The judiciary committee approved one of those draft laws – its version of the USA Liberty Act – and was surprised to find it attacked by the US Department of Justice as well as folks in the intelligence agencies as being "bad for the program," "unworkable," and that it would "effectively disband section 702."
The security services – in particular the NSA, the FBI, and Director of National Intelligence (DNI) – have been lobbying extremely hard to maintain the current system of warrantless spying on US citizens, a situation they claim is legal thanks to a number of highly dubious interpretations of the law that they themselves developed.
But that lobbying and a refusal to accept a warrant is required has backfired. A careful effort to use time pressure – the expiration of the law – to force lawmakers into passing what the security services wanted was blown out the water when Congress got caught up in an effort to pass tax-cutting legislation before the end of the year.
Last week, when it became clear that the time pressure may force Congress to approve a version of the law including warrants, a spokesman for the DNI suddenly revealed that the security services believe they can continue to operate the program for four months beyond the law's expiration at the end of the year.
It was a strategic retreat that Uncle Sam's snoops hope will give them time to lobby for a different result. It has also opened up the opportunity for more debate: which is why Wednesday's session of the House Judiciary Committee with Rosenstein was carefully watched.
It was, in large part, a waste of everyone's time. But that in itself is instructive: it now seems highly possible that Section 702 will not be reauthorized in time, or that if it is, it will include the warrant requirement.
Equally as noteworthy is the fact that both committee chairman Goodlatte and his Democratic counterpart Nadler refused to accept the argument put forward by Rosenstein as to why there shouldn't be a warrant requirement.
Of course, we would be remiss if we didn't point out that even under the USA Liberty Act as currently drawn up, Section 702 would: continue to allow the bulk collection of data on any and all US citizens; continue the farce that such information is gathered "incidentally"; allow g-men to continue using the term "query" to avoid Fourth Amendment protections on people's metadata; and lock in place dubious legal interpretations created by the security services themselves.
But, ignore all that: what about her emails?! ®
PS: Yes, that's the same Rosenstein who has a math-bending take on encryption.