Whatever else 9/11 is, it is an extraordinarily personal trauma. It comes to consciousness within its own hall of mirrors, images and thoughts appearing un-summoned and then disappearing before they are neatly understood.

It is the day we fell to earth, and with that thought my mind leaps and I’m in a limo on a New Mexico highway with David Bowie’s alien in Nicolas Roeg’s film, The Man Who Fell to Earth. I glance out the window at a white horse that seems winged as it glides beside our car. Like Bowie’s character, Thomas Jerome Newton, I ride the horse into memory fields as the song from The Fantasticks, “Try to Remember,” whispers like the ghost of irony on the soundtrack.

Try to remember when life was so tender
That no one wept except the willow
Try to remember the time of September
When love was an ember about to billow
Try to remember and if you remember
Then follow, follow.

The Fantasticks? It’s a musical about two fathers who pretend to hate each other to trick their son and daughter into pursuing forbidden love, a conspiracy among modern Capulets and Montagues to marry Juliet and Romeo. Like I said, the thoughts come unbidden. Maybe I’m thinking about the destructive power of manipulation, about the arrogant and terrible fools who toy with the hearts of others out of their own ambitions.

Landscape With the Fall of Icarus, Pieter Bruegel

And then there’s another image in the mirrors, Bruegel’s Landscape With the Fall of Icarus, an image that also appears in Roeg’s movie. In the painting, life goes on as a tiny Icarus splashes unnoticed into the sea below. But if I try to draw a parallel between Bruegel’s Icarus and America, the thought falters. Surely we would notice if we fell?

Poet William Carlos Williams wrote about that painting. But it’s another Williams poem, “The Descent,” that offers hope of a way out of the hall of mirrors (pardon auto-formatted line-breaks):

The descent beckons
as the ascent beckoned.
Memory is a kind
of accomplishment,
a sort of renewal
even

Whether we know them as “collateral damage” or “civilian casualties,” slaughtered innocents deserve perpetual mourning from those of us who survive. If we are to find renewal, it will be the accomplishment of such memories, as Williams hints.

We like to think this was something new on our shores, but it was not. If we are to mourn the innocent dead, we have to include the indigenous Americans, don’t we? And many others: slaves, mineworkers, murdered protestors, the wrongfully condemned and on and on. Still, there are the ugly memories of brutal civilian carnage during the 20th Century’s great wars, and 9/11 taught us just how artificial our calendar is. The New Millennium was wishful thinking.

Panic and madness followed 9/11. The towers fell over and over again on our screens. Those in power puffed their chests and promised vengeance. We felt unsafe and uncertain, and power used those frightening images to scare us into giving them permission to war and to diminish fundamental democratic rights in the name of security.

In horrorshow ways, we responded to the falling buildings by jackhammering the foundations of our own social order.

It need not end there, though. Renewal is always possible. Didn’t William Carlos Williams tell us that? The universe is open, after all, and when the Dude abides, that’s what he’s agreed to.

How many millions of words about 9/11 have been uttered? How many experts, commentators, psychologists, and politicians have tried to tell us what that day means? Many today are critical of our repeated return to the events of 9/11. There is concern that it’s driven by commercialized sentimentality and the pursuit of ratings that repeatedly reward the attackers with renewed attention. There’s something to that criticism. And I’m uneasy with the task of explaining its meaning because I do not yet know what it is.

I get help excusing my tentativeness from Cathy Caruth, author of Trauma: Explorations in Memory:

The trauma is the confrontation with an event that, in its unexpectedness or horror, cannot be placed within the schemas of prior knowledge – that cannot, as George Bataille says, become a matter of ‘intelligence’ – and thus continually returns…

It was Ben Saunders’ cool essay on Spider-Man, American pop culture’s longest-lived meditator on the existential anguish caused by our ultimate powerlessness, super-powered or not, that pointed me to Caruth. Spider-Man is forever failing his own sense of justice and fretting over such traumas as the possibility he played an innocent role in the death of the woman he loved (Spider-Man No. 121).

I feel better about my wild and willful, post-9/11 stream of thought. I mean, if Spider-Man can hang with it, I oughta try. He asked, “What good is my fantastic power if I cannot use it?” (Spider-Man No. 1). I suppose the fathers of The Fantasticks asked themselves the same thing.

