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Before you jump on the H.R. 2399 Libert-E Bandwagon, Read the Bill: Reform or Institutionalization?

This morning, the Twitterverse is filled with replicating messages of support for H.R. 2399, the self-titled “Libert-E” bill introduced by Rep. John Conyers and Rep. Justin Amash. Four typical Tweets:

Amash leads challenge to NSA surveillance with LIBERT-E act:

Action Alert: Stop NSA Snooping with the LIBERT-E Act

Thanks @repjohnconyers & @justinamash for intro’ing the bipartisan Libert-E Act, HR 2399, to rein in PATRIOT 215 & combat secret law #NSA

So glad to see @RepSinema & @RepMattSalmon join on board with @repjustinamash with the LIBERT-E act! … #Bipartisanship

But hang on a minute. It’s more than a little early to be passing around the congratulations, action alerts and expressions of support. John Conyers hasn’t published anything about the bill on his House website, and Justin Amash has published a general press release describing the bill in very general terms but not providing the text of the bill itself. THOMAS, the Library of Congress website that will eventually publish the text of the bill here, hasn’t gotten around to it yet, at least not as of the morning of June 19. All these declarations and statements about H.R. 2399 are therefore occurring before the public gets a chance to read the bill, and that doesn’t seem right. Perhaps the most reasonable statement of the morning on Twitter is this request by Kathy Neiheisel: “@repjustinamash want link to actual bill LIBERT-E and summary.”

By poking around the back-ends of a few news websites, I’ve found a PDF version of H.R. 2399 here, and have transcribed it into a searchable text form here. Before you declare your support (or opposition) read the bill.

I’d like to know what you think of the bill. My own reaction is split and unsure. On the positive side, H.R. 2399 includes requirements that the executive branch regularly report to the Congress (and in a more limited form to the public) regarding the scope and extent of warrantless surveillance activities. The bill also contains some language that could be construed as containing warrantless searches to those that “pertain to an individual” under investigation, but that language may itself be limited. Consider also that the effect of the bill, in imposing minor constraints and reporting regulations, is to regularize, institutionalize and legitimize massive warrantless surveillance. Is what we want to receive regular reports on the warrantless surveillance, or for the warrantless surveillance to end?

Please read the bill and tell me what you think.

Update, 12:24 pm: Responding to requests, Rep. Justin Amash’s office has not only posted the text of H.R. 2399, but also added an interpretation of some of the more opaque sections. An excerpt regarding Section 2:

Section 2. Reforms to Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations. This section changes Section 215 of the USA PATRIOT Act in order to prevent the mass collection of business recordsthat are not material to an authorized foreign intelligence investigation, an international terrorism investigation, or clandestine intelligence activities.

  • Currently, in order to obtain a Section 215 court order, the government needs to show that the records only are “relevant” to such an investigation. Recent reports suggest that the government’s view of the “relevance” standard includes records of every telephone call on a
    given network.
  • This section would require that the governmentshow that the relevance of these records to the investigation is based on “specific and articulable” facts, that the records are material to the investigation, and that the records “pertain only to individuals under such investigation.”
  • The section removes a list of “presumptively relevant” records. The government should be required to show that the records it seeks are, in fact, material to a particular investigation.
  • The section also guarantees the recipient of a Section 215 order the right to challenge an accompanying gag order, and it ensures notice and due process for any such challenger.

13 thoughts on “Before you jump on the H.R. 2399 Libert-E Bandwagon, Read the Bill: Reform or Institutionalization?”

  1. Bill says:

    What would be really helpful would be to see a version of the text of the Foreign Intelligence Surveillance Act of 1978 red-lined to incorporate the changes proposed in this bill.

    1. Jim Cook says:

      I agree; as a stopgap, some commentary by Rep. Amash might be helpful (added just now).

  2. Dave says:

    I’d like for them to differentiate between “persons” and “citizens.” Makes all the difference.

    1. Jim Cook says:

      The 4th Amendment doesn’t differentiate in that way, though.

    2. F.G. Fitzer says:

      Yeah, Dave. Good point! “Persons” could include bottlenosed dolphins in U.S. waters, or as I like to call them, “marine illegals”.

  3. Dave says:

    U.S. Constitutional government has no authority over (or relevance to, for that matter) anyone but its citizens. Jusayin.’

    1. Jim Cook says:

      That’s simply not true. The U.S. Constitution has authority:

      1) over all actions of the the United States government, for which the Constitution is the supreme law of the land; and
      2) over all people in the jurisdiction of the United States.

      These two categories include but are not limited to actions taken toward citizens.

      1. Bill says:

        I’d have to go with Jim on this one. The constitution empowers Congress to pass laws and the Executive Branch to enforce them. Foreign nationals on U.S. soil are subject to these laws. Interstate commerce is regulated even if the merchants involved are furriners. Congress can levy taxes on furriners and citizens alike. Habeas corpus and freedom of speech are as much rights of foreign visitors as of citizens. And so on and on.

      2. Dave says:

        Indeed. Foreign nationionals, however, are actually under the jurisdiction of the State in which they reside – a minor point. Guam, Puerto Rico, hmm.

    2. Peregrin Wood says:

      Show me where the Constitution says that, Dave.

      1. Dave says:

        What I gather from reading the first paragraph, 14th Amendment: “Persons born or naturalized in the U.S. . . . are citizens.” It goes on from there to speak of the “privileges and immunities” of a “person,” and that person being “within the jurisdiction ot the States” shall not be deprived of liberty, property, etc. The context of person seems to be understood by the writer as citizen. The rest of the Constitution is not so clear on this, but that is one reason for this amendment. It seems to me that it speaks to the entire document. Bill makes a good point about furriners as guests in the U.S., and “persons” would apply to them, “citizens” would not. When they go home, person that they may be, our Constitution offers them no privileges or immunities.

  4. Tom says:

    It’s interesting how we still think the Constitution is “the law of the land” when it clearly isn’t any longer.

    1. J Clifford says:

      The Constitution is the law of the land. The question is whether the United States of America is a land of laws any longer.

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