A few months ago we started hearing rumors about FBI guidelines that would allow the Bureau a much wider parameter to investigate (READ: SPY ON) Americans. Well, not so much rumors as a piece by AP reporter Lara Jakes Jordan.

We’ve been anticipating these guidelines since the story broke but they haven’t yet surfaced. Well, it looks like the Bureau has been doing some door knocking on the Hill as of late because we got some riled up Senators. I didn’t know you could rile up Senators in August but I’m glad to hear it. My husband, Senator Russ Feingold (D-Wisc.), is leading the charge along with Senators Dick Durbin (D-Ill.), Ted Kennedy (D-Mass.) (bless his heart) and Sheldon Whitehouse (D-R.I.).

Let’s look at the big picture for a minute. These guidelines seem to be, given the accounts we’ve read about, a horrible idea. BUT. Put them together with this and you’ve got yourself the workings of a new domestic spying agency. Didn’t someone see this coming? Oh yes, that’s right. We did. (Deeper analysis here.)

Handing greater latitude to an agency that has proven that it can’t police itself with even the most stringent guidelines is a mistake. Combine the lack of an outside check with what look to be incredibly vague guidelines for suspicion and you’re looking at a constitutional disaster in the making.

Anyway, it looks like the Attorney General has flinched and will hold off on the new guidelines for now, waiting to hear congressional testimony from FBI Director Robert Mueller next month. Maybe while he’s visiting, Mueller can shed a little more light on why the FBI felt the need to violate previous guidelines (and, um, the law) to spy on reporters?

Eighty-eight years ago today, Ms. Helen Thomas entered into a world that was just barely ready for someone as totally awesome as she. Ms. Thomas has been kicking ass and taking names in the White House press briefing room for nine presidential administrations. Count ‘em. NINE.

One of the best moments in recent journalistic history was when Ms. Thomas berated White House Press Secretary Dana Perino on torture, then turned her disgust towards her fellow journalists for their inertia. When it became public that President Bush not only knew of high-level meetings on torture but condoned them, Thomas asked:

THOMAS: The President has said publicly several times, in two consecutive news conferences a few months ago, and you have said over and over again, we do not torture. Now he has admitted that he did sign off on torture, he did know about it. So how do you reconcile this credibility gap?

MS. PERINO: Helen, you’re taking liberties with the what the President said. The United States has not, is not torturing any detainees in the global war on terror. And General Hayden, amongst others, have spoken on Capitol Hill fully in this regard, and it is — I’ll leave it where it is. The President is accurate in saying what he said.

THOMAS: That’s not my question. My question is, why did he state publicly, we do not torture —

MS. PERINO: Because we do not.

THOMAS: — when he really did know that we do?

MS. PERINO: No, that’s what I mean, Helen. We’ve talked about the legal authorities —

THOMAS: Are you saying that we did not?

MS. PERINO: I am saying we did not, yes.

THOMAS: How can you when you have photographs and everything else? I mean, how can you say that when he admits that he knew about it?

MS. PERINO: Helen, I think that you’re — again, I think you’re conflating some issues and you’re misconstruing what the President said.

THOMAS: I’m asking for the credibility of this country, not just this administration.

MS. PERINO: And what I’m telling you is we have — torture has not occurred. And you can go back through all the public record. Just make sure — I would just respectfully ask you not to misconstrue what the President said.

THOMAS: You’re denying, in this room, that we torture and we have tortured?

MS. PERINO: Yes, I am denying that. Elaine, did you have one?

ELAINE (?): I have one on Zimbabwe, actually.

THOMAS: Where is everybody? For God’s sakes.

Helen, oh Helen. Marry me?

In May, the indomitable Ms. Thomas took ill and her seat in the briefing room has remained empty since (mostly). Her persistent and insightful challenges to the office of the president have set the bar for all White House correspondents. Especially in light of this administration’s consistent and flagrant disregard for the rule of law and Congress’ on again, off again relationship with oversight, Ms. Thomas is more valuable than ever. Here’s hoping for a speedy recovery and several more years of throwing rocks at the thrown.

Ms. Thomas, there’ll never be another like you. Happy birthday, ma’am.

