Power Begets Power

Marcy Wheeler has the gory details of today's markup for the renewal of the Patriot Act. Basically, the Obama Administration and friendly Democrats in Congress - mainly DiFi and Pat Leahy - have used the Mohammed Zazi investigation to reauthorize provisions of the Patriot Act, some of which have never been used, some of which represent deep intrusions into our civil liberties.

So the Obama administration has its first allegedly big Terrorism case, and they can hardly contain themselves as they exploit it to justify a continuation of the very Patriot Act and FISA powers which Democrats (and, in the case of FISA, Obama himself) long claimed to oppose. Indeed, key Obama ally Dianne Feinstein has worked diligently in the Senate not just to block Patriot Act reforms, but to make the law even worse, and has repeatedly cited the Zazi case to justify that.

Absolutely none of the methods used in the Zazi investigation would have commenced without Zazi being tied directly to Al Qaeda. But Feinstein and the White House doesn't want to have this burden of proof. They want the ability to engage in fishing expeditions, to use roving wiretaps or "sneak and peek" searches or the use of business records without having to prove that the subject is suspected of terrorist activity. It's pretty clear that this is leading toward tracking the records of anyone who bought large quantities of hydrogen peroxide. So look out, women who dye their hair and like to stock up!

This has come in conjunction with major pronouncements by Administration officials about how very dangerous the Zazi case was and how it proves that law enforcement needs these tools. I rebutted that earlier - they need tools, but not OPEN-ENDED ones. It also makes a mockery of Administration boasts that they're not politicizing terror - the juxtaposition of these press events and the Patriot Act markup is pretty obvious.

But that's apparently what they're getting. Russ Feingold is upset. Only him, Dick Durbin and Arlen Specter (!) managed to vote against the final bill from the perspective of civil liberties.

Before I get into the specific provisions that concern me, I want to say how disappointed I was in the debate in the committee. Today particularly, I started to feel as if too many members of the committee from both parties are willing to accept uncritically whatever the executive branch says about even the most reasonable proposed changes in the law. Of course we should consider the perspective of the FBI and the Justice Department. Keeping Americans safe is everyone’s priority. But we also need to consider a full range of perspectives and come to our own conclusions about how best to protect the American people and preserve their freedoms. Protecting the rights of innocent people should be a part of that equation. It's not the Prosecutors’ Committee; it's the Judiciary Committee. And whether the executive branch powers are overbroad is something we have to decide. The only people we should be deferring to are the American people, as we try to protect them from terrorism without infringing on their freedoms [...]

Specifically, the bill reported out of the Committee today on an 11-8 vote (five Republicans and only three Democrats voted No) fell short in a few key areas. Perhaps the most important was the failure to include the reasonable 3-part standard for issuing a FISA business records order under Section 215 of the PATRIOT Act. This standard was in a bill unanimously reported by the Committee, under Republican control, in 2005, and it was in Sen. Leahy’s original bill this year. Last week, Senator Durbin offered an amendment to put the standard back in the bill. It would have ensured that these secret authorities can only be directed at individuals who have some connection to terrorism or espionage. The standard is broad and flexible, but it places some limits on this otherwise very sweeping authority. Unfortunately, Senator Durbin’s amendment failed. When it did, I hoped the Committee would instead consider at least adopting that same standard for issuing National Security Letters, which are not approved by any court, and which were seriously abused by the FBI. Today, that, too, was rejected.

The bill that passed out of committee did include some positive changes. I was pleased my amendment to reform invasive "sneak and peek" searches was included, as well as my amendment to require the executive branch to issue minimization procedures for NSLs. But these improvements did not make up for the bill’s shortcomings, and I was unable to support it on the final vote.

I only wish that Julian Sanchez could make another rebuttal video and we'd be done with this, but Fox News is hardly the problem. We've morphed pretty solidly into a surveillance state, a factor of being a state at permanent war.

I tend to side with Anonymous Liberal that at least Obama isn't asserting the divine right to break the law just by dint of being the unitary executive. That theory is on the dustbin of history, I hope. But if he's gathering the same powers, that's a distinction without a difference.

