Barr and Trump United in Opposition to Spy Bill — But The Reasons Raise Questions

By Janet Phelan

Attorney General William Barr has reversed himself and is now urging Congress to vote down the surveillance reauthorizations in HR 6172.

Stating that the Lee-Leahy amendment, added to the Bill when it went to the Senate last week, provided problematic stipulations to FISA proceedings, John Demers, head of the Justice Department’s National Security Division, added his voice to those demanding that the surveillance authorities embedded in Section 215 and 702 of the USA PATRIOT Act be voted against.  As stated in the Politico article, Demers “ said stricter requirements about the accuracy of FISA applications would be onerous.”

President Trump, who initially appeared to be undecided as to whether or not he would veto the Bill, has now firmly stated that, should Congress pass the amended version, he would veto it without question.

The initial version of HR 6172 was passed by the House in March.  That version essentially reauthorized three separate surveillance provisions—the collection of business records, the “roving wiretap” provision and a peculiar section termed the “lone wolf” provision, wherein a target suspected of terrorism with no discernible connections to terrorist organizations could nevertheless be surveilled.

It is thought that this is the provision under which most watchlisted Americans fall, even though the FBI has asserted that this provision has never been used.

AG Barr initially supported that version of the Bill, which then went to the Senate, where it was deferred for a couple of months. When the Senate began to debate the Bill in May, several amendments were considered. The Lee-Leahy amendment, adding an amicus curiae in certain circumstances where religious leaders, political figures or members of the press were subject to the secret FISA proceedings, was affirmed by the Senate  and the amended Bill subsequently went back to the House for a vote. The Lee-Leahy amendment also added other stipulations intended to ensure that FISA was receiving accurate information in requests for surveillance.

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It is this amendment which appears to have queered the deal and resulted in Barr’s reversal.

OTHER LEGAL AUTHORITIES ALSO PERMIT SURVEILLANCE

However, other laws, separate from the USA Patriot Act, give the government other mechanisms to surveil  Americans. Here are some of those mechanisms listed by the Electronic Freedom Foundation:

  • Pen Registers: These allow the government to collect “dialing, routing, addressing, or signaling information” including telephone numbers dialed and Internet metadata such as IP addresses and email headers. There are two pen register statutes, one for foreign intelligence surveillance and one for law enforcement. Both rely require only that the pen register be likely to obtain information relevant to a national security or criminal investigation respectively. Until the end of 2011, the NSA used the Foreign Intelligence Surveillance Act (FISA) pen register statute to conduct mass surveillance of Internet metadata, much as it still uses Section 215 for mass collection of telephone records.
  • The Pre-Patriot Act Business Records Provision: Before the passage of the Patriot Act in 2001, FISA contained a provision allowing the government to obtain business records from transportation carriers and storage facilities. Harley Geiger of the Center for Democracy and Technology has pointed outthat under a June 1 sunset, FISA would simply revert to this provision.
  • An ECPA “D Order”:Under Section 2703(d) of the Electronic Communications Privacy Act (ECPA), the government can get a court order for information from ISPs or other communications providers about their customers, including the sorts of metadata the government gets with Section 215. To get a D Order, the government must provide “specific and articulable facts showing that there are reasonable grounds to believe that . . .  the records or other information sought, are relevant and material to an ongoing criminal investigation.”
  • Grand Jury Subpoenas: Given that Section 215 explicitly says that the FISA Court (FISC) “may only require the production of a tangible thing if such thing can be obtained” with a grand jury subpoena, it’s apparent that a grand jury subpoena is a reasonable substitute, at least where a grand jury can be convened.
  • National Security Letters (NSLs):Similar to subpoenas, NSLs allow intelligence agencies to collect records from a range of entities including telecommunications providers, financial institutions, credit reporting bureaus, travel agencies and others. Nearly all NSLs include self-certified gag orders, which EFF has successfully challenged as unconstitutional. Nevertheless, the FBI and other agencies can use NSLs to collect much the same information as Section 215, although the government has also misused NSLs to obtain communication records not authorized by the NSL statute.
  • Administrative Subpoenas: Many federal agencies have the authority to issue subpoenas for customer records in their normal course of business. These authorities are extremely widespread, comprising 335 different statutesby one count.
  • FISA Warrants:Under FISA, the government can get warrants from the FISC for electronic surveillance and physical searches in the context of national security investigations. Although these require a higher showing—probable cause—statistics compiled by EPIC show the FISC routinely issues them, and has done so since FISA was passed in 1978.”

SURVEILLANCE CONTINUED AFTER THE LAW EXPIRED

When HR 6172 passed the House and went to the Senate in March, the fact that the Senate did not vote on the Bill meant that the reauthorization provisions expired. From March until now, these laws cannot be used to listen and watch. However, the surveillance apparently did not stop.  According to a watchlisted Canadian, Dr. Louis Fournier, a Harvard PhD and retired professor of literature, his watchlisting became more intense. Talk show host Frank Allen, whose nightly broadcast on Republic Broadcasting network, Targeted Massachusetts, often focuses on targeting issues, has also stated that his own watchlisting was not impacted when the legal authorizations expired. NSA whistleblower and activist Karen Melton Stewart has also reported that nothing changed in terms of her watchlisting during the period when the law expired.

These reports raise questions as to the actual legal authority that is buttressing the Fourth Amendment violations and intrusiveness that have become endemic to America, as well as to other developed nations. Those attending closely to the legal system have voiced concerns that when protective legislation is passed, it often falls prey to a failure to enforce. The laws on the books may in many cases be quite adequate but if underground guidelines are at play and if law enforcement officials are ignoring the law, then the protective laws may as well not exist.

In addition, judicial immunity translates to protection for judges when they ignore existing law and “wing it,” in effect making it up as they go along. Given these propensities in the American legal system, one might wonder if these privacy violations, so necessary to the surveillance state, have any authority in law whatsoever.

According to the most recent news reports, the House has pulled the Bill. CNN reports that “… the House voted 284-122 to enter into a conference committee with the Senate to negotiate a new version of the bill.”


Janet Phelan is an investigative journalist and author of the groundbreaking exposé, EXILE. Her articles previously appeared in such mainstream venues as the Los Angeles Times, Orange Coast Magazine, Long Beach Press Telegram, etc. In 2004, Janet “jumped ship” and now exclusively writes for independent media. She is also the author of two collections of poetry—The Hitler Poems and Held Captive. She resides abroad. You are invited to support her work on Buy Me A Coffee here: https://www.buymeacoffee.com/JanetPhelan

Image: The Times of Israel

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