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."
Now let's cast aside the fact that the administration has once again sneered at the separation of powers as set out in the U.S. Constitution (and I'm casting aside a hell of a lot which could be its own diary). What about our national security? If, in fact, the backlog of foreign to foreign warrant requests for wiretapping was such an emergency, why did they pretend they needed a Congressional law when they didn't plan on following it anyway? Was the backlog a threat that they sat on for months, or not as high a priority as they let on? I don't have answers to these questions. But I do think we have one clue which David Campbell pointed out that is very troubling. It comes from Karl Rove:
Mr. Rove also said he expects the president's approval rating to rise again, and that conditions in Iraq will improve as the U.S. military surge continues. He said he expects Democrats to be divided this fall in the battle over warrantless wiretapping ...
Call me old fashioned, but I don't think issues vital to our national security should be used as a political football. Obviously, the White House thinks differently. Needless to say, the time for hand wringing by Democrats is over. Let's fix the law, honor the fourth amendment, and not do what Karl Rove wants us to do -- fight amongst ourselves. I think it fair to say that all Democrats can unite around our contempt for this stunningly cynical White House. January 20, 2009 can't come soon enough.
(Again, I'm concentrating on the things I think there's hope for (i.e., Webb), rather than complete lost causes (i.e., this Administration)).
The same sort of experience that lets me know not to step out in front of speeding cars.
More evidence is accumulating that the issue is not merely one of warrantless wiretapping, but also of warrantless datamining. TPM this weekend spotted an excellent report from Ryan Singel on this very issue. There are a few readers' comments below Singel's story, and they seem very astute.
Why should we be concerned? Warrantless wiretapping of data transmissions is one thing, and most of us would like to have assurance, as citizens of a still free nation, of reasonable privacy of our private communications and business transactions. We would like to think that the wiretaps are tightly focused on the communications of real terrorists.
But a closely related issue is datamining. What if NSA, the FBI, and other government agencies and private sector contractors with the necessary security clearances have been granted through Bush/Cheney White House fiat the green light to demand access to vast collections of proprietary, firewalled databases, such as credit card records, bank statements, phone records, web access records, e-mail archives, library records, charitable organization donation records, IRS tax records, etc.?
And here is an even more chilling thought: what if government agencies and cleared contractors have been granted by Bush/Cheney fiat the right to search, retrieve, and store such proprietary data without even asking the credit card company, the bank, the phone company, the Internet service provider, the webmail provider, the library, the church or charitable organization, or the IRS for access to the data? Hackers can often do this sort of thing in their efforts to steal funds or identities. Presumaby NSA, with its talent pool and huge budget, is reasonably adept at conducting such warrantless data retrieval for later datamining at leisure--if the White House orders it to do so.
Without close FISA court supervision or Congressional scrutiny of these wiretapping and datamining efforts, is there any reason to believe that this "unitary executive" administration has any interest in protecting the Fourth Amendment rights of U.S. citizens--even as it claims that the main purpose of its massive data collection and filtering efforts is simply to catch terrorists?
True, a great deal of public information on any individual is already available via a simple Google search, a proprietary LexisNexis search, or a credit check. But if the government, without warrant, can conduct not merely warrantless wiretapping, but also warrantless data retrieval and datamining of proprietary databases, even on U.S. citizens, have we not arrived at a new and alarming level of Orwellian intrusiveness?
To think that the Bush/Cheney/Rove/Addington/Gonzales Administration would stop short of using these enormous capabilities to try to promote Republican Party supremacy and to intimidate its political enemies is to live in a lalaland of vain and credulous hope.
We can hope that Senator Leahy, Senator Rockefeller, Senator Feingold, and Rep. Holt will be able to raise enough of a hue and cry so that these issues can be seriously--rather than cursorily--considered by Congress. We can hope that Senator Reid and Speaker Pelosi will wake up and show some real leadership. But in so hoping, perhaps we inhabit our own lalaland of credulity. Maybe Karl Rove, who is not entirely stupid, is right, and the Democrats will remain divided over the issue while Bush/Cheney/Addington/Gonzales (with the newly unemployed Rove providing public cover on the talk shows) continue to shred, bag, and incinerate the Fourth Amendment.