Another shattered community, the Beatles, came together again in 1995, virtually and long after John Lennon’s murder, to make a song from a tape Lennon had left behind. In “Free As a Bird” the Beatles sing:

Whatever happened to
The life that we once knew
Can we really live without each other
Where did we lose the touch
That seemed to mean so much
It always made me feel so free

Speaking for Icarus, for Spider-Man, for Bowie’s Thomas Jerome Newton, for the Beatles, and for post-9/11 America, an earthbound Lennon asks, “What’s the next best thing to be/free as a bird.”

The next best thing. That seems like an appropriate earthly prayer on this September 11, 2011.

pic via sflovestory at flickr.com

KABUL, Afghanistan, May 27 (UPI) — Improvised explosive device blasts in southern Afghanistan killed eight U.S. troops in one of the worst such attacks on record, military officials said.

And…

A NATO airstrike targeting insurgents inadvertently hit two civilian homes in the volatile southwestern Helmand province, killing 12 children and two women, an Afghan government official said Sunday…

He said NATO hit two civilian houses, killing five girls, seven boys and two women.

And about those “freedoms”:

US President Barack Obama approved the four-year extension of the Patriot Act on Thursday, May 26, 2011, while on his Europe tour.

Why fight to protect “freedom” — no matter whether the place is irrelevant or outdated — when you are so willing to sign them away?

One person's travels, courtesy of iPhone and the US government. (photo: CC Chapman)

As I’ve said repeatedly in discussions of the secret interpretations of the PATRIOT Act provisions that Ron Wyden and Mark Udall complained about, those interpretations probably claim the government can collect mass information on geolocation.

Julian Sanchez lays out why that is almost certainly the case in this worthwhile post. The three main points (there are several less crucial ones) are:

• The government has been using a hybrid approach–using a combination of pen registers and 2703(d) orders–to get geolocation data in criminal investigations with some support from courts; using pen registers with Section 215 orders could offer the same “hybrid” authorization
• The structure of Ron Wyden’s legislation aiming to rein in geolocation tracking starts with restrictions on FISA, which the criminal statute incorporates, but also includes explicit prohibitions on using pen registers and Section 215 to get geolocation information
• TruePosition’s LocInt service markets the ability to determine proximity, but doing so would rely on widespread collection of geolocation information

In other words, Sanchez lays out both the legal means we know the government has used to track geolocation, maps the legal means Wyden is attempting to use to curtail those legal means, and describes the technical necessity for widespread collection.

Which is a pretty compelling argument that the big rush to extend PATRIOT is about making sure this geolocation tracking doesn’t shut down over the Memorial Day weekend. So rest assured your government is tracking where you’re vacationing this weekend and with whom.

As I noted yesterday, the Senate passed cloture, by a 74-8 margin, on the motion to proceed for a four-year extension of key provisions of the Patriot Act. Final passage is expected Wednesday, so for a seminal civil liberties issue that has been in place nearly ten years, we will see essentially one day of debate in the Senate. As Glenn Greenwald points out, there is still bipartisanship in Washington when something like depriving civil liberties in the name of Terror has to get done. We may have killed Osama bin Laden, but we have yet to slay the Boogeyman.

The eight votes against the motion to proceed were Jeff Merkley, Mark Begich, Max Baucus, and John Tester, and GOP Senators Lisa Murkowski, Rand Paul, and Dean Heller. Mark Udall, who sent out a petition on reforming the Patriot Act just yesterday, voted yes on the motion to proceed. So did Senate Judiciary Committee chair Patrick Leahy, who consistently has sought reforms, however minor. However, Leahy and Rand Paul are teaming up to try and add some reforms.

The Leahy-Paul amendment introduced by the Kentucky Republican and the Vermont Democrat would have National Security Letters expire on Dec. 31, 2013. It also requires the Justice Department inspector general to audit the issuance of NSL letters and expands public reporting on the use of such letters under the Foreign Intelligence Surveillance Act.

“We were so frightened after 9/11 that we readily gave up these freedoms,” Paul said. “Not only would I let these expire, but I think we should sunset the entire PATRIOT Act.”

“You can be opposed to terrorists … but we can do it with a process that protects the innocent,” Paul said.

