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?

The ACLU of Illinois’ legal director, Harvey Grossman, is co-counsel in the case with attorneys from the Electronic Frontier Foundation. Harvey wrote after President Bush obliterated the Fourth Amendment by signing the FISA Amendments Act:

We intend to challenge all efforts to dismiss our cases. We believe that our clients deserve their day in court. Moreover, we believe that pursuing these cases is the only way that the American people will ever know the scope and breadth of the White House’s illegal spying program — since Congress rejected even a straightforward proposal to delay providing immunity to the telecoms until after the Congress conducted a full-fledged investigation of the president’s illegal program.

Our fingers are crossed!

The New York Times reports:

F.B.I. officials said the incident came to light as part of the continuing review by the Justice Department inspector general’s office into the bureau’s improper collection of telephone records through “emergency” records demands issued to phone providers.

This record collection joins a litany of FBI abuses which first came to light in March, when the Inspector General (IG) released a report (PDF) that found that the bureau has been abusing its use of National Security Letters (NSLs); they issued 200,000 NSL requests between 2003 and 2006. An IG report from March 2007 (PDF) found "instances of illegal or improper use of national security letters."

Pending before Congress are two bills, brought by Rep. Jerry Nadler (D-N.Y) and Sen. Russ Feingold (D-Wis.) to narrow the scope of the FBI’s NSL authority. The ACLU supports both S. 2088 and H.R. 3189, and we’re hoping both bills will move through Congress this fall, when the IG’s next report on the FBI is due.

The first and, in my view, strongest constitutional objection to telecom immunity is that it constitutes a usurpation by the Congress and the President of the “judicial power” which the Constitution assigns to the judicial branch. Article III, Section 1, provides that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” while Section 2 specifies that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.”

The lawsuits brought against the telecoms by their customers were brought pursuant to the Constitution and the laws of the United States, as those suits allege that the telecoms violated both the constitutional rights of their customers and federal law. Thus, adjudication and resolution of those lawsuits are the definitive “judicial powers” which the Constitution assigns to courts, not Congress or the President.

When immunizing the telecoms, Congress was not enacting a broad, generalized policy that falls into the scope of the “legislative power” constitutionally assigned to Congress by Article I, Section 1 (”All legislative Powers herein granted shall be vested in a Congress of the United States”). Rather, what Congress was doing was deliberately intervening into pending lawsuits in order to resolve factual and legal issues in favor of one of the parties — the telecom-defendants.

Indeed, the chief Congressional advocate of telecom immunity, Senate Intelligence Committee Chairman Jay Rockefeller, repeatedly stated that he favored telecom immunity because, in his views, the telecoms had acted “in good faith” when cooperating with the Bush administration’s requests to enable illegal spying. And the formal Report of Rockefeller’s Committee repeatedly emphasized, when justifying its support for immunity, its belief that telecoms acted in “good faith” — a finding they reached by examining precisely the evidence and other documents that the court (or a jury) would have examined in order to resolve the telecom cases:

But whether telecoms acted “in good faith” was precisely one of the key factual questions that would have been adjudicated in the telecom lawsuits. The 1978 FISA law already provided that telecoms would be immunized from liability if they acted in the “good faith” belief that what they were doing was legal (see 18 U.S.C. 2520(d)). Thus, the very issue which Sen. Rockefeller and the Congress generally purported to resolve when enacting telecom immunity — namely, whether the telecoms acted “in good faith” by cooperating with the Bush administration’s spying program — was to be resolved by the court as part of the telecom lawsuits. If anything qualifies as a “judicial power,” it is the resolution of those sorts of factual disputes that exist between adverse parties in a lawsuit by examining the relevant evidence. By purporting to resolve that question in favor of the telecom defendants, and by preventing the court from doing so, the Congress usurped a definitive “judicial power” that is reserved by the Constitution for the courts. Congress has simply denied the courts their central, constitutionally assigned role.

A related ground for challenging the constitutionality of retroactive telecom immunity is a straightforward “Due Process” challenge under the Fifth Amendment, which provides that no citizen shall “be deprived of life, liberty, or property, without due process of law.” Telecom customers who had their private communications turned over to the Government in violation of the law have clearly been deprived of property — the right to sue telecoms — without a smidgen of legal process. Instead, Congress has simply intervened in the lawsuit and ruled that the defendants are right and the plaintiffs are wrong.

