It all happened behind closed doors, like government mischief typically does. The Bush administration and Republican leaders in Congress attempted to sneak through a provision in the intelligence authorization bill pending before Congress that would give the Central Intelligence Agency and the military the ability to investigate Americans.
Word of the pending amendment was brought to light last week through a leak to a public interest organization. (Thank you, whoever you are.) The amendment would allow the CIA and Pentagon to issue administrative subpoenas or national security letters to order businesses such as telephone and credit card companies and financial institutions to turn over their records on customers - all without court approval.
Up until passage of the USA Patriot Act in the wake of the Sept. 11 attacks, the FBI could use national security letters under highly circumscribed conditions: to obtain information for counterterrorism or counterespionage investigations only when there was reason to believe the person whose records were sought was a foreign agent or terrorist. But the Patriot Act wiped away those specificity and suspicion requirements. Now the FBI can demand whole databases of records on every customer without any individual suspicion as long as it is in the context of an authorized antiterrorism or intelligence probe. That means all our credit card data, Internet logs and other records are there for the taking upon the signature of the attorney general or his designee.
According to published reports of a private Senate Intelligence Committee meeting on May 1, when Democrats were alerted to the measure expanding this authority to the CIA and the military they objected and it was pulled from the bill.
Though the CIA now says it is no longer pursuing the power, the New York Times reported that Republican Sen. Pat Roberts of Kansas, chairman of the Senate Intelligence Committee, has indicated he doesn't intend to let the matter drop.
Giving law enforcement the ability to conduct a search of personal records without judicial oversight is problematic enough in the hands of the FBI. But the notion that it should be offered to two institutions that do not generally operate within constitutional constraints is so patently ignorant of the checks built into our system of limited government that it is hard to believe the proposal wasn't just a bad joke.
As flagrantly irresponsible as Bush and his inner circle have been relative to the separation of powers, they have to know it is sacrosanct to American liberty to keep both the CIA and the military from intelligence gathering on our soil. As Kate Martin, director of the Center for National Security Studies, says, "the whole point of the CIA is to operate outside the law." You remember, don't you? Assassination attempts, supporting military coups to protect overseas business interests and markets, a network of spies with no warrants required.
When the CIA was created in 1947 it was purposely given a wide berth to operate overseas, but as a safety valve for American freedom it was prohibited from engaging in internal security or law enforcement functions. Protections such as barring the CIA from exercising subpoena power were put in place in part because Harry S. Truman was concerned about creating another Gestapo.
Similarly, constraints on the military were established to keep it from becoming a tool of repression for the federal government. The armed forces have been explicitly prohibited from engaging in law enforcement since 1878 under the Reconstruction-era Posse Comitatus Act. Former Georgia congressman Bob Barr, a Republican and persistent opponent of mingling the military with police work, puts the reason bluntly: "When we send the Marines overseas we don't have them carry a copy of the Miranda rights."
The military seems to have absorbed this vital distinction. Ken McClellan, a Defense Department spokesman, said all domestic intelligence gathering is referred to the Justice Department. And as to giving the military access to national security letters, McClellan said as far as he knows "no one from here drafted that language."
It seems the desire for this additional authority came from the CIA and the administration. If so, it is an astounding admission that the CIA and the FBI are still not cooperating in a way that was demanded after Sept. 11.
Jim Dempsey, executive director of the Center for Democracy and Technology, notes that the CIA claims it needs this power because the FBI isn't acting quickly enough to get it information or isn't sharing information. "And yet that was one of the fundamental failings identified that contributed to 9/11, and one of the fundamental reforms was breaking down the wall (between the agencies.)"
Remarkably, says Dempsey, the response is not to fix the problem but to codify it. Giving the CIA the capacity to get its own information will virtually ensure that the turf-protective culture within each intelligence agency will be perpetuated - a response that clearly makes us less safe.
There is hope within the civil liberties community that we've seen the last of this untenable idea in the near term. But who knows what the other side is capable of? Our leaders almost unleashed the CIA and military on Americans during a closed-door meeting with no public debate. Thank goodness for the watchdogs and the brave members of Congress who forced a retreat. Where would we be without them?