Electronic Surveillance

by emptywheel

James Risen and Eric Lichtblau have a report today supporting what many around these parts have suggested--that one effect of the amendments to FISA is to expand the kinds of surveillance the Administration can do.

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches of American citizens and the collection of their business records, Democratic Congressional officials and other experts said.

[snip]

“This may give the administration even more authority than people thought,” said David Kris, a former senior Justice Department lawyer in the Bush and Clinton administrations and a co-author of “National Security Investigation and Prosecutions,” a new book on surveillance law.

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.

These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

Note that David Kris is pretty smart about these issues, so if thinks this is possible, then it probably is.

I'm also struck by the inclusion of trap and trace operations in this list. Somewhere, I expect us to be discussing data-mining again, and with trap and trace we're getting closer to data-mining.

In addition to reiterating some of the concerns that have been raised here and in other blogs covering this, Risen and Lichtblau give sketchy details of two meetings that have occurred since the passage of the bill, one I didn't know about...

These new powers are considered overly broad and troubling by some Congressional Democrats who raised their concerns with administration officials in private meetings this week.

[snip]

The senior intelligence official acknowledged that Congressional staff members had raised concerns about the law in the meetings this week, and that ambiguities in the bill’s wording may have led to some confusion. “I’m sure there will be discussions about how and whether it should be fixed,” the official said.

And one I did...

Yet Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting.

So that's where you're at. The Bush Administration refuses to be bound even by the amended FISA law, even with its potentially broad application. And in response to Congressional regrets about the bill, Mr. Senior Intelligence Official says only, "there will be discussions about how and whether it should be fixed." [my emphasis]

Comments

[bmaz]

Oh, the Administration wants it fixed alright. They want more leeway and immunity for everyone involved, and they want it retroactively. Any "fix" other than that, they will veto within seconds of the ink being dry. That is why any Democrat that blathers about "revisiting the mater after vacation" ought to be clubbed on the head right then, there, and on the spot. Furthermore, the Bushies have continuously, from the get go, said they will do whatever they want under his "constitutional" (a theory so full of BS it oozes) power. This is exactly why it was insane to have dealt with the devil on this issue in the first place. Absolutely insane.

[Ishmael]

It is becoming disingenuous for Democratic members of congress to be making statements about legislation after the fact - "OMG, we didn't think that 'electronic surveillance' meant that!". Rather than place meaningful definitions in the legislation that would definitively place such police-state tactics beyond the pale, the Democrats have their own version of a "legislative signing statement" - don't blame us, we told Bushco off the record what we thought the legisation meant, so we didn't see the need to put it in the legislation. This is becoming the new equivalent in the willful-blindness lexicon to "a little-noticed provision of the Patriot Act".

[Frederick]

Regrets? I've had a few,
But then again, too few to mention.
I did what I had to do
And saw it through without exemption. Frankly now a few ?

[bmaz]

And what Ishmael said too!

[Mimikatz]

Bush may claim he has unlimited powers, but this isn't going to immunize the telcos.

The Dems definitely need to revisit this well before the 6 month period ends so there is plenty of time to get it right.

[casual observer]

In my view all this (including the administrations claim that even more FISA changes would be needed when congress returns) shows how disastrous the Congress' actions were regarding FISA. And why? So they could go have some vacation time and get some serious fundraising done.

The left-0-sphere's reaction to this failure needs to be carefully thought out. Some feel that since our current democrats failed us, what we need is....More Democrats. I don't think blindly voting for people with D after their name will neccessarily do it. What is actually needed are new legislators who hold civil liberties as an absolute priority. Those who feel the same commitment to the constitution that Bruce Fein does. Currently, we have a large majority of the majority who apparently don't care all that much about constitutional issues.

[masaccio]

Why not just let the miserable thing expire? We get no benefit from anything else. We should just reintroduce the House Bill, and let this dreck sink into the mists of time.

The administration will try to continue on without the legislation they say they don't need, and it will be interesting to see if the NSA will do it in the face of the coming Democratic administration.

[chris]

Little news item I just found:
http://www.chron.com/disp/story.mpl/nation/5064559.html

Spy court ordered to answer ACLU

Associated Press
WASHINGTON — The government must answer a watchdog group's demands to release records about the nation's classified terrorist spying program, the chief judge of a secretive national security court has ruled.

The American Civil Liberties Union, which announced the order Friday, said it was the first time the Foreign Intelligence Surveillance Court had responded to a request filed by the public

[casual observer]

What are the odds that congress could repeal the amendment. My guess is slim to none. this is not going to be easy to fix. the horse is out of the barn, the barn is on fire, and the ferkin firemen look like a bunch of clowns.

[mighty mouse]

So in some ways the telephone company is our last best hope--certainly not Bushco, apparently not the Dems. For some weird reason I keep thinking of Colonel (?) Mandrake trying to phone the president in Dr. Strangelove but not having the correct change as required by the telephone company. Maybe, at the end of the day, somebody's gotta require correct change?

