I wanted to pull together the discussion in Thursday’s PATRIOT Act Hearing regarding the use of authorities within it–particularly Section 215–in existing investigations. DiFi initiates this discussion by referring to the "biggest investigation we’ve had since 9/11" (note, contrary to my earlier post, this reference is only implicitly related to the Zazi arrest.
DiFi (47:00): My concern was that nothing we do here interfere adversely with an investigation that’s going ongoing. I happen to believe that the biggest investigation we’ve had since 9/11 is currently ongoing and do not want to do anything to disturb it. Second, I believe that finally, the intelligence in the transformation or transfiguration of the FBI is now taking hold and that we are developing an intelligence mechanism within the country that is now able to ferret out some of these proposed attacks before they might happen. And I think the arrest of Mr. Zazi is demonstration of that. It is not ended and the investigation continues on. I also believe that we continue to face the very real threat of international terrorism. There are people who would hurt us grievously if they have an opportunity to do so, so again, I think it’s vital that we not take any action, especially at this time that would hinder the government’s ability to detect, investigate, and prosecute those who are intent on killing innocent Americans.
Note, too, DiFi’s reference to the "transfiguration" of FBI finally in place–is she suggesting that for the first time the FBI has used Total Information Awareness to support terrorist busts?
Later, during the discussion of Durbin’s attempt to limit the use of 215 to those with some discernible tie to a terrorist suspect, DiFi claims that such changes would end several investigations.
DiFi (101:31): Secondly, the FBI does not support this amendment. And thirdly, in putting forward this higher standard, it would end several classified and critical investigations. This was one of the amendments that I submitted to you and you were gracious enough to accept it. Senator Sessions is correct. These are authorized investigations and it’s a use of the National Security Letter in an authorized investigation. So, as I said, a standard for me is that this not interfere in existing investigations, and in fact it would.
Understand the implications of that comment. If DiFi is right (Feingold doesn’t buy it), it means there are "several" counterterrorism investigations going on that rely on collecting business records and/or tangible things on people who have no discernible tie to terrorism. They may already have that giant database of people who have recently purchase nail polish remover and other acetone or hydrogen peroxide products.
Now, if it were just DiFi, I’d assume this is a bunch of fear-mongering. But Whitehouse endorses Feinstein’s argument (though Feingold immediately rebuts both their claims).
Whitehouse (107:36): I just want to associate myself with the remarks of Chairman Feinstein, and to say that as my colleagues have a chance to review the classified materials that support her concern that this amendment would interfere with ongoing programs and also find an explanation as to why an earlier vote on a related subject may have been unanimous that no longer would make sense.
Feingold: On that point, I’m aware of the classified information Senator Feinstein and Senator Whitehouse are discussing and I strongly disagree that this three-part standard would harm national security, would be unworkable or cause the consequences that they’ve indicated.
I’m going to guess that what happened after Congress’ legalization of Bush’s illegal data mining program last year, Democrats (presumably led by Deputy National Security Advisor John Brennan) have become fond of the Total Information Awareness program they rejected when Bush advocated it. The two major differences are the Democrats are establishing this program under the FBI–in spite of FBI’s known abuses of such authorities. And unlike Bush, Democrats are keeping this massive data mining program totally secret from the citizens whose information it uses.