Chaos in Congress Downs the Patriot Act

It was fitting that we saw some curtailment of the Patriot Act in the same week as the second anniversary of Edward Snowden's outing of the NSA, and appropriate that dealing with it betrayed a government beset with confusion and disarray.

Mitch McConnell, clearly misreading the sense of the Senate and unperturbed by a federal appeals court finding NSA's data capture illegal, attempted to extend the Patriot Act unchanged for another five years. That was voted down. Then North Carolina's Richard Burr, who chairs Senate intelligence, went around his own committee to on his own put forth a two month extension to buy time. Also voted down. With the expirations plainly visible from a long way off, Burr and his committee had written no alternative bill.

In the face of a June 1 sunset for three sections of the Patriot Act, McConnell blundered by devoting the week before Memorial Day to the Pacific trade pact, which has no deadline, and then stunningly let the Senate take a weeklong break (for that same holiday America's working public gets just the one-day).

He instead called the Senate back for an unheard of Sunday session, on the eve of the expiration, a short timespan that allowed presidential candidate Rand Paul, his co-Senator from Kentucky, to again run out the clock on the Senate floor arguing that nothing should replace the expiring Patriot Act provisions, while his website promoted a Filibuster Starter Pack selling T-shirts and bumper stickers to fund his campaign.

That left the USA Freedom Act as the sole option, a bill already passed by the House by a resounding 338 to 88, an unusual bipartisan confluence that didn't register with McConnell. But the Senate wanted to tack on four amendments, which would have required a renegotiation with the House. More problematic, the House had barred amendments and if it were to allow consideration of Senate amendments, it would have to give its membership the same option, adding weeks and an uncertain outcome. So Speaker John Boehner laid down the law: no amendments, vote on it as is.

Came McConnell before the cameras to poutingly ask why his Senate isn't allowed to debate the bill and consider amendments, as if the schoolyard bully had just taken his lunch money. Again he was out of step. The Senators clearly didn’t care that much about those amendments. They passed the USA Freedom Act 67 to 32.

Evidence that the NSA's bulk phone data collection had been ineffectual carried little weight with lawmakers. They seemed to not want to hear that.

An agency created by Congress, the Privacy and Civil Liberties Oversight Board, had access to classified reports about how NSA used the data and its boasts of success. But the board found no instances in which it stopped a terrorist attack. “It has some minor benefits that could have been accomplished through other legal means”, said the board's chairman. But any lapse in "this critical tool would lead to attacks on the United States", according to Arkansas Senator Tom Cotton.

The Justice Department's inspector general report said its FBI agents "did not identify any major case developments that resulted from the records obtained in response to Section 215 orders".

Oblivious to this, McConnell said to reporters, "There are a number of us who feel very strongly that this is a significant weakening of the tools that were put in place in the wake of [the 9/11 attacks] to protect the country".

A group appointed by President Obama to review NSA practices concluded that the program of vacuuming up fourteen years of phone calls by everyone in the United States had accomplished close to nothing, yet one of the group's members, University of Chicago professor Geoffrey Stone, said , "It may be that it will, in fact, enable the government to prevent a terrorist attack. The fact that it hasn’t…doesn’t mean it won’t”.

Only one conviction arose from the trillions of phone records in all the years since 2001. A lengthy research piece in The New Yorker in January reveals this to be rather a sad case. Somalia-born Basaaly Moalin had as a teenager been shot several times by a solider entering his house after it was struck by mortar fire in Somalia's civil war. He spent four years in refugee camps in Somalia and Kenya before the U.S. granted him asylum and, eventually, citizenship and was living in San Diego when U.S. backed Ethiopians invaded Somalia to oust the Islamist Courts Union, the ruling group thought by the CIA to be al Qaeda connected. Moalin heard reports that the Ethiopians had tortured and killed five of his family members. He began contributing to a group that fought against the Ethiopians which later became allied with the terrorist group al Shabaab. Moalin was advised by friends to stop contributing, but didn't. He was caught and sentenced to 18 years in federal prison.

The USA Freedom Act leaves phone data with the phone companies, which NSA can access with the FISA Court order they were always supposed to acquire related to a specific investigation. Like global warming deniers who say "I'm not a scientist" but spout their beliefs anyway, politicians and commentators were not at all reluctant about exhibiting their lack of knowledge of how things work.

A Wall Street Journal editorial unabashedly tried to confuse its readers when it said the USA Freedom Act "pretends that such metadata will still be" but NSA will need to demand "specific information from the 1,400 global telecom providers, which may then turn over the records they’ve retained". NSA never pooled phone records from 1,400 global telecoms, only the eight in the U.S.

Journal columnist Daniel Henninger says Obama "rightly worried that requiring the NSA bureaucracy to interact with the telephone companies’ bureaucracies … will re-create the delays and vulnerabilities that produced the attacks on the World Trade Center towers, the Pentagon and Flight 93’s fall into Shanksburg, Pa.". This shabby scare tactic pretends that the new law requires that we revert to the technology of 14 years ago.

Strewing more more confusion , Henninger goes on: "Do I want the NSA to be able to find out what Elton Simpson has in mind before arming himself and another nut to attempt the slaughter of scores of people in Garland, Texas, or elsewhere? Yes, I do." The foreknowledge of Elton Simpson did not come from phone records. His lies continue with "a long list of of bureaucratic and judicial hoops for the NSA to jump through". There are rules what can be done with information obtained, but the FBI need only present to a FISA judge "reasonable grounds that the call detail records are relevant "and "a reasonable, articulable suspicion" that the party of interest is associated with a foreign power. Hey, read the Act.

In a Wall Street Journal opinion piece, Michael Mukasey, former Attorney General under George W Bush, describes

"a Rube Goldberg procedure that would have the data stored and searched by the telephone companies (whose computers can be penetrated and whose employees have neither the security clearance nor the training of NSA staff)… The government, under Mr. Obama’s plan, would be obliged to scurry to court for permission to examine the data, and then to each telephone company in turn".

All such comments show an abysmal lack of understanding of how computer communications systems work. Phone companies wouldn't do the searching, their employees would not be involved, and, yes, their computers can be penetrated — by NSA, armed with a FISA Court order that unlocks the special communication channel into a phone company's database for the extraction of the call records of a single target phone number, and within milliseconds, then reaches into other phone companies' data for numbers calling or called by the target's phone. That Mukasey cites a cartoonist who died in 1970 suggest he may be picturing the government ringing doorbells as how they go about getting data when he says "scurry[ing] to each telephone company". That Henninger writes of phone company bureaucracies says he thinks the data will be collected by clerks.

The Journal cites "a National Academy of Sciences group on signals intelligence stating 'there is no software technique that will fully substitute for bulk collection where it is relied on to answer queries about the past after new targets become known.' This is misleading; there is no full substitution right now because government has made no preparations. But there is right now a physical telecommunication conduit into every phone company else how would NSA have been able to collect all of our phone calls every day for the past 14 years?

Obama, who got no further than a Blackberry and just opened a Twitter account, doesn't show much greater savvy. He wants to create “an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data”, said a White House spokesperson. After all this time he hasn't caught on to how it can be done.

A Wall Street Journal editorial concludes, "The NSA's protective surveillance program is already an exercise in preserving liberty". In their view the best way to preserve liberty is to impinge on our liberty, seizing our personal effects unreasonably, to use the 4th Amendment's vocabulary. Say what you will about Rand Paul raising campaign money on the Senate floor, but when he asked, "Are you really willing to give up your liberty for security?", Benjamin Franklin's cautionary immediately came to mind: "They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety".