06/01/15 – Marcy Wheeler – The Scott Horton Show

Hey, Al Scott Horton here.
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Hey, how's it going, y'all?
Welcome back.
I got Marcy on the line.
Marcy Wheeler, that is.
Empty Wheel, they call her on the internet.
EmptyWheel.net.
And, man, is she good at understanding all these surveillance laws and news stories and bits and pieces and context and all these things that come out probably better than anybody that I could think of.
And that includes Snowden and Bamford and Greenwald.
She's the best of the best.
Welcome back to the show.
How are you, Marcy?
Well, that's awfully high praise, thanks.
And thanks for having me back.
Very happy to have you here.
You deserve it, of course.
So now, hey, great victory.
What am I missing?
Right.
Rand Paul, he killed three very bad parts of the Patriot Act last night.
Am I right?
The Patriot Act, three parts of the Patriot Act, actually, one isn't part of the Patriot Act, but it doesn't really matter.
Three counter, well, not even counterterrorism.
See, now I'm picking up the bad reporting.
Three things left last night.
They're likely, and he said, they're likely to be reauthorized in due course, in quick turnover.
Mitch McConnell is busy trying to weaken the USA Freedom Act before he passes it and sends it back to the House.
So we'll see how long it lasts.
But today, for the first day since 2006, your phone company is not sending your phone records to the NSA.
At least as far as we know.
Under that program.
Right.
They are.
They are.
The NSA still is collecting your, any calls you have internationally, because they get that overseas and they don't even have any rules about how they access that.
So there are very few rules.
Gotcha.
Well, as far as loopholes, is that pretty much it?
Just the just the overseas calls?
But there's not space in in I think you said this last time on the show.
There's nothing in the FISA Amendments Act or the Executive Order 12333 that that they could use to replace this particular thing of just Americans' domestic calls to each other.
Those records.
Is that correct?
You know, they could try and use the Penn Register Act.
I suspect that if they did, the telecoms would go for Verizon, at least.
AT&T, of course, doesn't care.
But Verizon would care.
And I think they'd fight that.
And it's not clear that they can get with Penn Registers everything they want to get in any case.
But, you know, they may try.
But with the Second Circuit decision, I think they have a hard time repurposing something like that without the telecoms at least being able to make pretty big things.
And then.
But so the overall secrecy here basically is not secrecy enough to be cover if they decided to just keep going anyway.
I mean, it took Snowden to tell us the truth of what was going on, right?
Right.
Yeah.
I mean, I think with the lapse, the ACLU won't have standing to go back to the Second Circuit right away until something's reauthorized.
But if, for example, one of the things Mitch McConnell is trying to do today is extend the transition period from six months under USA Freedom Act to a year.
And if he did that, you know, I wouldn't be surprised if the ACLU went to the Second Circuit and said, look, you know, you said it was illegal and yet they keep extending it.
And that's not right.
Is there any plausible reason why it should have to take that long?
Probably not.
It only took remember Yahoo Yahoo when they were setting up prison at Yahoo sued.
And even with them suing, it only took six months for them to start turning over records under U.S. under under the Protect America Act.
Now, arguably, this is more complex because you need to kind of go back and forth between the provider and the NSA.
But look, I mean, they had a very similar program in place with the FBI from 2002 until 2006.
So I don't see why it should take a year to recreate what the FBI, which is the most tech backwards, certainly then was the most tech backwards agency in government.
Ain't going to happen right now.
So what all does the USA Freedom Act do?
I mean, I imagine it's a couple of hundred pages or something, right?
That's just over a hundred and a big chunk of that is like is a implementation of a treaty.
So it basically makes it easier to go after pirates.
We're going to, you know, policemen of the world, we're going to go after pirates.
The short version is the government will no longer hold phone records.
There is a weak restriction on how much data the government can get under U.S. under Section 215, under Penn Register, under national security letters.
I think they're weak.
The reformers are really excited about it.
There is weak.