These really are the bare minimum reforms. But all that this minority of opponents has going for them is time. These three provisions expire on Friday, and Senators like Paul could hold up passage for some time by forcing all post-cloture time to be used. This is basically his plan, and establishment, fear-worshipping Senators like Dianne Feinstein warned him about blood on his hands. . . [cont'd.]:

Freshman Sen. Rand Paul (R-Ky.), a vocal critic of the counter-terrorism surveillance law, threatened Monday to “drag out” the process if Reid fails to hold votes on some of the nine amendments Paul introduced or co-sponsored on Monday. Paul, a libertarian-minded tea-party senator, noted that Reid had promised earlier this year to set aside a week’s worth of debate on the bill and allow votes on amendments.

“We’re not going to get the week, but we’re working on still trying to get a discussion and amendments to the Patriot Act. …” Paul told reporters just off the Senate floor. “We’ll just have to wait and see.” [...]

Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Select Committee on Intelligence, said “it remains to be seen” how Senate leaders will handle Paul’s amendments. But she warned against any political maneuvering that would slow down or derail the bill, which grants a four-year extension to key Patriot Act provisions.

“I think it would be a huge mistake,” Feinstein told reporters. If somebody wants to take on their shoulders not having provisions in place which are necessary to protect the United States at this time, that’s a big, big weight to bear.”

As Glenn notes, that’s truly an ugly response, the kind of establishment bullying we’ve seen for the last decade on measures of “national security.” It’s come from both parties, and anyone who dares not get with the program gets accused of helping The Terrorists.

At best, Paul and Leahy could drag out debate until Friday, the day that these provisions expire. Clearly they don’t have the votes to do much else. But that does start to run out the clock on passage. So we’ll see if they get their votes.

Thomas Drake, the NSA whistleblower, was on 60 Minutes Sunday evening. I’ll have more to say about his appearance and case going forward, but I just wanted to highlight a critical detail revealed by 60 Minutes: the relative cost of Trailblazer–the SAIC implemented program Michael Hayden championed–and ThinThread–the program Drake and others claim was more effective and had privacy protections.

One of them was Lieutenant General Michael Hayden, the head of the agency: he wanted to transform the agency and launched a massive modernization program, code named: “Trailblazer.” It was supposed to do what Thin Thread did, and more.

Trailblazer would be the NSA’s biggest project. Hayden’s philosophy was to let private industry do the job. Enormous deals were signed with defense contractors. [Bill] Binney’s Thin Thread program cost $3 million; Trailblazer would run more than $1 billion and take years to develop.

“Do you have any idea why General Hayden decided to go with Trailblazer as opposed to Thin Thread, which already existed?” Pelley asked.

“I believe he was convinced by others that going with a large-scale, industrial strength solution was the approach that NSA needed to take. You can’t really understand why they would make that kind of a decision without understanding the culture of NSA,” Drake said.

Asked to elaborate, Drake said, “Careers are built on projects and programs. The bigger, the better their career.” [my emphasis]

So Drake was complaining about a program that cost 300 times as much as the one he championed (ultimately, Trailblazer cost $1.2 billion, so actually 400 times as much). It’s not an apples-to-apples comparison. Trailblazer, according to a government filing, worked across more platforms. ThinThread, according to a Siobhan Gorman story, had additional functionality, including privacy protections.

But still, Drake complained about a program that did what ThinThread did–at 300 to 400 times the cost.

As one of the other NSA employees who whistleblew about Trailblazer, J. Kirk Wiebe, explains,

“How does a man see 9/11 happened, know that some part of it is due to corruption and mismanagement and sleep at night. How does a man do that? He obviously couldn’t,” Wiebe told Pelley.

Yet the government wants to put Drake in jail for 35 years because he tried to make sure incompetence that led to 9/11 doesn’t continue.

Still from the film, "Better This World"

Well, now it seems that Texas Gov. Rick Perry has been attacked by one coyote and three “anarchists.” Quite the inspiring credentials for a presidential run, I’d say.

The Texas Department of Public Safety on Thursday linked the June, 2008 burning of the Texas Governor’s Mansion to an Austin “anarchist group” whose members included two young men convicted of making Molotov cocktails during the National Republican Convention in Minneapolis later that same year.

