Elizabeth Goitein Profile picture
Co-director of the Liberty and National Security Program at the Brennan Center for Justice, erstwhile oboist, mom of seriously cute twins. Opinions are my own.
Aviva Gabriel Profile picture 𝔾𝕖𝕟𝕖𝕒𝕝𝕠𝕘𝕪 𝔾𝕚𝕣𝕝 Profile picture Potato of Reason Profile picture 3 added to My Authors
2 Sep
In yesterday’s markup of the National Defense Authorization Act, the House Armed Services Committee voted for three reforms that would help to prevent some of the improper uses of National Guard forces we’ve seen in the past year and a half. 1/14
First, the committee rejected an amendment that would have stripped @EleanorNorton’s D.C. National Guard Home Rule Act from the NDAA. That legislation, championed on the committee by @RepAnthonyBrown, transfers command of the D.C. Guard from the president to D.C.’s mayor. 2/14
As my colleague @josephanunn and I have explained, that’s a long overdue reform. Presidential command of the D.C. National Guard is a relic from an era before D.C. had any local government. 3/14 justsecurity.org/74098/why-d-c-…
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22 Jul
Today, @BrennanCenter is launching “9/11 at 20”—a series of ten essays offering a high-level critique of national security policies over the past two decades and a vision for our country’s approach to national security in the future. 1/5 brennancenter.org/9-11-at-20
The essays address a range of issues, from racial profiling to secret wars to the future of the Department of Homeland Security. The authors include past and present members of Congress, former senior executive branch officials, legal scholars, and Brennan Center experts. 2/5
The first two essays, posted today, include a call from former senator and current @ACSlaw president @RussFeingold for Congress to reclaim its role as an equal branch of government in national security policy… 3/5 brennancenter.org/our-work/analy…
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20 Jul
Today, @ChrisMurphyCT, @SenMikeLee, and @SenSanders unveiled the National Security Powers Act (NSPA), a bill that would begin to correct the power imbalance between the president and Congress on key issues of war and peace. 1/18 washingtonpost.com/national-secur…
The bill has three parts. The first part would inject life back into the War Powers Resolution, a 1973 law that was meant to constrain presidential warmaking but has utterly failed to do so. 2/18
The WPR required presidents to notify Congress when U.S. military forces are engaged (or will likely become engaged) in “hostilities.” It mandated an end to such hostilities within 60 days if Congress did not authorize them. 3/18
Read 18 tweets
1 Jul
Anyone who is concerned about government surveillance practices should stop whatever they’re doing and read this statement by Travis LeBlanc, a member of the Privacy and Civil Liberties Oversight Board (@PCLOB_GOV). 1/19 washingtonpost.com/context/statem…
His statement, released with redactions after the gov’t performed a declassification review, is a devastating takedown of the PCLOB's classified 2020 report on “XKEYSCORE,” a tool the NSA uses to process communications obtained without a warrant under Executive Order 12333. 2/19
The NSA doesn’t need a warrant to conduct surveillance under EO 12333 because the data is collected overseas and Americans can't be targeted. But no one denies that EO 12333 surveillance “incidentally” sweeps up Americans’ communications and data, likely in massive amounts. 3/19
Read 19 tweets
27 Apr
Another day, another FISA Court opinion approving a program that sweeps up millions of Americans’ communications, despite finding that the FBI has failed to comply with the rules meant to protect Americans’ privacy. 1/25 intel.gov/assets/documen…
To refresh your recollection, here’s my Tweet thread on the last FISC opinion (issued Dec. 2019) approving Section 702 surveillance in the face of widespread violations of privacy rules by the FBI and NSA: 2/25
Basically, the 2019 opinion chided the government for its violations, but the court approved the surveillance on the condition that the government implement new training and record-keeping requirements…3/25
Read 25 tweets
3 Apr
This statement by two PCLOB members suggests that PCLOB decided to abandon its original plan to conduct oversight of EO 12333 apart from its three "deep dives." In other words, they're not pretending the April 2 report constitutes EO 12333 oversight. 1/5 documents.pclob.gov/prod/Documents…
I suppose it's good that they recognize that. But why did only two members join this statement? The report itself should clearly state that PCLOB decided against pursuing a general EO 12333 oversight project, and the report is intended merely as an explainer for laypersons. 2/5
Moreover, PCLOB apparently concluded that a "very broad oversight review" of EO 12333 would be too resource-intensive. That might be true. But there are certainly discrete questions PCLOB could have explored (and still could!) that would produce enormous value... 3/5
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2 Apr
The Privacy and Civil Liberties Oversight Board (PCLOB) has issued its long-awaited “capstone report” on Executive Order 12333, which was six years in the making. All I can say is: what a colossal disappointment. 1/18 documents.pclob.gov/prod/Documents…
