Checks but little balance

The Senate filibustered a four-year renewal of the Patriot Act today.

The Patriot Act, approved after the Sept. 11, 2001, terrorist attacks, made it easier for the FBI to conduct secret searches, monitor telephone calls and e-mails, and obtain bank records and other personal documents in connection with terrorism investigations. Critics said the proposed renewal would do too little to let targeted people challenge national security letters and special subpoenas that give the FBI substantial latitude in deciding what records -- including those from libraries -- should be surrendered.

In today's Senate debate, several lawmakers cited a New York Times report disclosing that Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying.

"Mr. President, it is time to have checks and balances in this country," thundered Sen. Patrick J. Leahy (D-Vt.), the Judiciary Committee's top Democrat. "We are a democracy!"

Sure we are, but in the democracy we find ourselves living in today, what's Constitutional is what the president says is Constitutional.

WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

It's not exactly a high hurdle to get a warrant in this country, especially a Federal Intelligence Surveillance Court (FISA) warrant.

And this is interesting:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

The report doesn't indicate why, a year later, they went ahead with publication. I'm guessing that it's because the White House never came up with a compelling reason not to.

While the Patriot Act is coming under increasing scrutiny, the Patriot Act is irrelevant if the administration is making up the president's constitutional perogatives as they go along.

Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA Patriot Act, which is up for renewal. The House on Wednesday approved a plan to reauthorize crucial parts of the law. But final passage has been delayed under the threat of a Senate filibuster because of concerns from both parties over possible intrusions on Americans' civil liberties and privacy.

Under the act, law enforcement and intelligence officials are still required to seek a F.I.S.A. warrant every time they want to eavesdrop within the United States. A recent agreement reached by Republican leaders and the Bush administration would modify the standard for F.B.I. wiretap warrants, requiring, for instance, a description of a specific target. Critics say the bar would remain too low to prevent abuses.

Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans. "Nothing could be further from the truth," wrote John Yoo, a former official in the Justice Department's Office of Legal Counsel, and his co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping program.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., "Can the National Security Agency, the great electronic snooper, spy on the American people?"

"Generally," Mr. Mueller said, "I would say generally, they are not allowed to spy or to gather information on American citizens."

President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

Our imperial president puts forth these executive orders because the administration expects Congressional opposition.

Meanwhile, other privacy and civil liberties lines are being crossed.

WASHINGTON - A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn't know was that their meeting had come to the attention of the U.S. military.

A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period.

“This peaceful, educationally oriented group being a threat is incredible,” says Evy Grachow, a member of the Florida group called The Truth Project.

[...]

The Defense Department document is the first inside look at how the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups.

[...]

The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One “incident” included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald’s National Salute to America’s Heroes — a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: “US group exercising constitutional rights.” Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense — yet they all remained in the database.

The DOD has strict guidelines (.PDF link), adopted in December 1982, that limit the extent to which they can collect and retain information on U.S. citizens.

Still, the DOD database includes at least 20 references to U.S. citizens or U.S. persons. Other documents obtained by NBC News show that the Defense Department is clearly increasing its domestic monitoring activities. One DOD briefing document stamped “secret” concludes: “[W]e have noted increased communication and encouragement between protest groups using the [I]nternet,” but no “significant connection” between incidents, such as “reoccurring instigators at protests” or “vehicle descriptions.”

UPDATE: Go watch the various civil [cough...bullshit...cough] libertarians and the Dear Leader conservatives fall all over themselves defending this as a.) not a big deal and/or b.) a traitorous leak of vital intelligence information. Please. Guys. You were oh so better coordinated when Janet Reno was stomping on civil liberties with her army of jack-booted government thugs, UN blue helmets, and black helicoptors. Now, I just don't know what to think.