The New York Times has more details about what we can expect of the federal government's new unsupervised surveillance powers, at least until this version of the recently passed legislation expires. At least I do think it still expires in six months. God, I hope so.
Either that or the next administration had better start cleaning house on this kind of crap from the instant it takes office... if it expects to get elected in the first place, that is. (emphasis below is mine)
Link: Concern Over Wider Spying Under New Law - New York Times.
Concern Over Wider Spying Under New Law
By JAMES RISEN and ERIC LICHTBLAU Published: August 19, 2007
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.
[...]
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.
[...]
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.
[...]
“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.
[...]
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.”
[God, this presumption makes me simply ill]
[...]
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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