[NYTr] Clueless, or Pretending to Be, Useless Dems Gave Away the Store to Police State

[All the News That Doesn't Fit]

[At least, despite the agonizingly passive constructions in its
headlines, and the cautious tiptoeing around anonymous dishonest
official sources, the New York Times is allowing Risen's reporting to
get into print faster than two years after he writes it these days.
When the authors speak of "civil rights" concerns, they mean "civil
liberties," and you have to do most of the reading between the lines,
but it's clear that the Democrats have once again given away the
store, pretended they weren't and now they're pretending they think
they can make up for it... "later"  some time.  They all ought to be
hauled out and shot. -NY Transfer]

Concerns Raised on Wider Spying Under New Law

By JAMES RISEN and ERIC LICHTBLAU

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.

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. The new legislation is set to expire in less than six months; two
weeks after it 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 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 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. “I’m sure 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.

Bush administration officials said the new legislation, which amends
FISA, 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.

Copyright 2007 The New York Times Company