The Electronic Frontier Foundation’s Cindy Cohn, counsel to plaintiffs in the telecom cases, said: “our clients have the constitutional right to have their cases decided in a court, not by Congress.” Congressional intervention in pending lawsuits for the purpose of deciding the dispute in favor of one of the parties seems clearly to be the sort of denial of property without due process of law that the Fifth Amendment was designed to prohibit.

Independently, it is worth noting here that several of the claims asserted by the plaintiffs in the telecom cases are constitutional in nature — that telecoms have enabled violations of the Fourth Amendment and other constitutional rights of their customers. It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations. For this reason, Congress lacks the authority to enact statutes to deny remedies for constitutional violations. At the very least, the telecom immunity provisions should be held inapplicable to foreclose the plaintiffs’ constitutional claims.

There are, as well, substantial due process problems with the extraordinary secrecy provisions in the FISA Amendments Act. Section 802(c) of the telecom amnesty section actually provides that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won’t ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they’re being dismissed or what the basis is for the dismissal.

So basically, one day in the near future, we’re all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we’re never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won’t we, the public, know that, neither will the plaintiffs’ lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. It is impossible to understand how such secret Star Chamber proceedings can be reconciled with basic precepts of due process. EFF’s Cohn said: “Our clients have the right to know why their cases are being dismissed and what the rationale is for the dismissal.”

A further potential constitutional infirmity with telecom immunity is that it constitutes a “taking” without “just compensation” in violation of the Fifth Amendment. When they commenced their lawsuits against their telecom carries, the plaintiffs possessed something of clear value: namely, the right to sue under FISA and other laws for privacy violations and illegal spying. By retroactively removing those rights, the FISA Amendments Act have, in essence, deprived those plaintiffs of something of tangible value, a government “taking” which the Fifth Amendment allows only in exchange for “just compensation.”

The legal rationale and precedental support for this argument was comprehensively set forth in a Findlaw article by Professor Anthony Sebok at the Benjamin N. Cardozo School of Law. Professor Sebok points out that in other instances where the Congress sought to deprive citizens of existing legal rights — such as when Congress sought to deprive 9/11 victims of the right to sue airlines and World Trade Center owners — Congress provided an alternative form of relief to constitute “just compensation” (in the case of the 9/11 attacks, it created the 9/11 Victims Compensation Fund in lieu of being able to sue in court). As Professor Sebok reasoned:

In fact, throughout the recent history of federal responses to various liability crises, the pattern has been the same: The elimination of causes of action has always been linked to some kind of quid pro quo, whether it took the form of a guaranteed payment, such as for the 9/11 victims’ families, or access to a special court, such as in the case of childhood vaccines. . . .

to read the newspaper reports of the debate in the Senate over the reauthorization of the Foreign Intelligence Surveillance Act (FISA), it is as if this familiar, long history of immunity-for-compensation has been forgotten. The Republicans want to add to FISA a provision that would simply wipe away the lawsuits that have already been filed without any compensation at all. . . .

generally, the idea that a cause of action, once it vests, cannot be retroactively eliminated lies deep in the roots of our common law and constitutional tradition. That idea was one reason why the Senate did not just immunize the airlines and other defendants after 9/11. The reason for creating the Fund was not just that they wanted to help the families of the heroes who died on that day, though surely they did. It was also that they would have kicked up a firestorm of litigation had they tried to cut off the right to sue without offering any compensation in exchange.

It has been widely assumed since enactment of the FISA Amendments Act of 2008 that dismissal of the telecom lawsuits is a fait accompli. But the ACLU and EFF intend to contend that the telecom immunity provisions of the Act are unconstitutional, and there are numerous grounds that enable a persuasive case to be made. This is a battle, both legally and politically, that is far from over.

ThinkProgress reports that Sen. Brownback, who voted for the Bush administration’s warrantless wiretapping program twice—once last year for the Protect America Act and just last month for the FISA Amendments Act—is just outraged over this.

When asked about the difference between the Chinese and American spying practices, Brownback said, "We don’t put the hardware and software on hotels." He added that the Chinese program can be used "on journalists," "on athletes," "on their families," "democracy advocates," and "human rights advocates" — seemingly oblivious that all these groups could be spied on here as well.

Threat Level also sagely points out that the government, via the FBI, was already spying on advocates, as our Freedom of Information Act request revealed.

