What's old is new

Congress is in the process of holding hearings on the possible renewal of three provisions of the TRAITOR Act, the intrusive, "we'll search whatever we damn well feel like so suck on this, privacy advocates" legislation hurriedly passed in the fear-mongering-filled weeks following 9/11.

Those three provisions will expire on December 31 unless renewed - and, true to the George Bush form it has established on such matters, the Obama crowd wants all three "important authorities" renewed.

The three provisions in question:

- The FBI can get a warrant to secretly obtain a wide variety of information, including business and financial records, computer information, or even library records. The only requirement is that the information is thought to be "relevant" to a terrorism investigation; a belief that the person or organizations whose records are sought are engaging in illegal activity is not necessary. Not only is the target not informed of the search, it is illegal for the institutions from which the information is obtained to tell the target it happened.

- The FBI can obtain an order for a so-called "roving" wiretap, allowing them to follow someone from phone to phone. That is, it is the person who is wiretapped, not the phone.

- The government can spy on suspected "lone wolves," foreigners suspected of some terrorism desire or some such thing but who have no apparent connection to any known terrorist group or foreign government.

There has been some low-level pushback by some liberals and moderates in Congress. Not much at least so far, but enough to register. During the hearings before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, both Subcommittee Chair Jerry Nadler and Judiciary Committee Chair John Conyers questioned the need for the provisions; Conyers even compared Todd Hinnen, testifying for the White House, to people in Shrub's DOJ.

Another, related issue that has caused a stir is that of so-called "National Security Letters," or NSLs. These are essentially extra-judicial warrants that can be issued on their own authority by low-level FBI supervisors demanding access to a wide variety of records and requiring that the recipient of such a letter never even mention having been served with it. Nadler and Senate Judiciary Committee Chair Pat Leahy want to put some limits (or, more exactly, what they fantasize are limits) on NSLs, such as requiring the FBI to state why the information is "relevant to an authorized investigation" and allowing for disclosure of the searches - sometimes. Leahy also wants the NSL powers to sunset after four more years. Considering that he also wants the expiring power extended another four years, we can see how well the idea of "sunsetting" works in practice.

I first griped about NSLs - and I just cannot see how these things can possibly be Constitutional - in January 2004. If you want to know why I think they are so bad, check this post from November 2005:

Summary: If you have any contact, even casual, even unknowing, with a suspect in any investigation involving "international terrorism or clandestine intelligence activities," even if you are not suspected of wrongdoing, any FBI field supervisor can on their own authority, without any oversight by a prosecutor, grand jury, or judge - or even any after-the-fact review by the Justice Department or Congress - issue a national security letter which can be used to demand information on

where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

Employment records, credit records, banking records, phone records, travel records, and more, it's all there for the taking.

Russ Feingold (D-Sanity) and nine co-sponsors have introduced a bill (S.1686) to undo some of the damage done by the TRAITOR Act, including NSLs. It wouldn't ban them but would at least put some judicial oversight in place. In addition, as described to Democracy Now! by Lisa Graves, executive director of the Center for Media & Democracy, it would reverse some of the egregious portions of last year's changes to FISA. Specifically, it would among other things

prohibit the bulk collection of Americans’ international emails and telephone calls and would require more specificity in obtaining international communications. That provision would also repeal the telecom immunity provisions that passed last year, at the urging of AT&T and others, that basically stripped the rights of citizens to pursue cases in courts against phone companies that engaged in warrantless wiretapping at the behest of the Bush administration.

Right now, the sponsors other than Feingold are Sens. Daniel Akaka, Jeff Bingaman, Dick Durbin, Bob Menendez, Jeff Merkley, Bernie Sanders, Jon Tester, Tom Udall, and Ron Wyden. If your Senator is not on that list, you might want to ask them why.

Important Footnote: In testimony, the White House admitted that the "lone wolf" powers had never been used but still urged they be extended. And Hinnen testified that

[a]t the time of the USA Patriot Act, there was concern that the FBI would exploit the broad scope of the business records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries. This simply has not occurred.

Okay, a question: How the hell can these provisions be "important authorities" if you haven't had to use them once in eight years? And I want an actual answer to that question, not a string of invoking-the-dark-side "what ifs."

This, however, is why this footnote is important: Hinnen is lying through his goddamned teeth.

The Connecticut Four were four librarians who were served with an NSL in July 2005 but who refused to comply and staged a year-long legal battle to lift the gag order imposed as part of it, a gag order so complete that they couldn't even be named in publicly-available court documents or acknowledge that they were the people involved. It was a fight they won in May 2006. During the time the case was going on, Lisa Graves said, the Shrub gang insisted that concerns about going after libraries were unfounded. And now, even with the case on record, Hinnen sits in front of a House committee and insists "This simply has not occurred."

The Bush White House was lying then and the Obama White House is lying now.

A Second, Quick Footnote: The ACLU released extended, detailed testimony. It's available in .pdf format at this link.