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  January 17, 2018

#TheAssistance: Democrats Hand Trump Warrantless Spying


Fifty-five House Democrats, including #Resistance stalwarts, have joined Republicans to give Trump's NSA broad warrantless surveillance powers. The Senate is likely to follow. We speak to Trevor Timm of the Freedom of the Press Foundation.
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biography

Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that protects and defends journalists and whistleblowers. His writing has recently appeared in the New York Times, Guardian, USA Today, the Intercept, NBC, and Columbia Journalism Review.


transcript

AARON MATÉ: It's The Real News. I'm Aaron Maté. Congress is facing a decisive test on warrantless spying. By all indications, it appears Democrats will help Trump and the Republicans entrench the surveillance state. The process began last week, when the House passed a reauthorization of key provisions of the Foreign Intelligence Surveillance Act. Congress members rejected an amendment that would have required the NSA to obtain a warrant before spying on US citizens.

55 Democrats joined Republicans to defeat the amendment, including vocally anti-Trump Congress members, like Nancy Pelosi, Adam Schiff and Eric Swalwell. The measure is now up for a Senate vote where it will also need Democratic support to pass. If that happens, the ACLU warns that Trump's government will be handed quote,"Greater authority to spy on Americans, immigrants, journalists, dissidents, and everyone else."

Trevor Timm is a co-founder and Executive Director of the Freedom of the Press Foundation. Welcome, Trevor. First, explain to us what exactly is at stake here with this vote.

TREVOR TIMM: Sure. So, the FISA Amendments Act, which was passed in 2008 after the first warrantless wiretapping scandal under the Bush administration, basically gives the NSA the ability to spy on communications between Americans and anyone they're talking to overseas. And so, they have huge, huge databases of an untold number of telephone conversations and emails between Americans and people internationally. And civil liberties groups have been saying for years that this bill was unconstitutional for a few reasons. First, the FBI always goes back into these conversations and searches for American communications after the fact, and they don't think they need a warrant for it. And then what they're also doing is what's called "about" searches, where they are taking huge databases of emails that involve Americans and not searching for a particular person who's talking but searching for search terms or key indicators that maybe they say Osama bin Laden or Vladimir Putin in their email and are searching millions and millions of emails for this information. And this is clearly a violation of the Fourth Amendment.

The Congress had an opportunity to fix this bill because it's up. It expires at the end of this week. But instead of reining in these potential abuses that, of course are now controlled by Donald Trump, unfortunately, 55 Democrats voted with Republicans to not only extend this bill, but to actually codified these controversial powers and make it much harder for Americans to challenge them in court.

AARON MATÉ: So, the measure is ostensibly targeted at communications with foreign nationals, right? But explain more how this could be used against people domestically. For example, it includes language that says that any threats to infrastructure could result in a warrantless surveillance. Correct?

TREVOR TIMM: Right. It's actually even worse than that. So, ostensibly, as you mentioned, this is supposed to target foreigners. But even back in 2008, representatives were talking about how the real reason to pass this bill was to allow the FBI and NSA to collect American communications who may be talking overseas. And while they are only supposed to target the foreign national under specific criteria. Terrorism is one but there are several others.

They can then go back into this database and search for all the American communications that they scoop up for any reason whatsoever. And so that's why you saw the ACLU warning this week that the FBI or the DHS could search the database for looking for immigrants who are communicating with their relatives overseas that may have gotten swept up in this communication. They could go back and look for journalist communication. There is really no restrictions whatsoever on the types of, we call them, "back door searches," which they could do after the fact.

And this is the real potential for abuse that we have here and there are no controls at all for it right now. And the bill that Democrats and Republicans put forth that would fix this problem was unfortunately voted down.

AARON MATÉ: Right, and voted down with the vote of many Democrats that I mentioned, including Nancy Pelosi. So, let's talk about this aspect, Trevor, because it's been pointed out. Glenn Greenwald wrote a piece on it for the Intercept, just pointed to the contradiction between all these people who have been voicing concern for the past year that Donald Trump was an authoritarian who's possibly controlled by a foreign power, now voting to hand that same person these extensive surveillance powers.

TREVOR TIMM: Yeah. I mean, this is the real shameful thing about this vote. A lot of these Democrats supported this law when Obama was president, which was also shameful. But here we have a president in which we have the kind of worst case scenario, where these Democrats themselves have been warning that Trump is an authoritarian, tyrannical, abusing his power, using the Justice Department and the FBI to go after his political enemies. And yet, at the same time, they are willing to hand these expanded spying powers that can be used against Americans who aren't even under investigation or even accused of a crime. And yet, they seem to be perfectly willing to do so.

I mean, Adam Schiff, for example, was on Meet the Press the Sunday before this vote. His whole interview, I'm sorry, he was on CNN with Jake Tapper and his whole interview, he was talking about how the Trump Justice Department and Jeff Sessions were abusing their power to go after the Clinton Foundation, to go after Hillary Clinton herself and Trump's perceived political enemies. Yet, here he is willing to hand this power over to Donald Trump in which there is a provision that literally prevents people from challenging this in court.

So, it's both hypocritical and shameful that these specific Democrats won't stand up for the civil liberties of Americans.

AARON MATÉ: You know, speaking of Adam Schiff, the group Fight for the Future has announced a campaign where they're going to run ads against Democrats who vote to hand these surveillance powers to the government. That includes Adam Schiff. They've already released a mock-up of what that billboard would look like. And you know, on this front, I also want to talk about the media reaction. You mentioned CNN. So, on MSNBC on Thursday, I watched it for a few hours the night of the House vote that rejected the amendment to limit warrantless spying to see if there would be any coverage of it.