PCLOB can create value in two main ways: (1) by disclosing information about counterterrorism programs/practices that wasn’t previously public, and (2) by assessing the civil liberties implications of CT programs/practice and making recommendations. 2/18
PBLOB’s 2014 reports on the NSA’s bulk collection of Americans’ phone records (the “Section 215 report”) and on Section 702 surveillance served both functions. The EO 12333 “capstone” report serves neither. 3/18
Read 18 tweets
20 Jan
One of President Biden’s Day One executive orders terminates the national emergency declaration Trump used to circumvent Congress and divert military construction funds to build the border wall. 1/6
The declaration was a shameful abuse of power on many levels. It cited a fake emergency to sidestep Congress’s constitutional authority for the purpose of implementing a racist policy. 2/6
Terminating the emergency is step one. Step two is for President Biden to work with Congress to ensure that no future president can do what Trump did. Because Trump will not be the last president to succumb to the temptation of emergency powers. 3/6
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4 Sep 20
ODNI just released a FISA Court opinion from Dec. 2019 approving Section 702 collection for another year. The opinion reveals multiple violations by the FBI, NSA, and CIA of the rules that are designed to protect Americans’ constitutional rights. That should be shocking… 1/17
…but here’s the thing: we’ve seen this opinion a dozen times. The government comes before the FISA Court and details all of its violations. The court lightly chides the government for both the violations and for the delay in reporting them… 2/17
…it then grants the government’s request to lift or weaken the rules – sometimes the very ones the government has broken. And it concludes that the program is constitutional despite systemic non-compliance with the rules that supposedly render it constitutional. 3/17
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30 Jul 20
President Trump just became the first president in our country’s history to suggest postponing a presidential election. Elections were held on schedule, and without question, during the War of 1812, the Civil War, the Spanish flu, and World War II. 1/4
Make no mistake: this is the behavior of an autocrat. The law is crystal clear that the election must happen on November 3. Only Congress can change that date. And the Constitution says the president’s term ends on January 20, 2021 – no exceptions. 2/4 static1.squarespace.com/static/5e70e52…
The @BrennanCenter has catalogued all the powers available to the president in a national emergency. Not one allows the president to delay an election. That’s because no emergency could pose a bigger threat than allowing POTUS to mess with democracy. 3/4 brennancenter.org/our-work/resea…
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21 Jul 20
You don’t have to be a legal expert to know that when unidentified federal forces wearing military fatigues snatch people off the streets into unmarked vans, it’s an abuse of power. Still, it’s worth spelling out what rules Trump is getting around and how. 1/14
From the moment he was elected president, Trump has been itching for an excuse to “send in the feds” to “take over” states or cities with Democratic leaders. The threats started even before inauguration. 2/14 washingtonpost.com/news/post-poli…
Of course, in this country, the president can’t just “take over” states and cities. Although Trump seems not to know it, the federal government’s powers under the Constitution are limited. So Trump and his Attorney General have been trying out legal loopholes. 3/14
Read 14 tweets
11 Jun 20
Trump just declared another national emergency. The “emergency” in question is – wait for it – the efforts of the International Criminal Court to hold U.S. personnel accountable for alleged war crimes committed in Afghanistan, including torture of detainees at black sites. 1/15
The declaration freezes U.S.-based assets of any foreign ICC personnel who try to exercise jurisdiction over U.S. war crimes, & anyone who assists them. Also, Americans face criminal penalties if they have any financial transactions with such people. 2/15 publicpool.kinja.com/subject-execut…
This is a grotesque abuse of emergency powers, on par with the president’s declaration of a national emergency to secure funding that Congress had denied for building a border wall along the southern border. 3/15
Read 15 tweets
31 May 20
Some required reading – and a few thoughts of my own – on Trump’s threats to send federal troops into U.S. cities in response to the protests. 1/13
On whether Trump has the legal authority to deploy troops (spoiler alert: yes), see this pithy thread by @steve_vladeck… 2/13
…and this excellent post by @marknevitt on @just_security, which also goes into the rules of engagement once troops are deployed: 3/13 justsecurity.org/70482/the-pres…
Read 13 tweets
28 May 20
It would be a mistake to go straight to the question of whether the policy articulated in the president’s draft executive order, which sets out to limit immunity for social media platforms that restrict access to content, is the right one. 1/6
That debate is important, but Congress has already weighed in and provided broad immunity. It passed a law. Some members want to change that law, but so far, they haven’t been successful in convincing a majority of Congress to go along. 2/6
