So, have you heard the latest? Your business records can now be taken away by Big Brother without a warrant, thanks to that Foreign Intelligence Surveillance Act-reform bill Darth Bush — an unstoppable force of nature with 30-percent approval ratings — just slammed through the notorious wallflower also known as the Democratic Congress. Yup, all the government has to do is pretend it needs your records — or your phone calls, or even your person — for a national-security investigation of someone overseas and — Presto! — your privacy rights are shredded.

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It must be true. After all, it’s in the New York Times.

The Gray Lady’s latest chapter in FISA fear-mongering came this weekend, a purple page-one report from James Risen and Eric Lichtblau. They, of course, are the correspondents who got this whole ball rolling in late 2005 by informing al Qaeda and the rest of the world about a classified NSA program, fully disclosed to top Democrats in Congress as it ensued for over three years, which eavesdropped on suspected terrorist communications into and out of the United States.

In Times parlance, such monitoring of international enemy contacts, routinely carried out by every wartime president in history, somehow becomes “domestic spying” when George W. Bush employs it against an enemy that has managed to attack the United States — and, according to the intelligence community’s latest assessment, is working feverishly to do it again.

That is the subtext for Risen and Lichtblau’s Sunday “news” story about what is, in reality, a very tepid and temporary reform measure, grudgingly enacted before Congress skipped town for summer recess three weekends ago … and only because Democrats fear being blamed for the intelligence crisis they have created slightly more than they quake at the wailing of their nutroots. The Times now claims:

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States. These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns. For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said. [Emphasis added; paragraphs collapsed.]

That’s strange, I thought. The bill does not appear to address the acquisition of business records at all, much less work a startling change allowing government to seize them willy-nilly. Nor does it seem to have anything to do with the execution of physical searches or “trap and trace” surveillance. Nor, indeed, is there anything remotely “new” about such “powers” — business records, searches, and “trap and trace” (or pen-register) monitoring (by which government gets phone and email usage information but not the content of communications) are long-time staples of both law-enforcement and intelligence investigations. They are controlled by elaborate statutory procedures which the reform bill does not seem to alter.

Nor, moreover, does it seem plausible that, as the Times report suggests, Democrats voted for the reform bill without grasping what was in it. This was no omnibus, multi-volume budget extravaganza. We’re talkin’ 14 double-spaced pages — straightforward, easily read, and reread in nothing flat, bereft of crevices for hiding explosive provisions. Even allowing for the limited attention spans of lawmakers forced to work the weekend while tapping their feet like kids on the last day of school, you have to think we’d have heard about any seachanges while the bill was being considered.

ONLY THE TIMES
But, I figured, maybe I am just dense. True, Risen and Lichtblau don’t even try to explain how the reform bill’s language supports their business records hypothetical. But given that they are such reliably even-handed journalists, surely they’d offer an alternative view from other “experts” if there were one to be found, right? After all, the Times wouldn’t be proselytizing about a new police state on its news pages, would it? It’s just trying to give us the straight scoop: “All the news that’s fit to print,” no?

So I checked with the radical American Civil Liberties Union. Certainly, I imagined, it would elaborate on the hidden landmines the Times has found. After all, the ACLU so despises the bill that it has put out a “fact sheet” sniping that the new law should be called the “Police America Act” (it is actually called the “Protect America Act”). Yet for all its predictable bombast, nowhere does the ACLU repeat, much less explain, the Times’s spin that FISA reform has left us wholesale exposed to the snatching of our files, the scrutinizing of our phone usage, and even the violation of our persons.

It also turns out that no less a doctrinaire civil libertarian than the University of Chicago’s Geoffrey Stone has weighed in on FISA reform, as a guest blogger for the American Constitution Society. As he has throughout the NSA controversy, Professor Stone makes a number of misleading and inaccurate claims; but even he, like the ACLU, limits his complaints to the actual subject matter of the bill: telecommunications. Nothing about business records and the like.