-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: August 18, 2007 6:35:47 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: UNFORGIVABLY, "Democrats" in Congress AGAIN "Didn't Read
the Fine Print"!!!
If by some miracle we'll be permitted to have an election in 2008,
or at least a fraud-free one,
vote against EVERY REPUBLICAN, first and foremost, then vote
against EVERY DEMOCRAT
http://www.nytimes.com/2007/08/19/washington/19fisa.html?
_r=1&hp&oref=slogin
Concern Over Wider Spying Under New Law
By JAMES RISEN and ERIC LICHTBLAU
Published: August 19, 2007
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 of American
citizens and the collection of their 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.
The dispute illustrates how lawmakers, in a frenetic, end-of-
session scramble, passed legislation they may not have fully
understood and may have given the administration more surveillance
powers than it sought.
It also offers a case study in how changing a few words in a
complex piece of legislation has the potential to fundamentally
alter the Foreign Intelligence Surveillance Act, a landmark
national security law.
Two weeks after the legislation was signed into law, there is still
heated debate over how much power Congress gave to the president.
“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 seizures> and so-called “trap and trace”
operations, analyzing specific calling patterns.
For instance, the legislation would allow the government, under
certain circumstances, to demand the business records of an
American in Chicago without a warrant if it asserts that the search
concerns its surveillance of [a different] person who is in Paris,
experts said.
It is possible that some of the changes were the unintended
consequences of the rushed legislative process just before this
month’s Congressional recess, rather than a purposeful effort by
the administration to enhance its ability to spy on Americans.
“We did not cover ourselves in glory,” said one Democratic aide,
referring to how the bill was compiled.
But a senior intelligence official who has been involved in the
discussions on behalf of the administration said that the
legislation was seen solely as a way to speed access to the
communications of foreign targets, not to sweep up the
communications of Americans by claiming to focus on foreigners.
“I don’t think it’s a fair reading,” the official said. “The intent
here was pure: if you’re targeting someone outside the country, the
fact that you’re doing the collection inside the country, that
shouldn’t matter.” Democratic leaders have said they plan to push
for a revision of the legislation as soon as September. “It was a
legislative over-reach, limited in time,” said one Congressional
Democratic aide. “But Democrats feel like they can regroup.”
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.
In effect, they say, the legislation significantly relaxes the
restrictions on how the government can conduct spying operations
aimed at foreigners at the same time that it allows authorities to
sweep up information about Americans.
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.
“This shows why it is so risky to change the law by changing the
definition” of something as basic as the meaning of electronic
surveillance, said Suzanne Spaulding, a former Congressional staff
member who is now a national security legal expert. “You end up
with a broad range of consequences that you might not realize.”
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. “There will be discussions about how and whether
it should be fixed,” the official said.
Vanee Vines, a spokeswoman for the office of the director of
national intelligence, said the concerns raised by Congressional
officials about the wide scope of the new legislation were
“speculative.” But she declined to discuss specific aspects of how
the legislation would be enacted. The legislation gives the
director of national intelligence, Mike McConnell, and Attorney
General Alberto R. Gonzales broad discretion in enacting the new
procedures and approving the way surveillance is conducted.
The new legislation amends FISA, but is set to expire in six
months. Bush administration officials said the legislation was
critical to fill an “intelligence gap” that had left the United
States vulnerable to attack.
The legislation “restores FISA to its original and appropriate
focus — protecting the privacy of Americans,” said Brian
Roehrkasse, Justice Department spokesman. “The act makes clear that
we do not need a court order to target for foreign intelligence
collection persons located outside the United States, but it also
retains FISA’s fundamental requirement of court orders when the
target is in the United States.”
The measure, which President Bush signed into law on Aug. 5, was
written and pushed through both the House and Senate so quickly
that few in Congress had time to absorb its full impact, some
Congressional aides say.
Though many Democratic leaders opposed the final version of the
legislation, they did not work forcefully to block its passage,
largely out of fear that they would be criticized by President Bush
and Republican leaders during the August recess as being soft on
terrorism.
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.”
Brian Walsh, a senior legal fellow at the conservative Heritage
Foundation who attended the same private meeting with Justice
Department officials, acknowledged that the meeting — intended by
the administration to solicit recommendations on the wiretapping
legislation — became quite heated at times. But he said he thought
the administration’s stance on the president’s commander-in-chief
powers was “a wise course.”
“They were careful not to concede any authority that they believe
they have under Article II,” Mr. Walsh said. “If they think they
have the constitutional authority, it wouldn’t make sense to commit
to not using it.”
Asked whether the administration considered the new legislation
legally binding, Ms. Vines, the national intelligence office
spokeswoman, said: “We’re going to follow the law and carry it out
as it’s been passed.”
Mr. Bush issued a so-called signing statement about the legislation
when he signed it into law, but the statement did not assert his
presidential authority to override the legislative limits.
At the Justice Department session, critics of the legislation also
complained to administration officials about the diminished role of
the FISA court, which is limited to determining whether the
procedures set up by the executive administration for intercepting
foreign intelligence are “clearly erroneous” or not.
That limitation sets a high bar to set off any court intervention,
argued Marc Rotenberg, executive director of the Electronic Privacy
Information Center, who also attended the Justice Department meeting.
“You’ve turned the court into a spectator,” Mr. Rotenberg said.
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