WASHINGTON, Aug. 18 — 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 on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.
Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.
They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.
Uh huh. For some reason, those assurances don't make me feel better.
“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....
...Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions. Whether intentional or not, the end result — according to top Democratic aides and other experts on national security law — is that the legislation may grant the government the right to collect a range of information on American citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas.
But of course we know the administration would never overstep its bounds. Well, actually we don't, and that's why a group of attorneys met with Bushco last week to clarify the parameters of the new law. They weren't happy with what they heard.
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. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”
Gee, I'm shocked to hear that. Not only did Bush rush through a big expansion of his surveillance power, he has no intention of abiding by the new rules if they get in his way. And let's not forget that DNI Mike McConnell and incompetent liar Alberto Gonzales get to decide who will be targeted when Bush unleashes his shiny new superpowers.
"We did not cover ourselves in glory," said one Democratic aide, referring to how the bill was compiled.
No shit. Thanks ever so to the 14 Democratic senators and 41 Democratic representatives who voted for this turkey. You suck.
Cross-posted at Birmingham Blues.