Maybe not-so-coincidentally, the DPS’s revelation comes a little less than a month before the March 12, South by Southwest Film Festival premiere of Better This World, a powerful new documentary about the two troubled Austin activists and the FBI informant who entrapped them.

Before going on, I want to make it clear that I condemn political violence of any sort, whether or not it has been encouraged by a government’s entrapping agents provocateurs. I am as repelled by ideologues on the left as I am by those on the right. You encounter them often in politics. They are not even fun to sit next to, much less work with. Closed minds make bad decisions and often discredit heroic efforts by the open-minded who happen to share some policy goals.

Discrediting, of course, is just what governments have done to anti-authoritarian movements throughout history, especially over the last 100-150 years or so. As Alex Butterworth details in his book, The World That Never Was: A True Story of Dreamers, Schemers, Anarchists, and Secret Agents, much of the violence pinned on “anarchists” was actually staged by government infiltrators.

As I noted here last week in “One Moment in the World’s Salvation,” I also regret the intentional deformation of the term anarchism, which was used by Russian Prince Peter Kropotkin, Leo Tolstoy, American philosopher William James and others to refer to a non-violent philosophy that placed the individual and community above hierarchy and authoritarian control. Today, anarchist means a violent enemy of the state. So it goes.

When I wrote the piece last week, however, I had no idea that Texas state troopers would just a few days later put anarchism back in the news. I hope they catch and convict the criminals who burned the Texas Governor’s Mansion. And I really hope an FBI informant or domestic spy didn’t put the arsonist or arsonists up to it.

When the mansion burned, it was being renovated. Gov. Perry and his family had already moved out of it and into a West Austin swankienda. It was near that home that Perry gunned down a coyote that crossed his jogging path. These days, coyotes get a rap almost as bad as anarchists. Bagging both species would make of Perry something like a domestic, great white hunter, I suppose, and embellish his presidential resume. Sarah Palin’s killing of a caribou seems pathetically wimpy by comparison.

A few points about the DPS statement. They don’t seem to be accusing either of the two men convicted of assembling firebombs in Minneapolis. The statement very carefully talks about “one of the men arrested in Minnesota.” Notice it does not say “one of the men convicted.” The Austin American-Statesman’s online headline, “Minnesota bomb plotters linked to mansion fire,” doesn’t fit the reporting.

In a follow-up story, the DPS is, once again, careful with its words, pointing to “an Austin-based anarchist group whose members were prosecuted…”

More telling, there was an FBI informer – Brandon Darby – in the midst of those the DPS connects to the Mansion fire. That’s pretty embarrassing. Darby is the informer who mentored and then fingered David McKay and Bradley Crowder, the two men convicted of making firebombs in Minnesota.

If what the DPS says is true, the FBI informer missed the burning of the Governor’s Mansion but helped entrap and bust the perps on fires that never happened. Crime prevention deserves praise, of course, but I’m just saying…

I also find it hard to believe that any members of this alleged “anarchist group” have been able to keep their secret about burning down the governor’s mansion. Clearly, the FBI has many individuals in mind for their virtual “anarchist group.” It appears that three of those fellows — McKay, Crowder and informant Darby — know nothing about it. Are we to believe that with two doing federal prison time, one actually working for the FBI and others under intense scrutiny, that none have yet spilled the beans?

What’s the point of all this? As Butterworth details in his book, the symbiotic relationship among secret police informers and their targets leads, in the end, to a great amount of stupidity on all sides. I suppose the cat-and-mouse game will be with us always.

I hope activists here and around the world will learn the lesson of Egypt. The Egyptians’ non-violent revolution is a model. People of great courage, discipline and commitment toppled a brutal regime, never taking the bait when assaulted by government police and overcoming the agents provocateurs in their midst.

Activist violence is morally deplorable and dependably ineffective. When the assembly of a me-against-the-world self-image triumphs over altruistic efforts at justice and freedom, the cause is lost. In the end, the authorities love that type because they are so easily undone.

Meanwhile, it won’t be long before Gov. Perry is on FoxNews telling viewers how he narrowly escaped an anarchist plot. The show goes on forever and the party never ends.