Now, we actually agree with Sen. Brownback that this is outrageous; we don’t believe in that kind of surveillance, period. But where are your priorities, Senator? Is protecting the privacy of Olympic tourists more important that protecting Americans’ right to privacy? It’s in the Constitution, for chrissake!

A few weeks ago, the FISC ordered the government to respond to that motion, and late yesterday, the government did just that. It its response, the Bush administration asked that FISC not to accept any legal briefs from the ACLU or anyone else but the Justice Department, and that any review of the FISA law be kept secret. We can’t say we’re surprised by this.

Absolutely not…It’s always been a delicate balance between harnessing the tools at our disposal to solve crimes and prevent attacks and upholding the civil liberties of all Americans. Over the course of a century, we’ve made some mistakes, but they’ve been few and far between compared to the vast amount of work we do every day… After all, we live and work in our communities and cherish our country’s rights and freedoms like everyone else!

Huh? It’s been widely reported and proven that the FBI has been routinely spying on Americans since the 1970’s. It started with J. Edgar Hoover’s infamous COINTELPRO, a program established to spy on suspected Communists, anti-war groups, and other rabble-rousers like Dr. Martin Luther King Jr. and Eleanor Roosevelt, and ramped up after 9/11, through its Joint Terrorism Task Force (JTTF), a collaboration between the FBI and local law enforcement around the country. In fact, in May 2002, then-Attorney General John Ashcroft rewrote the guidelines for the FBI’s national security investigations to enable spying on Americans. The new guidelines read:

For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally.

Sounds like a green-light to spy on Americans to us.

Are we being too hard on the FBI? Perhaps the FBI’s myth-debunker missed the Department of Justice Inspector General’s report (PDF) released in March of this year that found that the FBI has been abusing National Security Letters (NSL) — those nasty, warrantless demands for information that have been found unconstitutional by the courts — to the tune of almost 200,000 NSLs issued between 2003 and 2006.

And while they can’t held directly responsible, the FBI is the Big Brother of another agency committed to keeping tabs on Americans’ private affairs, whether it’s legal or not: the Department of Homeland Security (DHS), which also celebrates a big birthday this year.

"We’ve made some mistakes?"  A bit of an understatement.  Maybe they should think about working better, not harder.

There was such an atmosphere of intimidation. … They felt so endangered in some ways that, at one point, two of the top lawyers from the Justice Department developed this system of talking in codes to each other because they thought they might be being wiretapped…by their own government. They felt like they might be kind of weirdly in physical danger. They were actually scared to stand up to Vice President Cheney.

One such attorney, speaking of those in the Bush administration, reportedly told Mayer: "I can’t, I could not believe these lunatics had taken over the country."

It sounds almost…crazy.

Since its inception 100 years ago this week, FBI has been assigned with an increasingly difficult task: protecting the public welfare in a free and democratic society.

Throughout its history, the FBI has achieved moments of glory and succumbed to periods of shame. At its best it has achieved some praiseworthy accomplishments — the enforcement of civil rights, significant disruption of organized crime, and the arrest of violent criminals. But at its worst, it has resembled a force of “political police” targeting those who seek change, whether in the Palmer Raids, the Red Scares, or in the widespread abuses of COINTELPRO and surveillance of Rev. Dr. Martin Luther King, Jr and other nonviolent activists.

These were dark periods in the FBI’s history, when it violated the civil liberties it is tasked to protect and placed our democracy and freedom in jeopardy.

Unfortunately, since 9/11, it appears that the lessons of these abuses have been forgotten. Operating under a cloak of secrecy that is par for the course for the current administration, the FBI has slid once again toward lawlessness and overzealous surveillance to the detriment of our security and our liberty — the FBI’s abuse of National Security Letters, renewed spying on political activists and the draft changes to the attorney general guidelines that embrace racial profiling are just a few examples.

Law enforcement cannot effectively operate unless it has the support and trust of the public it protects. And the public cannot embrace an agency that operates in shadows, acting with impunity and viewing every member of society as a suspect. The FBI needs to clarify its mission, to turn away from strategies that involve viewing every member of society as a suspect, and overseeing the construction of a de facto domestic intelligence agency.

Over the next 100 years, we hope that the FBI learns from the mistakes of the past and present. History will show that as a society we can be both safe and free. Hopefully, the FBI will learn this lesson soon.

Mike German is Policy Counsel for National Security, Immigration and Privacy at the ACLU, and a former FBI Special Agent.

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"?