining the capabilities? So far, every analysis of the program has shown that it wasn’t important at all. How could anyone in the administration still claim with a straight face that the Section 215 bulk phone records collection is “important” when everyone who’s seen the evidence agrees that the program has been next to useless in stopping terrorism.

I imagine we will be returning to this in another ninety days to see if there is truly further progress in reforming the surveillance process from the Obama administration. Hopefully by then Congress also passes legislation containing the amendment preventing backdoor searches.