Spying on citizens
What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.In State of War, James Risen says:
But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.
The president personally and directly authorized new operations, like the NSA's domestic surveillance program, that almost certainly would never have been approved under normal circumstances and that raised serious legal or political questions.The law provides for "minimization procedures" specifically to prevent abuses of power that existed under Nixon, in which political enemies were targeted in NSA wiretaps without warrants. As it stands, the NSA is required to strop information about American citizens out of reports they send. If someone needs the identity of a person whose information was removed, the NSA will provide that data after being given some reason by the investigator. Apparently, this paper tissue thin protection was too restrictive, so the President ordered the NSA to toss out the rules.
At TPMCafe, there's some concern that this is another instance of the DHS debacle, in which Democrats, by standing up for reasonable rules on the structure and governance of the new Department were tarred as anti-national security. I think there is a danger there if people don't understand the issues.
So, to clarify, the major issue is who controls the power, not the civil liberties issue.
If there were legitimate reasons why the minimization procedures or FISA courts were too great a hindrance to defending the nation, Congress could hardly have refused a request for a more flexible system. That would have left civil libertarians trying to argue about the importance of particular safeguards.
As it stands, the argument is about how much power lies in the single person occupying one office, the Presidency. I say "some," George Bush says "all." I think most people agree with me, and not the President, and I know that the Constitution agrees with me.