There are weak efforts to make the FISA court less dysfunctional.
Mitch McConnell is also trying to reverse those today.
And then there are stupid things like they're going to extend terrorism, material support for terrorism sentences.
So lots of goodies thrown in for the intelligence community.
Well, and I think you even have a piece here on EmptyWheel.net.
Well, at least according to the title, if I understand it right, that they're going to expand the definition of what's a terrorist, too.
That's something that Richard Burr, who's the Intelligence Committee chair, wanted to do.
That's not in anything that would go before the Senate today.
But it was pretty alarming because, I mean, A, I kind of think Burr reflects the id of the intelligence community.
You know, he's kind of giving voice to what they think they should have.
And they think they should be able to define anybody who makes a threat against the government.
I mean, effectively, but broadly interpreted.
And this is not outside the realm of what the FBI has done in the past against, you know, the people they entrap for terrorism.
But broadly speaking, they want they they tried for, you know, put it in his bill to define somebody who makes a threat and has a gun as a terrorist, which has all sorts of horrible ramifications if it ever were passed.
Now, it didn't, but still.
Yeah, well, I guess a handgun is a weapon of mass destruction, too, if that's what they want to call it, right?
And they've tried to do that before.
No, I mean, this is sort of this basically put a gun on the same level as weapons of mass destruction as one of those crimes that would get you called a terrorist and treated as a terrorist and called a terrorist before a jury.
Of course, the weapons of mass destruction thing, they apply it to things like pipe bombs as well.
So, you know, they've they've they've lowered the bar for what makes the terrorists so low.
It's it's really ridiculous.
Well, now, when we're talking about threats in this case, how specific does it have to be because the Brandenburg decision is the latest, most specific and overriding Supreme Court decision on free speech and they protect everything.
But let's get them in an immediate context.
Right.
So the way they do I mean, and again, this is not part of USA Freedom Act.
It's it's not before the Senate today.
It's just something that sorry, I took us off on this tangent because it's just interesting to me.
Well, no, I think it's really important.
And I think people should be really alarmed by it, because basically there are crimes of violence and they include things that are obvious, like rape or murder or attempted murder.
But they also include just the threat of violence.
And also drugs, and if you carry out a crime of violence.
Well, possessing a gun and you do it in a way that's considered anti-government, then they can label you a terrorist under under Richard Burr's bill, which isn't going to become law, but is nevertheless horrifying because that's the way the intelligence community thinks.
Right.
Well, and it's, you know, quite possibly coming down the pike one way or the other anyway, if, you know, obviously they thought of it already.
That's one of the reasons I raise it.
It's like if they are, you know, they're continuing to try and lower the bar for terrorism to things that would include, you know, conservative activists who happen to train with guns that could include looters who, you know, I'm not defending looting, but looting is different from terrorism.
But I could see them doing that.
So something people should be aware of.
Yeah.
And when they're conflating a pipe bomb with an H-bomb, that goes to show how much they value the meaning of words when it comes to getting what they want to.
We'll be right back.
It's Empty Wheel, EmptyWheel.net.
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All right, you guys.
Welcome back.
I'm Scott Horton.
It's my show, The Scott Horton Show.
Yesterday was Rand Paul's best day so far.
Eh, maybe I don't need to include so far.
I don't know.
He killed the Patriot Act, at least for a few days.
Well, he didn't kill the whole thing.
He killed a couple of important parts of it.
And but now, as we're discussing here on the phone with Marcy Wheeler from EmptyWheel.net, they're going to turn right around and pass the USA Freedom Act anyway.
I think I read Tuesday tomorrow would be the day for that.
But I guess I also read that Rand was going to try to add some amendments to that to, you know, I don't know, try to soften the blow somewhat.
Do you know much about that, Marcy?
Well, he has some good amendments, but thus far it appears that Mitch McConnell is only going to let his own amendments go through.
So, you know, ultimately what has happened and there's been a horrible reporting on this.