NOTE: While David McKay’s first trial ended in a mistrial because jurors were convinced he had been entrapped, McKay subsequently recanted the entrapment defense and pleaded guilty. Since Brandon Darby was McKay’s mentor and a government infiltrator in question, this means a court judgment found no entrapment by Darby.

photo: Scott Beale. LaughingSquid.com via Flickr

When Jason Leopold linked to a WSJ report titled, “Obama breaks bread with Silicon Valley execs,” I quipped, “otherwise known as, Obama breaks bread w/our partners in domestic surveillance.” After all, some of the companies represented — Google, Facebook, Yahoo — are among those that have been willingly sharing customer data with federal law enforcement officials.

Which is why I found this Sunlight report listing lobbying and political donations of the companies so interesting.

	Lobbying (2010)	Contributions to Obama (2008)
Apple	$1,610,000.00	$92,141.00
Google	$5,160,000.00	$803,436.00
Facebook	$351,390.00	$34,850.00
Yahoo	$2,230,000.00	$164,051.00
Cisco Systems	$2,010,000.00	$187,472.00
Twitter	$0.00	$750.00
Oracle	$4,850,000.00	$243,194.00
NetFlix	$130,000.00	$19,485.00
Stanford University	$370,000.00	$448,720.00
Genentech	$4,922,368.00	$97,761.00
Westly Group	$0.00	$0.00

Just one of the companies represented at the meeting, after all, has recently challenged the government’s order in its pursuit of WikiLeaks to turn over years of data on its users: Twitter. And the difference between Twitter’s giving and the others’ is stark.

Does Twitter have the independence to challenge the government WikiLeaks order because it hasn’t asked or owed anyone anything, politically?

Mind you, there’s probably an interim relationship in play here, as well. Those companies that invest a lot in politics also have issues — often regulatory, but sometimes even their own legal exposure — that they believe warrant big political investments. Which in turn gives the government some issue with which to bargain on.

Maybe this is all a coinkydink. And maybe having broken bread with Obama, Twitter will cave on further government orders.

But I do wonder whether there’s a correlation between those telecommunication companies that try to buy political favors and those that offer federal law enforcement favors in return.

First aid anti-microbial agent or terrorist's bomb-making component? (photo: jypsygen via Flickr)

A year and a half ago, I warned that if you bought certain beauty supplies — hydrogen peroxide and acetone — you might be a terrorism suspect.

I’m going to make a wildarsed guess and suggest that the Federal Government is doing a nationwide search to find out everyone who is buying large amounts of certain kinds of beauty products. And those people are likely now under investigation as potential terrorism suspects.

Shortly thereafter, John Kyl basically confirmed that the government had been tracking certain people buying hydrogen peroxide.

Yesterday, FBI Director Robert Mueller did so in even more explicit terms.

Federal Bureau of Investigation Director Robert Mueller appeared to indicate for the first time Wednesday that his agency uses a provision of the PATRIOT Act to obtain information about purchases of hydrogren peroxide–a common household chemical hair bleach and antiseptic that can also be turned into an explosive.

The comment in passing by Mueller during a Senate Intelligence Committee hearing was noteworthy because critics have suggested that the FBI is using a provision in the PATRIOT Act to conduct broad surveillance of sales of lawful products such as hydrogen peroxide and acetone.

“It’s been used over 380 times since 2001,” Mueller said of the so-called business records provision, also known as Section 215. “It provides us the ability to get records other than telephone toll records, which we can get through another provision of the statutes. It allows us to get records such as Fedex or UPS records….or records relating to the purchase of hydrogen peroxide, or license records—records that we would get automatically with a grand jury subpoena on the criminal side, the [Section] 215 process allows us to get on the national security side.” (Emphasis original)

Emptywheel: where you read today about the civil liberties infringements your government will confirm years from now.

What Mueller didn’t confirm, but what we can pretty much conclude at this point, is that they’ve used the 215 provision to investigate as terrorists perfectly innocent (and possibly Muslim) purchasers of beauty supply. [cont'd.]

Recall how I first figured out the government was using Section 215 to track beauty supplies. After DiFi blabbed that they had used Section 215 in the Najibullah Zazi case, I examined the detention motion on Zazi to see what kind of evidence they used to justify refusing him bail. It included this:

Evidence that “individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora;” these purchases include:

• Person one: a one-gallon container of a product containing 20% hydrogen peroxide and an 8-oz bottle of acetone
• Person two: an acetone product
• Person three: 32-oz bottles of Ion Sensitive Scalp Developer three different times

The federal government argued, in part, that Zazi had to be denied bail because three people “associated with him” bought beauty supplies “in and around Aurora.”

