In a memo released by The Center for Public Integrity, February 7, 2003, entitled the "Domestic Security Enhancement Act of 2003" and popularly known as "Patriot Act II," the United States Department of Justice outlined surveillance measures that have now been revealed to the public. While most of the measures mentioned received high amounts of criticism, it is highly likely they have been implemented since then. It also highly likely the measures have been taken much further than ones actually proposed in the memo.
The first example relates to the administration's "Terrorist Surveillance Program," which the memo addresses in an indirect way. The change proposed in "Section 103: Strengthening Wartime Authorities Under FISA," would have allowed the Bush administration to conduct electronic surveillance without a FISA warrant for a period of 15 days after the passage of an authorization for the use of military force or a terrorist attack upon the United States of America. This is different from the current law, which only allows warrantless surveillance for 15 days after a formal declaration of war.
We now know that the NSA conducted surveillance without warrants, and for a much longer period of time, but the memo suggests the Department of Justice believed the Authorization of Military Force passed by Congress right after September 11th
did not override this section of FISA, which is the main legal argument in defense of the NSA program. The question remains, why would the Department of Justice seek to amend FISA giving it the ability to spy for only 15 days, if it already believed it had a much greater authority?
In "Section 107: Pen Registers in FISA Investigations," the memo proposed to change the burden of proof required to use pen registers, devices that collect and store numbers dialed from a telephone, where "US Persons" are concerned. The change is interesting because it appears to be pointless in the context of the War on Terror, as terrorism investigations are already covered under the law.
We now know that not only did the NSA obtain the dialing information of terrorists suspects, but a majority of the American people. Here the memo begs another question, why would the DOJ seek to change a law about collecting phone information from a terror suspect, when the NSA had collected such information on the majority of Americans?
The memo implies such widespread activity is illegal in both cases.
How many other measures in the memo have become common practice and how much further have they been taken? Only time and further reporting will be able to answer that.
From Open Source, my new investigative project focused on mining open sources for important information.
http://originalpckelly.googlepages.com/osopensource
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