Collecting intelligence gets more tricky.

The Bush administration is always coming up with new methods of gathering its intelligence information.At times it has been forced to do so after being over-ruled. The Supreme Court has ruled (in the fifth detainee case to come before it) that people suspected of being terrorists have certain rights under U.S. law. We are learning still more about what surveillance methods are used by the FBI, through revelations of what the FISA courts questioned in the past.

But they never give up the work to enlarging the net in which all Americans can be caught. Our current president (OCP) has ordered that more biometric data be collected, even on non-terrorists. Body-scanning is beginning at airports. And the Foreign Intelligence Surveillance Act bill may again come up for debate in Congress next week. Negotiations have been underway for months between Congress and the White House on how to amend the FISA law so that widespread warrantless wiretapping can be expended even further than ever. Are the Democrats about to cave in yet again? What on earth are we to do with these folks?

As domestic intelligence is collected in the future what happens to civil liberties and the rule of law? In this case congressional leaders are intentionally going around the leaders with responsibility for judicial oversight, the Senate and House Judiciary Committees . House Majority Leader Steny Hoyer has been in the negotiating lead, along with Senator Rockefeller, chair of the Intelligence Committee. "What’s In It For Steny?" by: Christy Hardin Smith, Friday June 13, 2008. Christy's post includes two important quotes that are too long to include here. 1) from CQ Politics "Agreement Could Pave Way For Surveillance Overhaul." and 2) a concluding updating ACLU statement that gives all the reasons why, "The ACLU urges Senators to vote against this deal if it is brought to a vote next week.” To quote Christy's post opening:

I'm hearing from the ACLU that Steny Hoyer and Kit Bond presented a FISA deal to a limited number of members and staffers on the Hill today. And that Hoyer is representing this as a "done deal" for FISA that includes district court review . . . and a sunset of 6 years.

What I'm hearing is that Hoyer and Kit Bond want debate to begin in the Senate next week...but I heard from another source that they didn't bother going through the leadership channels to set this up before they started pushing it. Potentially a big mistake in the land of egos.

Especially since Hoyer, Bond and Rockefeller appear to be going behind the backs of both Pat Leahy and John Conyers -- cutting both Judiciary Committee chairs out of the discussions altogether in a massive turf refutation. Talk about trying to cut the legal legs out from underneath a civil liberties question. Will Leahy and Conyers allow themselves to be gelded this way? Guess we'll see.

Under current law intelligence collection can go on as before until the current wiretap authorizations end in August. At that point new warrants could be obtained through FISA court requests or amending the law to exempt all foreign intelligence from warrant requirements. From Kagro X at Daily Kos (6/13/08) we learn that there may be a lot of politics involved from this story. The negotiations are actually about retroactive immunity for telecommunications companies and maintaining wholesale warrantless wiretaps on U.S. citizens. This is the Kos post's question - "FISA costing Hoyer his muscle in the Caucus?" To quote:

What the substantive change to the "deal" may mean, though, is that the legal whitewash gets relocated from the FISA court to federal district court.

. . . Hoyer has been pushing for a deal on FISA all along, presumably in an effort to protect the . . . House Blue Dogs in particular. . . Hoyer's interest in concluding a deal quickly and his preferred procedure on the bill are being driven by fears of losing control of the issue entirely.

. . . Now it may turn out that the Senate Dems are just as eager to get this done as Hoyer is. But if they're tired of being the first movers in this continuing circus -- and despite the willingness of many Senate Dems to cave, several of them do seem to be holding their noses when they do it -- let them recognize that Hoyer's drowning here, and simply opt not to throw him a life preserver.

The key issue is fixing the only problem with the current FISA law -- a requirement to get warrants to collect foreign to foreign intelligence. The rest of the proposed bill has nothing to do with that problem but would 1) grant vast warrantless wiretapping powers to spy on Americans to the government, and 2) would grant immunity to the telecom companies for helping the government all this time. A post from Glenn Greenwald at Salon.com (6/11/08) "NYT circulates fear-mongering claims on FISA debate," lays out the real issue with media coverage of this long battle. Greenwald's very thorough analysis of the current so-called FISA compromise exposes a number of flaws in the MSM story in the NYT by Eric Lichtblau. Greenwald makes the point that Lichtblau conflates the real issues. To quote rather extensively:

The New York Times' Eric Lichtblau has a long, prominent article today on the pending debate over FISA and telecom amnesty -- headlined: "Return to Old Spy Rules Is Seen as Deadline Nears" -- that features (and endorses) virtually every blatant falsehood that has distorted these spying issues from the beginning, and which is built on every shoddy journalistic practice that has made clear debate over these issues almost impossible. The article strongly suggests that a so-called "compromise" is imminent, a "compromise" which will deliver to the President virtually everything he seeks in the way of new warrantless eavesdropping powers and telecom amnesty.

. . . even if it's "urgent" that FISA be amended to exempt foreign-to-foreign communications from its warrant requirements, that is irrelevant to the debate over whether the President should be able to eavesdrop on Americans inside the U.S., and even less relevant to whether telecoms should receive amnesty for their lawbreaking. Those are the issues being debated, not whether "foreign-to-foreign" communications require warrants.

