The Bush administration's attempt to change laws governing wiretapping by US spies was prompted by a defeat in the FISA secret star-chamber court, it has emerged.
Newsweek reporters Michael Isikoff and Mark Hosenball, quoting an unnamed legal source "who has been briefed on the order", revealed yesterday that a FISA(Foreign Intelligence Surveillance Act) judge has refused to renew a warrant for at least part of the National Security Agency (NSA) mass surveillance programme.
Originally, in the aftermath of 9/11, the President's men claimed that the executive branch needed no judicial or legislative approval for its actions.
Even the compliant dial-a-judges of the star-chamber weren't consulted, and no provision for mass domestic surveillance was requested in the already draconian post-9/11 Patriot Act. Since the matter became public knowledge, however, parts of the NSA campaign have been placed under FISA review: and this has led to some activities being blocked.
Hints of the spooks' clash with the star-chamber beaks emerged this week in a Fox News interview with Congressional Republican leader John Boehner.
"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told the Fox anchor.
Now there's confirmation that it was, in fact, an FISA judge who issued that ruling, and that it was this judicial decision which had led the Bush administration to push for changes in the law.
Bush and the NSA contend they only want to spy on people outside the US; but in order to do so they want to tap communications in America. It is true that a lot of foreign phone calls, emails, IMs, and whatever are routed via the States.
Not many Americans would have a problem with their spies listening in on foreigners - that's what spies are supposed to do. But there is at least one obvious grey area, that of communications between people in America and those overseas - which are widely thought to have been subject to NSA mass surveillance in recent years.
In many cases, then, ordinary Americans are being spied on by their government - even if only to the extent of having their details shunted into big databases for mining. That's not what people pay their taxes for.
But the spectre of another 9/11 is a powerful political force, and the spook community has effectively said to Capitol Hill that if they aren't given free rein to eavesdrop they aren't taking the blame for the next atrocity. Even many Democrats in Washington, despite their dislike of the Bush administration - and of the increasingly hardline American internal-security climate - have yielded to this, and there is apparently a good chance of yet-greater federal spookery powers being approved soon, before the summer recess.
Reportedly, the main question to be settled is that of oversight, with the White House proposing that the Attorney General exercise control over the spies. However, the Democrats don't trust the current AG, Alberto Gonzales, and this is said to be a sticking point in negotiations.
Almost regardless of all this, a further continental-US bombing, hijacking, or other outrage is probably inevitable at some point. Even if the tiny jihadi minority among Muslims can somehow be suppressed, or anyway flagged up by supercomputer whenever they try anything, another homegrown-in-the-US-of-A Timothy McVeigh is bound to come along sooner or later.
Based on the measures which have come in since 9/11, and those now in the works, it seems safe to say that a sufficently murderous McVeigh imitator - whose attack would of itself be an insignificant pinprick on the mighty USA - could turn America into a total police state. ®