P.S. Hey Congress, hope you’re enjoying your break. I know I’m enjoying your vacation. Just a reminder: Let’s make sure you pass a strong shield law when you get back.

Two of the ACLU’s brightest stars on privacy and law enforcement, Jay Stanley and Mike German, wrote a great report last year entitled "What’s Wrong with Fusion Centers?" that outlined, well, what’s wrong with fusion centers. Fusion centers — also known as one-stop shopping for identity thieves — were brought about in a post-9/11 effort to get federal and local law enforcement talking to each other.

Of course we want law enforcement sharing truly relevant information. But hoarding information like medical records, tax information, credit scores, etc. is effectively throwing more hay onto an already massive stack and that won’t make us safer.

Fusion centers, why do we distrust you so? Let me count the ways:

• Ambiguous lines of authority. Who is the boss of you exactly? So many jurisdictions and no clear lines of authority make us nervous.
• Private Sector Participants. You’re BFF with those guys. Using private-sector companies and corporations to get information about me makes me worry about who has access to that information. And, frankly, it only makes me like you less.
• Military Participation. Ever hear of Posse Comitatus?
• Data Fusion = Data Mining. A lot of hay means a lot of ways to sift through that hay and a lot of hay sifters sifting through that hay. Listen. Bottom line — enough with the hay. You are data mining. Knock it off.
• Excessive Secrecy. You keep telling me to trust you baby, but you’re always keeping secrets. Without oversight and uniform guidelines that means no real rules and that doesn’t work when you’ve got our information at your fingertips.

In fact, it has already resulted in information theft at Camp Pendleton, Calif.. Check out that link then tell me you’re going to sleep ok tonight knowing police officers and military personnel conspired to steal personal information, transferred it across country and housed in a storage locker in Manassas, Va. A storage locker in Manassas…

Some of you may have heard of the great work done by our Maryland affiliate in the realm of domestic spying. After filing a Freedom of Information Act lawsuit, our colleagues in Maryland received documents outlining the infiltration of nonviolent peace groups and anti-death penalty groups by police officers. Gross. (P.S. Virginia, if you wanted to file your own FOIA on fusion centers you’re too late. Kthxbai!!!!)

Here’s the creepiest part. Fusion centers aren’t just a mystery to us, they’re a mystery to the people running them, the people working in them and the people’s whose information is stored within them. Forget about the left hand, the right hand doesn’t know what any other part of the body is doing. There needs to be strict oversight. There need to be structured, uniform and comprehensive guidelines that protect our sensitive information. Or we’ll likely find it in a storage locker in Manassas.

Salon’s Tim Shorrock posted a pretty interesting story today on a "movement" to investigate the abuses of the Bush Administration – an investigation based largely on the Church Committee.  Clearly I’ve linked to some background info on the Church Committee but if you’re disinclined to follow that link, you should know right off the bat that the Church Committee scrutinized the abuses of the Nixon Administration and those before it, the end result being the Foreign Intelligence Surveillance Act of 1978.  Yes.  That one.

Beyond the push for an investigation of past conduct, Shorrock also drops a few new bombs and describes a database that may be one of the missing links in the discussion and debate over the president’s warrantless wiretapping program:

Dating back to the 1980s and known to government insiders as "Main Core," the database reportedly collects and stores — without warrants or court orders — the names and detailed data of Americans considered to be threats to national security.

There are more than a few interesting points in this article but here’s a quick rundown:

• A search engine known as the Prosecutors’ Management Information System (or PROMIS) was the basis for Main Core which uses the Google-like technology sort through insane amounts of data for the NSA and CIA.  It’s bigger than we ever thought.
• Shorrock quotes a piece in Radar saying, "8 million Americans are now listed in Main Core as potentially suspect."  Chew on that, America.  A group of you roughly the population of New York City is considered to be a threat to your country. 
• Vice President Dick Cheney, Donald Rumsfeld and David Addington (who I’m increasingly convinced was put on earth to shred the Constitution with his bare hands) were all a part of the Reagan Administration – the administration that saw the birth many of the surveillance projects, tools and initiatives still in use (and more powerful) under the George W. Bush Administration.  Coincidence?  That’s what we call a "fat chance." 

