The recent Sixth Circuit court dismissed an ACLU wiretapping suit on the bizarre, Kafkaesque grounds that the organization couldn't sue because they couldn't prove they had been harmed. Even though the records which could answer the question remain classified, the court ruled that a “reasonable expectation” their organization's name would be found in the domestic warrantless surveillance program's target lists didn't give them enough 'standing' to claim injury and advance their lawsuit.
It's not just the ACLU who has reason to believe their communications were intercepted by the NSA. The intelligence agency was running a 'data-mining' program under the authorization of a presidential order signed by Bush in 2002. For three years, without informing Congress, Bush and the NSA had been monitoring telephone calls and e-mail messages of thousands of United States citizens without warrants.
The sixth Circuit's ruling, while stifling ACLU attempts to crack the domestic spying program open for inspection, did not get as far as deciding the issue of whether the program had actually violated the FISA Act; or ruled on it's constitutionality under the First and Fourth Amendments. The reason Bush is so eager to have Congress pass a series of accommodations to the Justice Dept's questionable exercise of the surveillance law is to preempt any other legal challenge which might force them to end the practice.
More important to the Bush administration is to have Congress join them in codifying their warrantless spying by merely agreeing to modify it; instead of pressing forward with their determination that Bush actually broke the law they already had in place. In his radio address today, Bush complains that the FISA law he ignored for the three years he was sneaking around it, is "out of date," despite his neglect in saying anything at all to Congress in that period about 'updating' it.
He preferred, instead, to hide his actions from Congress and the American people; even today with his continued refusal to provide the public (or Congress) with the knowledge of which of our citizens' private communications was subject to NSA intercepts.
Bush's sudden interest in pressing Congress to pass his FISA revisions "before they leave town," has to also be seen as an attempted insulation of his embattled Attorney General, Alberto Gonzales. Repeatedly forced into perjurious contradictions as he's defended Bush's surveillance programs before congressional committees, Congress is demanding Gonzales explain his previous testimony that his late-night dash with the FBI chief into Ashcroft's intensive care ward in 2004 had nothing to do with the data mining operation. Democrats are especially interested in FBI Director Mueller's testimony this week, in which he clearly contradicted Gonzales, saying that the conversation at Ashcroft's bedside was, in fact, all about the "much discussed" surveillance program.
Bush quoted Mike McConnell, the Director of National Intelligence, in his address, as he complained of being "significantly burdened" because Congress hasn't given his agency the absolution he demands from the legal restraints FISA provides that he's already ignored. While giving lip-service to 'civil liberties' and 'privacy' interests, one of the provisions Bush mentioned would change the law to allow them to "work more efficiently with private-sector entities like communications providers" -- much like the administration did when they secretly conspired with nation's telecommunications giants to get them to the point where they could manipulate the transmissions so that their intercepts would be technically legal.
Today's report in the NYT, quoting 'current and former officials' who witnessed a near mutiny over the data-mining program in it's inception, suggests a spying effort which was even larger than previously disclosed. Despite the vain, transparent attempt by the paper to provide Gonzales cover by suggesting the existence of some other program Mueller could have been referring to -- parsing the difference between 'eavesdropping' and 'data-mining' -- there should be no question that the entire effort by the administration was to subvert the requirements of the FISA, especially the warrants.
On July 26, Senate Judiciary Committee Chairman Patrick Leahy sent a letter to Gonzales giving him a chance to avoid perjuring himself further, giving him an August 3 deadline to change his tune. But it looks like the WH is intent on standing their ground on their convoluted explanation that Mueller couldn't have contradicted Gonzales because, in doing so, he would have to reveal national security secrets; so desperate to avoid having their their tacky, despicable attempt to steamroll the sedated Ashcroft devolve into a full-blown perjury investigation that they were willing to (partially) reveal yet another one of their illegally operated, domestic spying schemes.
It just makes sense that, before we even consider allowing this administration (or any other) to unravel the protections provided under the Foreign Intelligence Surveillance Act , that we demand and ensure -- through the courts as well as in the legislature -- that there is enough of an incentive to comply by tightening review and enforcement provisions. At the very least, we should continue to demand that this administration be held accountable in court for the FISA laws (and others) they've already admitted breaking.