The Beauty Product Hunt

Marcy Wheeler notes some disturbing language in the reauthorization of the Patriot Act put in by DiFi:

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 [...]

First, at the start of the hearing, DiFi claimed that the investigation of Najibullah Zazi is the largest terrorism investigation since 9/11. Whether that's hyperbole or not, she's claiming that the FBI is doing more in the wake of the Zazi arrest than it did after all those false scares stemming from Bush's illegal wiretap program, all those false scares arising out of torturing Abu Zubaydah, and all the scares hyped up around election time. She's claiming this thing is huge.

Second, DiFi and Pat Leahy went through Leahy's proposed renewal to the PATRIOT Act and made some changes--to make sure that current investigations are not hampered by any changes proposed. Significantly, she appears to have taken out this language (I haven't been able to get a hold of the substitute amendment yet) which would have required investigators to have some connection between a person and a suspected terrorist before they could collect "tangible information" on them [...] So if this investigation is as big as DiFi says it is, and if it does rely on Section 215 as currently written...

Then all they would have to do is assert that anyone buying this particular cocktail of chemicals (or products containing those chemicals) could be presumptively related to activities of a foreign power. That is, if you buy these chemicals it may be safe to assume (or the FBI might be claiming it is safe to assume) you're doing so to build an al Qaeda-related bomb.

These are the kind of fishing expeditions put together by panicked lawmakers that make people feel their civil liberties are under attack by their government. The system appeared to work in the Zazi case, but to expand that out and make anyone who buys hair care products a potential terror suspect seems completely excessive. And these kind of broad nets to capture individuals have proven ineffective, because the mass of information being searched inevitably makes it harder to find the good stuff.

It's pure paranoia, reflected in legislation. Not good.

Doesn't Look Like FEAR Unit

During the Bush years we had a lot of loud law enforcement officials making loud statements about breaking up "terror cells" that didn't seem to be very important and fell apart upon the slightest consideration. So far in the Obama Administration we have the opposite - very quiet officials making almost no statements about what appear to be extremely serious threats.

Since the terrorist attacks of Sept. 11, 2001, senior government officials have announced dozens of terrorism cases that on closer examination seemed to diminish as legitimate threats. The accumulating evidence against a Denver airport shuttle driver suggests he may be different, with some investigators calling his case the most serious in years.

Documents filed in Brooklyn against the driver, Najibullah Zazi, contend he bought chemicals needed to build a bomb — hydrogen peroxide, acetone and hydrochloric acid — and in doing so, Mr. Zazi took a critical step made by few other terrorism suspects.

If government allegations are to be believed, Mr. Zazi, a legal immigrant from Afghanistan, had carefully prepared for a terrorist attack. He attended a Qaeda training camp in Pakistan, received training in explosives and stored in his laptop computer nine pages of instructions for making bombs from the same kind of chemicals he had bought.

While many important facts remain unknown, those allegations alone would distinguish Mr. Zazi from nearly all the other defendants in United States terrorism cases in recent years.

The FBI claims to have multiple instances of Zazi buying chemicals needed to build a bomb, with surveillance videos and receipts, and in pretty large quantities - this guy probably doesn't need 12 32-ounce bottles of "Ms. K Liquid 40 Volume" hair product. I don't know that hydrogen peroxide bombs equal weapons of mass destruction, but the guy seems to have had the intention of doing harm, and law enforcement figured it out and picked him up.

That's how the system should work. And they're not holding big hair-raising press conferences about it, either. People are doing their jobs.

...a very contrary view on the making of peroxide bombs, and their strength. The science of it doesn't exactly add up. Zazi may have WANTED to blow something up, but that doesn't mean buying a bunch of beauty supply products and mixing them would allow him to do so. More here.

And if there is any good news in this depressing tale it's that it is some evidence that despite the passage of years, al Qaeda has shown little if any talent for improving many of its methods. They're still reliant on idiots who comb drugstores and beauty salons for makeshift ingredients after a beggar's trip/trawl around the Internet.