Though it’s unclear how seriously the idea of a new Church Committee is actually being taken up on the Hill, it’s clear that some kind of investigation should happen.  No matter what you think of either presidential candidate it’s difficult to put the proverbial genie of wider executive power back in the bottle and both candidates will have a hard time letting go of the constitutional breathing room George W. Bush and his administration have pilfered over the last seven years. (Also, FYI, the House Judiciary Committee is holding an interesting hearing this Friday on Imperial Presidency of George W. Bush.  Bring popcorn.)

And, since it just passed the FISA Amendments Act of 2008 giving increased surveillance power to the executive, it’s unlikely that Congress will be eager to see exactly how big of a mistake it made by learning the details of the warrantless wiretapping program AFTER the fact.  The point is maybe Congress should have had the guts to do this two and a half years ago when the New York Times originally revealed the president’s end run around FISA.  You have to appreciate the hearty serving of irony when there’s talk of recreating the body that created FISA to protect Americans by the very people who eviscerated that law earlier this month.

This point is best summed up by Shorrock in my most, most favorite part of his piece:

The Democrats’ reticence on such action ultimately may be rooted in congressional complicity with the Bush administration’s intelligence policies. Many of the war on terror programs, including the NSA’s warrantless surveillance and the use of "enhanced interrogation techniques," were cleared with key congressional Democrats, including Pelosi, Senate Intelligence Committee chairman Rockefeller, and former House Intelligence chairwoman Jane Harman, among others.

BTW, Salon’s having a hell of a day as Glenn Greenwald has posted his thoughts on AT&T sponsoring the Democratic Convention in Denver.  Shameless, guys.  Absolutely shameless.  Wouldn’t it be great if those things said, "I Handed the Telecoms Blanket Immunity and All I Got Was This Lousy Tote Bag"?

If you’re like the ACLU you believe in privacy, the Fourth Amendment and the fact that Congress just did an unforgivable thing to both by passing the FISA Amendments Act of 2008. And, if you are like me and a few others I know, then you spent last week anticipating then reveling in the release of The Dark Knight. If you’re with me on all of those counts, then you probably found a particular scene in the latest Batman to be as timely as I did.

Spoiler alert!

Towards the end of the film, the Caped Crusader asks one of his trusted confidants to conduct broad and invasive surveillance on the citizens of Gotham by essentially turning every cell phone into a microphone to locate a certain and marvelously played villain. That confidant (played by Morgan Freeman who is pretty much amazing in all he is and does) initially has the correct reaction saying, “It’s not my job to spy on 30 million people.” Wow. Imagine if that happened in real life…

Well, unfortunately, like the telecoms before him, Mr. Freeman’s character reluctantly goes along with the plan saying he’ll resign and terminate the program after “this one time.” <Sigh>

At least he didn’t ask for immunity.

George Washington University law professor Jonathon Turley was on WNYC last week giving us props for filing our FISA lawsuit. He also got into an issue that hasn’t had much play yet but certainly will - how journalists and their work will be affected. We at the ACLU already knew that as more than one of our clients is a journalist (in fact, read Chris Hedges’ fantastic piece in the Los Angeles Times from last week). Ah, the merging of two of my favorite issues - FISA and protecting the public’s right to know.

The beauty of the Turley interview, however, is the segue from the media’s role in uncovering the president’s warrantless wiretapping program (which prompted the FISA debate) to the need for a media shield law. When the host, Brooke Gladstone, asked Turley if a shield law was needed he replied:

It has never been more important. Imagine if reporters didn’t do what they’ve done in the last few years. Imagine if The New York Times didn’t reveal the domestic surveillance program. Clearly, Democrats and Republicans knew about it, and so they were not about to reveal it.

Turley also goes so far as to say this is “the golden age of investigative reporting.” Sing it!

Listen, maybe I’m preaching to the choir but it can’t be said enough that journalists play a crucial role in our country today. Especially with a Congress that takes its cues directly from an abusive and morally corrupt White House. Who will conduct the oversight when Congress fails to or is prevented from doing so? The Fourth Estate, son!

