Senate Effort to Renew NSA Spying Powers Contains Provision to Stop Next Edward Snowden

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Senator Dianne Feinstein has proposed legislation to protect the National Security Agency from losing dragnet surveillance powers when Patriot Act provisions expire. But her bill would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.

As first reported by journalist Marcy Wheeler, the provision in Feinstein’s bill [PDF] is modeled after the Espionage Act, which President Barack Obama’s administration has aggressively relied upon to prosecute a record number of whistleblowers. (Snowden was indicted under the Espionage Act.)

The provision would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the US.

A person could be criminalized if they disclosed any information connected to an application to the FISA Court, an order approved by the court or information acquired under a directive issued by the court.

Knowingly communicating, transmitting and making available information to an “unauthorized person,” such as a journalist, would be criminal. Someone who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location,” as Snowden did before providing documents to journalists, would be violating the law as well.

Making information available to a reporter could potentially result in someone going to jail for ten years. Retaining documents at an unauthorized location could potentially result in a one-year prison sentence.

A similar provision was included in a bill introduced by Senator Richard Burr over the weekend. The bill was also drafted to protect dragnet surveillance powers.

Both Burr, a Republican who chairs the Senate intelligence committee, and Feinstein, a Democrat and former chair of the Senate intelligence committee, are powerful senators who have traditionally supported anti-leaks measures, which Senator Ron Wyden blocked in 2012.

Feinstein accused Snowden in June 2013 of “violating” his oath to defend the Constitution. She unequivocally stated, “He violated the law. It’s treason.” When Burr found about what Snowden revealed on mass surveillance, he was not concerned about the programs but rather about how a contractor like Snowden had access to so much material.

Jesselyn Radack, an attorney who has represented a number of whistleblowers such as Thomas Drake, Bill Binney, and currently represents Snowden, reacted, “Feinstein is the latest member of Congress to offer a non-compromise ‘compromise’ to replace the already-compromised USA Freedom Act. Her bill would essentially retain Richard Burr’s odious Section 215 mini-Espionage Act, imposing 10-year penalties on people like my NSA whistleblower clients Edward Snowden, William Binney and Thomas Drake, who told us what the intelligence community was really doing with the call records program.”

“The most disturbing aspect is the prospect of Congress codifying the Justice Department’s draconian use of the century-old Espionage Act into law when there’s a lot of validity that the Department has unconstitutionally applied the Espionage Act to whistleblowers.”

The provision contains no clear and present danger standard, which means it would not matter if a person knew the disclosure of information would result in no harm. The government would be under no obligation to present any evidence that a release of information caused grave damage or harmed anyone during prosecution. This would likely violate the First Amendment. (more…)

DNI Clapper’s Lawyer Claiming Clapper Lied To Congress Because He ‘Forgot’ About NSA Program

From the Department of you can’t be serious. The top lawyer for Director of National Intelligence James Clapper is making a novel argument as to why Clapper did not technically commit perjury despite saying something he knew to be untrue while testifying under oath before Congress – Clapper somehow “forgot” about a massive and highly controversial secret spying program he oversees. 

Yes, you read that right. The general counsel for the Office of the Director of National Intelligence, Robert Litt, is trying to get his boss out of trouble by claiming that the DNI had some kind of epic brain fart while testifying before Congress. Litt’s explanation is that Clapper “mistakenly” thought he was not running a global dragnet program that was vacuuming up private data from American citizens without a warrant when asked by Senator Wyden in a hearing before the Senate Intelligence Committee if he was doing just that.

Seriously, this is the current explanation.

Director of National Intelligence Jim Clapper wasn’t lying when he wrongly told Congress in 2013 that the government does not “wittingly” collect information about millions of Americans, according to his top lawyer. He just forgot. 

“This was not an untruth or a falsehood. This was just a mistake on his part,” Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday. “We all make mistakes.”

Slow clap for Clapper and his intrepid legal team. But just when you thought it could not get any more absurd you remember that Clapper had a completely different explanation for why he lied to Congress just after the Snowden leaks came out. Clapper’s first explanation for lying was not that he made a mistake but that he had strategically looked for the “least untruthful” answer to give without damaging intelligence operations.

So did he forget or did he lie to Congress under oath for what he believed was a good cause?