Mitch McConnell is the majority leader.
We all know that.
And Mitch McConnell made decisions going back to two weeks and frankly, long before to try and create an atmosphere of urgency so that he could make the reform bill, the USA Freedom Act, which I think is weak, but is better than nothing.
And so he created, he wanted to create this sense of urgency.
And Paul, meanwhile, wanted to kill the bill, to kill the Patriot Act.
And Mitch McConnell, that served McConnell's purposes until and frankly, there have been many times like after Paul finished this 11 hour filibuster, McConnell actually had a tiny window where he could have invoked cloture on the bill and chose not to do that.
When a week ago, Paul refused to pass a five day, it wasn't just Paul, it was also Ron Wyden and Martin Heinrich, when he prevented those short term bills from going through, McConnell could have immediately called the Senate back say last Wednesday and they could have had the USA, the USA Freedom Act passed and in place by last night.
McConnell didn't, chose not to do that.
So in point of fact, McConnell let, ran Paul last, the Patriot Act.
I think he would prefer to short term reauthorization, but it serves McConnell's purposes to create the sense of urgency.
Oh my gosh, we don't have a phone dragnet, say the terrorists are going to kill us.
What Paul did is give some more leverage in the House.
So in other words, I think if Paul hadn't done what he would have done, McConnell had bigger apps than what he put forward today.
And I think Paul prevented that from happening because he took McConnell's ability to create an entirely false sense of urgency out of McConnell's hand, McConnell gambled and lost basically.
I got it.
But, but, but ultimately, I mean, there are a lot of, there are a lot of reformers who are saying, oh, it's ran Paul's fault that this bill will become worse because of these amendments.
And, and that's wrong.
That's that just ignores what happened, what happened last night.
What happened last night is McConnell said, can we just pass a short term extension for for the roving wiretap and lone wolf provision?
And Paul prevented that from going forward.
But then McConnell, after USA Freedom Act got closer, McConnell did not and could have said, let's vote on USA Freedom Act right away.
McConnell did not do that.
So McConnell was the one who made that choice.
And he did so because he wants to get these amendments.
All right.
But now, so on whether the USA Freedom is better than nothing.
And I know you've written a lot against it and you changed the name of it a few times for freedom to some other effects, redux, some kind of thing I can't keep up with.
But the thing is, now we've got nothing.
Right.
So now that we're in the eye of the storm here in between the Patriot Act and the Freedom Act, maybe we could just kill the Freedom Act somehow.
And, you know, with tons of public pressure and then that way we would have nothing.
And that would be better than the USA Freedom Act.
Right.
Right.
And I think I think the worst that will happen is that all will have prevented McConnell from pushing through amendments that are worse than they could be.
So, in other words, and this is why it infuriates me, the people who really want USA Freedom Act are yelling at Rand Paul today.
I'm like, no, you know, you don't understand what McConnell had in plan.
And Paul prevented that from happening because now we have more leverage than we otherwise would have.
So I frankly think McConnell is probably been on the phone all day with John Boehner, figure out exactly what John Boehner thinks can go back to the House.
Because remember, this now has to go back to the House and it will lose votes in the House because people will be perceived as authorizing Section 215 anew when it doesn't exist right now.
So, you know, and I think I think Boehner, who has never been very good at counting votes, is probably trying his darndest to count votes, asking for Nancy Pelosi's help, which which is what he always does, to figure out exactly how many of the amendments that McConnell wants to push through actually will go through.
Yeah, well, so that really opens up an avenue for Americans and their pressure in a couple of ways there in that it's the House and that they have to go back all over again.
And that now, as you say, it's harder to kind of re-pass the thing than it is to stop it from sunsetting.
And so since they were able to to to let it sunset in the Senate, that kind of makes it harder in the House for them to kind of go back and redo the thing that's now been undone.
So, you know, I'm not always one for I don't believe much, I guess, in public pressure and calling your congressman and that kind of thing.