So Congress failed us (miserably, thank you) on the FISA Amendments Act. Now, for a change of pace, they have the opportunity to make up some ground by passing a reporters’ shield bill that is worthy of our country’s faltering democracy. Legislation was passed by the House last year and is currently hanging out in the Senate. Cross your fingers and watch this space.

Today’s the day, folks. Start dialing your international calls now while you still have some assurance of privacy.

Reid came on the floor and set up the rules. Debate will continue then votes on the amendments — Dodd, then Specter, then Bingaman.

Senator McConnell: "Blah blah blah compromise blah blah blah thanks to Bond’s leadership blah blah blah…"

Then Bond spoke, saying that the Senate Select Committee on Intelligence was created as and should be the only vehicle for oversight. May I say, you’ve not done a great job, sir. Even Rockefeller, whose capitulation on immunity is insane, thought the program was out of line and went so far as to keep a sealed letter in his desk disavowing it. And look where we are now. Bond also called out "far left editorial writers." Wink, wink NYT!

Hatch followed Bond and attempted to rebut points made on the floor yesterday while also tearing down those who have suits against the phone companies. He argued that no one in the government has the time or inclination to monitor random domestic phone calls. Well, whether they have the time or inclination they’re about to get the ability to do so, so thanks.

Hatch also repeated Bond’s strange and likely baseless argument that, if the lawsuits go forward, phone companies will suffer consequences including possible physical threat to their employees. Can someone explain that to me? Who is circulating that talking point? What the hell is going on?

Feingold on Hatch’s remarks that the majority of the Senate being in the dark on the specifics of the program: "Wow." He smacked down Hatch’s condescending remark that it’s the "black helicopter crowd" that is concerned with this saying, "It could not be clearer that this program broke the law and this president broke the law."

Feingold’s walked us through the history of this issue, starting before the New York Times broke the story. (Here’s a little history lesson from the ACLU.) He brought up that old Authorization to Use Military Force (AUMF) story. You know, the one where the administration claimed Congress gave it the go ahead to wiretap without warrants when it passed the AUMF? That should have been another red flag that this administration is crazy-go-nuts for ridiculous legal interpretations. (BTW, here’s an old and fantastic story on TPM that I just found — check the date on that baby.) Then the administration was all, "No, no, no. The president’s got Article II authority." Wasn’t it clear when it was scrambling for prior legal cover that the administration knew it was caught with its hand in the cookie jar?

Feingold also said that, as a member of the Intel committee, he’s seen all the documents and has been read into the program and, "members of this body will regret we passed this legislation." If only that would resonate…

Leahy is Leahy and I love him. Oh my goodness, I love him.

Specter followed Leahy and said passing this law without knowing the full details of the program is like buying a pig in a poke. It’s been a while since I’ve heard that and he’s right. It can’t be said enough that senators are voting on something that the majority of them have little or no context for. Once this bill passes and these amendments are voted down, it’s done. DONE. Everything you always wanted to know about the president’s domestic spying program will remain a mystery.

Senator Sanders just took to the floor and spoke for less than a minute but said everything that needed to be said. We’re all for finding terrorists and preventing attacks but we must remain within the bounds of the Constitution. Sanders out.

Since votes came up quicker than I can type, I’ll quickly summarize:

1. Bingaman speaks on his amendment.
2. Dodd is up — he had a great line thanking the blogs, advocates and private citizens who have inserted themselves into the debate saying, "Not one of them had to be involved but they chose to be." Awwww.
3. Rockefeller spoke and bizarrely called it a farce that the administration was claiming that, right after the story broke, "Congress had been briefed" when in reality only four members had been. Strange line to draw when the vast — VAST — majority of members still haven’t been fully briefed.
4. Cantwell was next and wisely the point the language of the bill is written so vaguely that it will allow for the "broad expansion of authority to conduct domestic surveillance."
5. Then Nelson, another member of the Intel committee who has been fully briefed, reiterated that he is against blanket immunity and offered an amendment against it in committee.
6. Bond spoke again and made some snarky comment about briefing the New York Times with sensitive material. Sigh.
7. Dodd followed with a last-minute plea for his amendment. It didn’t work. The Dodd amendment failed, 32-66.
8. Specter followed with a last-minute plea for his amendment. It didn’t work. The Specter amendment failed, 37-61
9. Bingaman followed with a last-minute plea for his amendment. It didn’t work. The Bingaman amendment failed, 42-56

Final passage will be around 2 or 2:15. Stay tuned and don’t do anything foolish in the meantime. We’ll get through this.