The president is trying to short-circuit the legislative process and change the law… through executive order. That’s not how it works, folks. And couching it as a request for the FCC to issue “clarifying” regulations doesn’t change what the president’s trying to do here. 3/6
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14 May 20
I’m baffled by the Wisconsin Supreme Court’s decision striking down the shut-down order (Emergency Order 28) issued by the Secretary-designee of Wisconsin’s Department of Health Services (DHS). 1/19 cnn.com/2020/05/13/pol…
The majority opinion addresses two questions: whether the Secretary was required to follow a rulemaking process in issuing Emergency Order 28, and whether she had legal authority to impose the measures in the order. 2/19
My confusion isn’t with respect to the first part. I think the dissents present some good arguments that the Secretary wasn’t required to engage in rulemaking. But regardless of whether the majority got this one right, its opinion on the issue is at least coherent. 3/19
Read 19 tweets
1 May 20
This won’t be popular, but I’m concerned about Governor Whitmer’s re-declaration of an emergency after the Michigan legislature declined to extend it. Don’t get me wrong, I think the legislature should have continued the state of emergency. But it didn’t… 1/8
…and Michigan’s Emergency Management Act says that the governor must terminate an emergency proclamation after 28 days unless the governor requests an extension and the request “is approved by resolution of both houses of the legislature.” 2/8
Technically, the governor did terminate the emergency proclamation—at 7:29 pm. But at 7:30 pm, she issued another emergency proclamation that was basically identical in substance to the terminated one. 3/8
Read 8 tweets
30 Apr 20
ODNI just released its annual statistical transparency report. Buried in the numbers is a major instance of FISA non-compliance that hasn’t previously been reported, and that directly implicates the constitutional rights of Americans. 1/16
Some background: Under FISA Section 702, the NSA collects hundreds of millions of phone & Internet communications each year. No warrant is required because the surveillance targets are foreigners overseas—but huge amounts of Americans’ communications inevitably get swept up. 2/16
When Congress passed Section 702, it sought to protect Americans’ constitutional rights by requiring the government to “minimize” the retention/use of this “incidentally” collected information. But that’s not what happened. 3/16
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16 Apr 20
As @steve_vladeck explains in this thread, POTUS can't adjourn Congress unless the chambers disagree on when to adjourn, which hasn't happened -- and which is unlikely to happen for the reasons Steve explains. I have just one observation to add. 1/4
It's shocking how brazenly this president admits to misusing his powers. The Constitution is explicit: POTUS can adjourn Congress only to resolve a disagreement between the chambers. Trump doesn't even pretend that such a disagreement exists. He says he'll do it anyway. 2/4
It's not the first time he's admitted to misusing his powers to get around Congress. Last year he declared a national emergency because Congress wouldn't fund the wall. He admitted the declaration wasn't necessary: "I didn't need to do this, but I'd rather do it much faster." 3/4
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31 Mar 20
The DOJ Inspector General has released a memorandum summarizing the findings of his review of applications to conduct surveillance under FISA Title I. The (unsurprising) bottom line: the problems with the Carter Page applications were no aberration. 1/12 nytimes.com/2020/03/31/us/…
The way DOJ tries to ensure accuracy in FISA applications is with the “Woods procedures,” which require case agents to have documentary support for each factual claim in an application. DOJ conducts periodic audits to ensure compliance with Woods procedures. 2/12
The IG reviewed a sample of 29 FISA applications. For four of these, the FBI could not locate the Woods file. In three of those four cases, the FBI could not even ascertain whether a Woods file ever existed. 3/12 oig.justice.gov/reports/2020/a…
Read 12 tweets
24 Mar 20
Listening to the coronavirus task force news conference on Sunday, it was clear that Trump either doesn’t know or is pretending not to know what the Defense Production Act (DPA) is and what it allows. 1/13
The DPA could be used to ensure that sufficient ventilators and protective gear for health workers are being produced and distributed to where they’re most needed. Under pressure from members of Congress, Trump issued an executive order teeing up the DPA. 2/13
But he refuses to actually use it. Why? Because using it, he says, means “you’re going to nationalize an industry,” and “you’re going to take away companies.” Not surprisingly, that’s false. 3/13
Read 13 tweets
13 Mar 20
I've now seen the executive order. Mystery not solved. 1/4
The order declares a national emergency under the National Emergencies Act, and triggers the waiver of certain regulatory requirements that attach to Medicaid, Medicare, CHIP, etc. (I have no problems with that; I agree this is a national emergency.) 2/4
The order does NOT declare an emergency under the Stafford Act. It therefore does not give the president access to the Disaster Relief Fund, which is presumably the $50 billion pot of funding he kept talking about. 3/4
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