But then again, there are examples where it really does make the difference, where they get the idea that, gee, maybe the wind shifted and I better figure out what my position is going into my next election coming up here.
You know, we've got to try to appeal to them the only way that that works, which is their own self-interest.
Right.
And so the place where I mean, there is leverage in the Senate.
People should call their senator and say vote against all of Mitch McConnell's amendments.
They're all they all water down the already watered down USA Freedom Act.
But the other thing is, is there is, you know, if if that if there there were 88 people who voted against the USA Freedom Act the first time, 60 of whom signed a letter from John Lewis and Justin Amash saying this needs to get better, that number could grow.
And the question is, could it grow to 218?
Could it grow?
You know, could it grow to 250, which is where it would need to be to actually improve USA Freedom Act?
And I don't know the answer to that.
Yeah.
As it stands right now, because I'm getting mixed signals, I was trying to Google around and figure it out, but I couldn't figure out whether the ACLU supports the USA Freedom Act at this point or not.
They're neutral on the bill.
They are not opposing it, but they are also not endorsing it, which they did back in November.
Well, and this is the one that started out as a real reform and then it got all this stuff added to it.
Right now we're talking about adding even more.
Right.
It started off as real reform and then the intelligence community suckered people into adopting the intelligence community definition of bulk collection and then defining the anti-bulk collection around that, which I don't think is that effective.
And and then on the second go around, they threw in a bunch of garbage for the not garbage, but a lot of things that the intelligence community was asking for.
So, yeah.
All right.
Now, so this is sort of to rewind things for just a minute, but if we could go back to, you know, the the Snowden Hall here, what do you think is the most important thing, you know, that came out of this?
Is it just that they're collecting the phone records, the metadata?
I mean, I'm not saying that's nothing.
Obviously, it's equals a lot of information about people's lives and all that kind of thing.
But, you know, what is it that you think at least, you know, ought to be the average Joe's main takeaway from what has been revealed here?
From Snowden, look, I mean, the most important revelations from Snowden were that the government is watering down encryption that the government had broken into Google overseas.
I mean, we kind of already knew I already knew about backdoor searches, but because Snowden confirmed it, people also believe in it now.
I also think he revealed how much more data they're collecting on Americans overseas.
I mean, this is just an American viewpoint.
I think there are other really troubling aspects that he revealed.
And all of those things, you know, none of those things is the phone dragnet.
The phone dragnet is really troublesome, but it's also it's also just one part of the dragnet the NSA has.
And it in current form or in the form it existed in yesterday wasn't particularly effective for the NSA.
So, you know, Shane Harris had an article about a week ago where he quoted somebody saying that USA Freedom Act is a nothing burner because they already needed to fix the program.
This gives them a way to fix the program.
It gives them legal authorization they needed to get the telecoms to do what they want to do.
And I think that's about right.
I mean, I think that the NSA used this capitulation on Section 215 to, A, improve a program that wasn't working very well and B, throw the reformers off and and we'll see whether it works or not or we'll see whether the transpartisan coalition, you know, libertarians and progressives that you need to have working well together to actually fight surveillance.
We'll see whether that gets stronger because of this whole silly USA Freedom Act process.
But but that's that's where we're at.
But now that coalition needs to work better together if we're going to make progress on all the other problems with NSA spying.
Right.
And all those other problems are still there, right?
Like this is the the only reform we've gotten really at all so far and all the rest of their weaponization of all technology on Earth against the people of the planet, that's all still rolling right on.
Right.
Absolutely.
Man.
All right.
Well, it's a little bit of progress for a couple of days.
I guess we'll see.
Yeah.
All right.
Well, thanks very much for your time and all your great explaining, Marcy.
Appreciate it.
All right.
Great to be on here to talk to you.
Bye bye.
All right.
So that's the great Marcy Wheeler.
She is at EmptyWheel.net, EmptyWheel.net and EmptyWheel is also her handle on Twitter, too.
You can follow her.
We'll be right back.
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