Update: After the amendments were effectively killed – along with any possible hope of court review of the president’s illegal and unconstitutional domestic spying program (can’t say that enough) – the votes for final passage were counted.

The votes were cast and so was the die. Final count: 69 to 28.

I can only say it’s been emotional. This isn’t the last you’ll be hearing from the ACLU on this subject — in fact, far from it. Keep an eye on this space for our continued and tireless work protecting the Fourth Amendment (and all the other ones, too, come to think of it).

It’s been a long day so here’s a quick highlight reel from the last few hours:

• Senator Specter introduced his immunity amendment.
• Senator Whitehouse spoke against immunity and described the whole situation as the Bush Administration’s “self-inflicted wound.” Nice.
• Senator Levin spoke in favor of the Bingaman amendment, too. Makes me proud to be from Michigan.
• Senator Chambliss read his speech (for the bill, not shockingly) as quickly and as free from emotion as possible. It was like he was presenting a book report.

Seriously, if one more senator talks about the need for immunity for future cooperation, I’m going to throw my computer out the window. For the 582nd time, FISA requires that telecommunications be legally compelled to hand over information if the proper legal requirements are met. Remember Feingold’s speech this morning?

Senator Reid came on the floor. Announcement: The man who scheduled the vote will be voting against the bill…so logic and democracy are alive and well in the halls of the Senate.

Reid said they may be able to revisit some of these issues during Patriot Act reauthorization next year. (Hot tip – Patriot will be a pretty interesting fight in and of itself and the ACLU plans to be on the front lines.)

Reid also believes Title 2, immunity to you and me, is “way out of line.” I just wish he had fought a little harder against it. It’s not the will of the people, it’s the power of the purse that’s allowed this provision to get this far and that, my friend, goes against the very ideals this country was founded on. I know it’s true because I saw the HBO series John Adams last week.

Dodd came next. A tireless warrior on immunity. I tip my hat. He really encapsulated this fight well. He said he believes that the choice between liberty and security is a false choice. We at the ACLU should feel a kinship with Senator Dodd because, even as we stare down a likely and depressing defeat, we don’t for a second think about not going down swinging. No matter what happens tomorrow, we’ll keep fighting this and other constitutional battles without fatigue until, well, forever.

Debate begins again. Senator Bond is on the floor once again saying plainly and, frankly a little smugly, that the FISA Amendments Act is the Senate bill with "cosmetic" fixes for the Democrats. Boasting is unattractive, Senator Bond. (BTW, why can no one in Congress pronounce "exigent" properly? Does that make you feel confident about their ability to discuss and legislate on these intricate matters? Me, neither.)

Bizarrely, Bond keeps railing about phone company employees being in physical danger if these lawsuits go forward. He goes so far to say that the phone companies are akin to our fighting men and women and we should not leave them unprotected as we would not leave our troops unprotected. Ladies and gentlemen, we have officially fallen down the rabbit hole.

Bond also argued that these lawsuits would destroy the phone companies’ reputation: Do the phone companies have a good reputation? I was completely unaware.

Specter came on to the floor to battle Bond Specter said the Supreme Court "ducked" the issue. Yes they did, sir. Yes they did.

(Notice not a lot of senators are talking about Title 1 — the actual wiretapping provisions. Today is all about immunity — clearly because that’s all the amendments address. But don’t for one second forget what is at stake for the Fourth Amendment in this debate.)

Senator Bingaman introduced his amendment which would stay the cases against the telecoms until after the inspector general reports (mandated in the bill) are complete. Kind of makes sense. Unfortunately, like all things aimed at making this bill easy to swallow, there’s a saying about a snowball and hell that I’m reminded of.

Rockefeller claimed that Bingaman’s amendment would "undo the very carefully constructed compromise" that was reached between the House and the Senate. I still don’t understand how anyone can call this immunity provision a "compromise" with a straight face. If I could take a moment to pledge my undying love for The New York Times editorial board on this issue, that would be great. The Times offers a fantastic smackdown of what Rockefeller deems a "compromise." Enjoy.