. . . what makes the Democrats in Congress so contemptible. As always, they claim that they are preparing to comply with the President's demands because they are afraid of the political costs of not doing so:

As hard as the White House has pushed, Democrats may have even more at stake. They acknowledge not wanting to risk reaching their national convention in Denver in August without a deal, lest that create an opening for the Republicans and Senator John McCain, their presumptive presidential nominee, to portray themselves as tougher on national security -- a tried-and-true attack method in the past -- just as the Democrats are nominating Senator Barack Obama.

. . . But even that ostensible political fear makes no sense whatsoever. Democrats control the agenda in Congress. They determine what bills are voted on. All they have to do is force a House and Senate vote on a bill that does two simple things: (a) exempt foreign-to-foreign calls from FISA's warrant requirements and (b) extend the PAA surveillance orders by 6 or 9 months. When the GOP filibusters that bill, or when George Bush vetoes it, then that will obviously preclude the GOP from using the expiration of those PAA orders as a club to beat Democrats, since it will be as clear as day -- so clear that even our national press corps can understand it -- that it was the President and the GOP, not Congressional Democrats, which caused those orders to expire.

. . . UPDATE: Numerous privacy and civil liberties organizations -- including the ACLU and EFF -- today issued a joint letter (.pdf) strongly condemning the so-called GOP "compromise" FISA bill, making clear that it "is far from a compromise. Its chief provisions are not significantly different from those contained in the bill passed by the Senate in February of this year." Specifically, the "compromise" bill "unreasonably and unnecessarily authorizes broad surveillance of Americans' international communications without meaningful Fourth Amendment protections" and "would use the secret FISA court to rubber stamp a grant of immunity to telecommunications companies."

More information is being revealed about the depth and breadth of domestic surveillance done by the Bush administration from early on. Such revelations have proved to be very tricky because of over-classification, secrecy and outright law-breaking under OCP. Again we are left to the mercy of court protection and oversight without the executive branch protection of basic civil liberties under the U.S. Constitution. Memeorandum: "Secret Spy Court Repeatedly Questions FBI Wiretap Network" (6/11/8) by Ryan Singel at Wired-Threat Level To quote:

Does the FBI track cellphone users' physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database? Does the FBI's wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?

That's what the nation's Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau's counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.

. . . The documents also reveal that the inquiry on dialed-digits collection wasn't the first time the secret court had queried the FBI regarding its use and storage of information from wiretaps. In October 2005, the court also asked the FBI to explain how it stored "raw" foreign-intelligence wiretap content and information about Americans collected during those wiretaps. The government is supposed to "minimize" -- that is anonymize or destroy -- information gathered on Americans who aren't the targets of a wiretap, unless that information is crucial to an investigation.

Collecting intelligence gets more widespread every year. Here's a "hat tip" to Dandelion Salad for this recent news from The Progressive "Bush Orders Collection of Biometric Data on New Groups of Non-Terrorists," To quote:

Big Brother wants your irises. George Bush just issued a directive to expand the acquisition of biometric information, and to ensure that agencies across the executive branch share it. And the Bush Administration may give it to foreign governments, too.

All this according to National Security Presidential Directive Number 59, also known as Homeland Security Presidential Directive Number 24, which George W. Bush signed on June 5. The directive is aimed at “known and suspected terrorists,” as well as “other persons who may pose a threat to national security.”

Airport screeners can now strip search passengers without removing their clothes with this new technological trick. The story is from Thomas Frank at (6/6/08) USA Today* - 10 airports install body scanners - Devices can peer under passenger's clothes. To quote:

Body-scanning machines that show images of people underneath their clothing are being installed in 10 of the nation's busiest airports in one of the biggest public uses of security devices that reveal intimate body parts.

The Transportation Security Administration (TSA) recently started using body scans on randomly chosen passengers in Los Angeles, Baltimore, Denver, Albuquerque and at New York's Kennedy airport.

Airports in Dallas, Detroit, Las Vegas and Miami will be added this month. Reagan National Airport in Washington starts using a body scanner today. A total of 38 machines will be in use within weeks.

The Bush administration has been relentless in coming up with new intelligence gathering methods, at the cost of civil liberties. At times it has been forced to comply with the law after being over-ruled in court cases. The Supreme Court, FISA courts and now District Courts are once again charged with bringing OCP under the rule of law. At times Inspector Generals or whistle blowers reveal questionable methods. Occasionally Congressional investigation will report on the latest new wrinkle, but not nearly often enough. Where would we be without the ACLU, many fierce and dedicated investigative bloggers, and others who have fought these battles on our behalf? In closing let me highly recommend a new investigative resource: ProPublica - "Journalism in the public interest."

ProPublica is an independent, non-profit newsroom that produces investigative journalism in the public interest. We strive to foster change through exposing exploitation of the weak by the strong and the failures of those with power to vindicate the trust placed in them.

View my current slide show about the Bush years -- "Millennium" -- at the bottom of this column.

(Cross-posted at The Reaction.)

My “creativity and dreaming” post today is at Making Good Mondays.

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