Last February, Zazi accepted a plea agreement and has been cooperating with investigators; the government has twice delayed his sentencing, suggesting he’s still fully cooperating. Since that time, the only people arrested for participating in the actual plot — as opposed to obstructing justice by trying to hide the evidence of Zazi’s bomb-making, with which both Zazi’s father and uncle were charged — are in NY or Pakistan.

That is, it appears that Zazi had no accomplices “in and around Aurora.”

That’s particularly interesting given that Zazi is reported to have had few close ties in the Denver area. He only moved there in January 2009, 8 months before his arrest. And both his employer and the other worshipers at his mosque describe him as keeping to himself.

Unlike most drivers at ABC, who drove eight- or nine-hour shifts, Zazi routinely worked 16-to-18-hour days, often putting in as many as 80 hours a week ferrying passengers to and from DIA. “He was a regular kind of guy, but he worked hard and he wanted money,” says Hicham Semmaml, a Moroccan-born ABC driver. “I would have never suspected any of this.”

[snip]

“He kept to himself pretty much, and he never gave any outward signs of being connected with anybody,” Gross said.

[snip]

Zazi would turn up for afternoon prayers each Friday — Islam’s holy day — parking the ABC van in the parking lot outside the sprawling brick complex with its black dome and narrow minaret. Other regular worshippers agreed that he never spoke to anyone and usually rushed off immediately once the service ended.

All the currently available evidence suggests that these three Zazi “associates” buying beauty supplies turned out to be completely innocent. That would mean that one of the reasons the government said Zazi should be held without bail (there were plenty of others) basically amounts to innocent people with some attenuated tie to Zazi buying beauty supplies.

But consider what their beauty supply purchase has exposed them to — particularly if the association involved amounts to membership in the same mosque as him. Their purchase of beauty supplies undoubtedly made them a target for further investigation, presumably FBI agents asking questions of their neighbors and employers, probably the use of other PATRIOT provisions to track their calls and emails, and possibly even a wiretap.

So these three people, because they worshiped at the same mosque as Zazi or drove an airport van but presumably in the absence of any evidence of actual friendship with him had their lives unpacked by our government because they bought a couple bottles of beauty supplies.

photo: ScruffyDan and Breanne via Flickr

Maris Taylor has an important update on the OLC [Office of Legal Counsel]  exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context:

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, than this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

photo: What What via Flickr

The way I remember it, all those years ago, when the Bush Administration didn’t get its way on a matter of national security, they would instantly talk about the potential harm to the citizenry and how Congress must give him whatever he wanted to keep Americans safe. The Obama Administration may not be as heavy-handed in their approach, but basically they have the same message:

The director of the National Counterterrorism Center on Wednesday said it would be “extremely problematic” if provisions in the Patriot Act were allowed to expire later this month.

“The Patriot Act remains a very important tool, especially with respect to homegrown extremists,” Michael Leiter said during testimony before the House Homeland Security Committee.

“From my perspective to have the Patriot Act expire on February 28 would be extremely problematic. It would reduce our ability to detect terrorists,” Leiter said.

Leiter went on to say that the executive branch and the FISA courts do oversight on all these provisions, so there’s adequate self-policing going on and don’t you worry your little head about it.

In a sense, I’m at least happy that there was a hearing where the question of whether or not to extend these parts of the Patriot Act came up. Granted, the hearing was scheduled the day after the vote, but at this point I’ll take whatever debate I can get.

But the pattern is so familiar. Congress, in this case by the slimmest of margins, actually wants to know what’s going on when they authorize copious amounts of warrantless spying and give the FBI massive amounts of power to monitor the American people. And the executive branch, be it Republican or Democratic, reacts the same way, telling Congress they must have these powers or the terrorists win. You love your children, don’t you? Wouldn’t you want to know they’ll be safe when you tuck them in at night?

It was naive of anyone to think that any executive branch would willingly give up their own power. Congress, thanks to Republican doddering, made the effort to put the slightest of brakes on that power temporarily. But they were promptly told that they endangered America, so that will be that.