So, Rachel Maddow didn't touch the story. And then in the hour before, All In with Chris Hayes was guest hosted by Joy-Ann Reid and the only opinion that was voiced about the House vote was Benjamin Wittes, who was a fellow at the Brookings Institute and also the Editor in Chief of Lawfare, and he said that Congress had done the right thing.

BENJAMIN WITTES: Well, so, the damage was, as it turned out, limited. Congress actually did the right thing and was not especially moved or swayed by this. On the other hand, this was a situation, very rare situation, where the president tweeted a lie and a conspiracy theory by way of undermining a critical national security program that is considered by his own administration to be the top legislative national security priority.

AARON MATÉ: So, that's Benjamin Wittes, the Editor in Chief of Lawfare saying Congress did the right thing to reject limits on warrantless surveillance. Trevor, what he's referring to there was President Trump's interesting tweet the morning of the vote, when first upon watching a Fox and Friends segment that was critical of warrantless spying, he tweeted out a statement critical of warrantless spying. Then apparently, he was told by his staff and also House speaker, Paul Ryan who called him, explained why he thought the vote was necessary. After that, Trump tweeted out something else saying that, “actually no, this is great and we need this.”

But going back to the spying on activists, let me throw out a couple of examples. So, for example, I mentioned infrastructure before. So if, for example, people are planning a protest against a pipeline, which could be considered infrastructure, could that become the target of warrantless spying? And also, say someone is texting and they mention ISIS, because they're talking about ISIS. Could that lead to someone being swept up in an investigation?

TREVOR TIMM: Well, you know, that's the exact problem with this bill is that they target foreign nationals for specific information, supposedly. But then after the fact, they can then go in and search for any American communications they pick up for anything that they so choose. So, it can be for pipeline protests or immigration issues or anything like that. But this whole controversy over the Trump tweet is incredibly frustrating because everyone pointed out that Trump was tweeting a conspiracy theory with his first tweet, was inaccurate, which was right. But then when he went back to his second tweet and said that this was only about spying on foreign targets and that this was absolutely critical, and that they should vote down the privacy protective bill, that was just as false.

There was nothing in this bill, the USA Rights Act, that would have actually protected Americans that would have affected their ability to spy on foreign targets. The only thing that this bill would have done would have been protect the innocent Americans that get swept up in this after the fact from having the FBI spy on them without a warrant. And again, it's not that the FBI could never get this information. All they would need to do was get a probable cause warrant, like as required under the Fourth Amendment. So, the whole tenor of this debate has been so misleading and it's disappointing that so many so called resistance leaders who had been championing the ACLU early on in the Trump administration chose to ignore the ACLU's warnings in this case.

AARON MATÉ: You know, one Republican senator who some members of the resistance have welcomed into the fold is Jeff Flake, who has been very critical verbally of President Trump, partly because he is retiring after this term. And there's news now, this week, that he will give a speech on the Senate floor comparing Trump to Joseph Stalin and comparing Republicans who support Trump to Stalin's apologists. One wonders how Flake is going to vote and whether or not he's going to give the man who he likens to Stalin expanded powers of surveillance.

But, what do you make of the politics of this, Trevor? Do you think that there's going to be enough votes in the Senate? Enough Democrats are going to join with Republicans to approve this?

TREVOR TIMM: You know, unfortunately, I do. It should be mentioned that there were a lot of Democrats who were on the right side of this issue, Representative Ted Lieu, Ro Khanna, Zoe Lofgren in the House. They have all been warning about these issues for years, both under Obama and now under Trump. And a majority of Democrats actually did vote for the privacy protective USA Rights Act. But it's the leadership in the Democrats that are somehow in the minority here. It's Nancy Pelosi. It's Adam Schiff. Steny Hoyer. And they are the ones that are really protecting Trump.

And in the Senate, we can imagine the same things will happen. We have all of these Republicans who get all sorts of plaudits in the media for giving speeches about Trump but time and again vote for Trump's nominees and for his agenda. And as you said, Jeff Flake apparently was comparing Donald Trump to Joseph Stalin, yet is willing to hand this Joseph Stalin-like person expanded surveillance powers on Americans and it's just incredibly shameful, no matter which party it's in.

You know, there are a lot of Democrats in the Senate who I think will stand up for this. Ron Wyden was the author of the USA Rights Act and Bernie Sanders and Elizabeth Warren have already spoken out about this. Somewhat tragically and ironically, Martin Luther King Day was just yesterday and now, the day after Martin Luther King Day, of course Martin Luther King was spied on by both the FBI and NSA, a lot of Democrats and Republicans alike who were celebrating his legacy are going to vote for what amounts to a domestic surveillance bill.

AARON MATÉ: You know, it's funny. James Comey, who directed the FBI, the same agency that spied on Dr. King, he tweeted out that he was reading King's old letters from when Dr. King was in jail in Birmingham. But this came days after Comey also tweeted out his opinion that Congress should pass this expanded surveillance and reject limits on warrantless surveillance.

Trevor, final thoughts as we wrap.

TREVOR TIMM: You know, there is still a chance, even though it's an uphill battle. The Senate is supposed to make their first vote tonight. They need 60 votes to go forward with this legislation. And you can call your senator today to make your voice heard. Both EFF and ACLU have call tools on their front page, it’s really easy. They give you a script. You don't have to worry about being questioned about it or anything. But making your voice heard on this issue is incredibly important, especially given that who knows how Donald Trump will use these powers. S,o I would recommend that everyone, even if you are pessimistic about this, make the effort today before it's too late.

AARON MATÉ: Trevor Timm, co-founder and Executive Director of the Freedom of the Press Foundation, thank you.

TREVOR TIMM: Thanks for having me.

AARON MATÉ: And thank you for joining us on The Real News.



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