Rockefeller claimed that Bingaman’s amendment satisfies the "particular need of a particular senator." Of all the ridiculous and condescending things to say.

Thank god. Leahy came onto the floor to rail against the bill. He spoke eloquently spoke about Americans’ right to justice and to take their concerns to the court. Leahy on wiping out the courts’ role with the immunity provision: "Not just a heavy thumb on the scale of justice but a whole hand and arm." (!!!!!!!!!!!!!) God, I wish I had written that.

Very short break in debate. Specter’s amendment is up next. More (sigh) to come…

Yeah, me too. Ever lived it?

The Senate is taking up the FISA Amendments Act once again. Today they’ll be debating it on the floor and then they’ll vote tomorrow morning. Listen. It doesn’t look good. Here’s a quick rundown of the first bit of debate.

Senator Cardin spoke first then Senator Feingold came to the floor giving Senator Dodd props on his immunity work. He called the immunity provision a "rigged process" thereby cementing his place in my heart. Feingold also notes that at least 70 senators have not seen the documents outlining the legal underpinnings of the program that the Intelligence and Judiciary committees have had access to.

The senator from Wisconsin goes on to makes several sound and reasonable points including the fact that current law already grants immunity to phone companies that cooperate with the government. All they need is a court order or a certification from AG that it meets statutory requirements. Little known fact: FISA instructs phone companies to reject anything less. So why didn’t they?

Senator Specter came to the floor and interrupted to discuss Judge Vaughn Walker’s recent decision in the Al Haramain case and its effect on the debate. For a quick wrap up, check out EFF’s site.

(Fun Fact! Judge Vaughn Walker, along with having a pretty sweet name, is also the judge that is sitting before all of these infamous telecom cases. He may have some free time open up if the Senate goes through with this. The gut-wrenching part is the Al Haramain decision gives the indication that Judge Walker may believe the president’s domestic spying program to be as constitutionally sturdy as a two-legged stool. With a vote on immunity less than a day away, the glimmer of court review hope is fading fast.)

Oh, hi Senator Rockefeller. What’s that? You oppose Senator Dodd’s amendment? Would it also be a fair assumption that the Pope is, indeed, Catholic?

(Side note — Allow me to explain why the exclusivity provision that Rockefeller spoke about is backwards. If you rewrite FISA to be toothless, with superficial court review and flimsy standards, and then claim it is the exclusive means of wiretapping you pretty much save any president — present or future — from the temptation to circumvent it. So, nicely done fellas.)

Specter interrupted again to challenge Rockefeller with Feingold’s point that they will be granting immunity for a program many in the Senate do not understand. Rockefeller’s rather, no, incredibly weak response is that those senators who were read into the program at the beginning weren’t even allowed to talk about it so the mere fact that the Intelligence and Judiciary committees have had access to those documents is a huge step forward. Personally, that sounds like what my mother would call "horse pucky."

Bear in mind, sir, you’re voting on a bill that would essentially – and forever – erase any hope of anyone outside those few senators having anything but a primitive understanding of one of the largest executive power grabs of our time. The fact that ¾ of your colleagues haven’t had the opportunity to peruse those documents is a big deal, got it? Especially when you consider how many of them (Feingold, Wyden, Whitehouse, etc.) have seen the documents and still think the administration’s rationale is bunk.

Speaking of bunk, did you see that Attorney General Mukasey and the Director of National Intelligence Mike McConnell sent a letter to Senate Majority Leader Harry Reid yesterday once again letting him know that they would advise the president to veto the FISA Amendments Act of 2008 if it included the Bingaman amendment or anything else stripping blanket immunity?

Ummmmmmmmm. Why would you veto a bill you claim is so painfully vital for our nation’s intelligence community? What kind of logic is that? Maybe because you know if the cases move forward the details of your warrantless wiretapping program will be revealed? Yeah, that’s what I thought. Also, please stop insulting our intelligence by claiming immunity is about national security. It’s about covering your, well, you know.

Debate resumes again around 2:15. More to come…

CORRECTION: A previous version of this post gave the wrong year of the FISA Amendments Act. The correct year is 2008, not 2007.