The two New York Times journalists who broke the original Bush-era NSA wiretapping story in 2005 have published fresh revelations of new abuses of the program, which include alleged access to Americans' domestic communications and an attempt to wiretap a member of Congress without a warrant. The article reports that "officials with both the House and Senate intelligence committees said they had concerns that the agency had ignored civil liberties safeguards built into last year’s wiretapping law."

Um, what safeguards?

Last July, when the Democratic-controlled congress completely caved on the issue of NSA wiretapping abuses and weakened the safeguards against abuse with a set of terrible compromises, Ars writer Timothy B. Lee wrote:

The 114-page bill was pushed through the House so quickly that there was no real time to debate its many complex provisions... The new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it.

The FISA compromise of 2008, passed by a Democratic Congress, essentially gave congressional blessing to the surveillance abuses of the Bush-era NSA, and then went a step further by greatly reducing existing safegaurds over wiretapping. The way that many (including yours truly) interpreted the move was that the Democrats were trying to shore up their national security credentials in advance of the November elections. Indeed, then-senator Barack Obama voted in favor of the compromise, and Salon's Glenn Greenwald documents in some detail how the senator's surrogates tried to spin the vote as pro-civil liberties.

In respect of these two goals—i.e., to increase the executive's ability to wiretap with impunity and to help Democrats gain control of Congress and the White House in November—the bill could be considered a smashing success. Unfortunately, it's definitionally impossible to gauge the secret program's effectiveness at its nominal goal, which is preventing terrorism.

Moving back to the revelations in the NYT article, most of them are relatively nonspecific and very carefully phrased by Lichtblau and Risen. In brief, it looks like a DOJ audit of the program uncovered "significant and systemic" abuses, in which the NSA "unintentionally" collected—but didn't necessarily examine—domestic e-mails and phone calls of Americans. Some of the alleged confusion over what's kosher to collect and what isn't arose from the difficulty of separating out the communications that travel through American's satellites and fiber optic cables into "foreign" and "domestic" traffic.

The only truly specific charge, and it's a doozy, is that the NSA considered wiretapping a member of the US Congress without authorization:

The agency believed that the congressman, whose identity could not be determined, was in contact—as part of a Congressional delegation to the Middle East in 2005 or 2006—with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said. The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the NSA, without court oversight, to spy on a member of Congress.

That the NSA would even consider wiretapping a member of Congress without a court order is so disturbing that it makes me want to run out and organize a populist protest over creeping fascism, vanishing liberties, and the shredding of the Constitution. Here's an idea: we could plan to dump 1 million phone cords in DC's Lafayette Park.

The DOJ has released a statement confirming that there were "issues" with the program, and that they're working to rectify them. And, as is the agency's custom in every single one of these instances, the NSA has denied doing anything wrong.