[Ishmael]

Mimikatz - just thinking off the top of my Canadian (and therefore unqualified!) head here, but under Sarbanes-Oxley, are the telco lawyers not required to go to the Board of Directors of the telcos if they are aware of unlawful activity? Or would not the SEC require a restatement of the earnings of the telcos to account for the contingent liability of fines for millions of intercepted telecommunications? Are there any progressive organizations/unions that have enough shares in a pension fund or something that could get this on the agenda of an annual meeting and ask some uncomfortable questions? The only thing more powerful than the forfbranch are the corporations that pay their bills, so some shareholder activism might be more effective than political pressure - the Democrats seem quite willing to pretend outrage at this, because they have calculated there isn't much downside. Corporations might be hit where it really hurts here, therefore the push for retroactive immunity (or even Presidential pardons?)

[bmaz]

massacio - I understand that theory, and that is likely how it will play out because, as I mentioned above, I think any useful fix would be vetoed. My rationale for wanting it bounced immediately, even if there is a veto, is as a repudiation of the implied cloak of legality for all of Bushco's criminal conduct that has been generated. It may be somewhat ephemeral, but I think it would be significant; if for no other reason than to inform the public and regain some momentum.

[bmaz]

Mighty mouse - I am afraid Col. Bat Guano has the upper hand here. And the machine gun.

[Ishmael]

Bmaz - exactly, it is important to set some standards here. Right now, with respect to the 4th amendment, there is a 'don't ask, don't tell" compromise between Congress and the forfbranch, congress won't ask any hard questions about what is being done, and Bushco definitely wont tell. Digby said that the move towards conservatism is not a cyclic thing like the movement of a pendulum, that will swing back eventually, with the Republicans it is a tug of war, and you have to have the strength and determination to pull the rope back before you get hauled into the mud puddle. There is a lot of heavy lifting and pulling ahead of us to keep out of the mud puddle, and this is a good place to start, even if the Democrats don't see any political advantage.

[bmaz]

Ishmael - Although there may be potential liability still (at least for actions up to two weeks ago); but that is at least part of what all the fuss over "letters" and "certifications" from DOJ has been over. Whether it was legal and proper or not to do so (and I say no), it is quite clear that the government has been giving the telcos sufficient permission slips to avoid any Sarbanes-Oxley issues. There are a few cases already that will be decent bellwethers on a more traditional front; two argued on appeal in the 9th Circuit last Wednesday and a third still in District Court in NDCA.

[Ishmael]

Damn.

[masaccio]

bmaz, I do think there is something to be gained from repealing the current act as a first step, but we would have to count the votes in both the house and the senate to make sure we could pass a repeal. If we failed to pass the repeal, and that is a real risk, given the fatheadness of our blue dog dems, it would be harder to pass the house bill, which is what really needs to happen. If we just pass the house bill, and have the leadership announce that no other bill will get a hearing, regardless of what the senate does, we beat the ghost of rove and his foolish clown princeling.

[bmaz]

masaccio - Ok, maybe I didn't get what you meant the first time. So you are saying, instead of attempting repeal etc., they should just pass the original house bill and treat it as a type of superseding law? And if so, how is that any different if the Senate won't pass it, and even if they did it would be vetoed?

[bmaz]

And hey everybody, don't get me wrong. I am for anything and everything that puts a monkeywrench in this BS.

[lambert strether]

I don't think you understand, March.

Bush is operating under The Theory That We Get To Do Whatever The Fuck We Want, and so he's doing whatever the fuck he wants. What could be simpler? What could go wrong?

[lambert strether]

Eesh, typo. Marcy.

[masaccio]

The current bill expires in six months. Perhaps I misunderstand the meaning of "expire", but if it has the usual meaning, and if nothing else happens, we go back to the prior law. The administration is left violating the law. The House Bill dealt with the foreign to foreign surveillance problem, whatever it was. It should have sufficed to meet the "threat", and will be enough if we pass it this time. Let Bush veto it, leaving himself with no protection.

[Kagro X]

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting.

So, have we "embraced a cartoon super-villain version of the administration which is just not real" here, or what?

[Seamus]

Who are the people advising Dem leaders on FISA? Do they have anyone who is an authority on, or a champion of civil liberties? As far as I can see, the only consideration given to limiting executive overreach was the six-month sunset that isn't even that. Bruce Fein knows what he is talking about, but he's not part of the congress. Who's in charge of this fiasco??

[bmaz]

masaccio - ok, I see what you mean now. I am not convinced there is any overriding necessity for any of it, including the original House bill. Until they fess up with what exactly has been, and is being, done; I am not inclined to pass anything. And for the reasons i stated above, I think the Democrats need to start stepping up for what is right, even if it fails. And the talking points for the attempt I describe ought to be centered on the repeal being necessary because of the fraud, deception and criminality of the Administration; both in railroading passage two weeks ago and in general. Doing the right thing and telling the truth, even if the worthless Republicans and some equally pathetic Blue Dogs don't go along, looks far less weak and lame than being to timid to try at all.