A President is afforded some leeway to interpret Congressional laws which must be executed by the Executive Branch. Under our system, if the executive branch oversteps its bounds when it implements a program under its reasonable interpretation of the law, then there is an interim period between implementation of the program and eventual redress by the courts or Congress in which citizens’ rights are violated. The violation of our rights during this interim period would not usually be considered as any kind of repeal or amendment of the law because redress will occur in the usual course of our process to ensure that the existing laws are honored. Therefore, Bush’s interpretation and implementation of programs is just business as usual in our democracy, or so the White House often says.

If this were anyone other than the worst President in our history, then this meme might have some traction. The problem is that Bush has injected steroids into this power so that he may unilaterally change laws. It is not business as usual when the President’s interpretation of laws is based consistently on legal analysis that is twisted upside down and contrary to the majority view of courts, experts and scholars on the most basic and simple issues. It is not business as usual when the President abuses his powers to prevent the courts and Congress from providing the remedies that our system envisions to stop the violation of our rights. It is not business as usual when the President demands that the laws be changed to adopt or legalize his illegal programs retroactively. And, it is not business as usual when the President demands that these new laws also provide retroactive immunity to him and executive branch officials.

It is one thing if a President obtains reasonable legal analysis of how to interpret laws which the Executive Branch must implement, and then the process of review by the courts or Congress can take place to redress any violations which occur during the period between implementation and redress. However, if it is the intent and plan of the President from the beginning to say the hell with the laws, implement a program that violates these laws, and then ultimately plan to change the laws to legalize his programs and provide immunity, then there is no redress for violation of our rights. That interim period between implementation and redress then becomes a period when the laws were repealed or amended de facto by the President.

We have seen this with Bush’s NSA spying program on Americans. Congress enacted FISA in 1978 to protect us by imposing a warrant requirement before government surveillance. The law was straightforward and clear that government surveillance required a warrant, but Bush defended his actions with a convoluted theory of unitary executive powers to change the law. Bush then used his usual secrecy cloaks of national security and classified information to prevent judicial redress and Congressional oversight while seeking a new law to adopt his program and provide him with retroactive immunity for violating our rights. If Bush succeeds, then essentially the "law" that determined our rights for the past 5 years was not FISA, but Bush’s interpretation of FISA.

Bush is using this same game plan to repeal or amend our privacy rights.

The Privacy Act Of 1974.

Congress enacted the Privacy Act of 1974 as a response to Nixon’s abuse of our privacy rights, such as using confidential government records to intimidate political enemies. This law was designed to balance individual rights and national defense. After 9/11, Congress revisited this privacy v. national defense debate, concluding that the federal government may need to enhance or create additional powers to fight terrorism and that this shift in power to the government required a new system of checks and balances to protect our rights and liberties. Congress enacted the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) partially to authorize Bush to establish a privacy rights board to oversee the protection of our rights while our government collected and used "terrorism information" to fight the "war on terror." Given Bush’s history of expanding the definition of terrorism to include data on ordinary Americans, Congress mandated that the privacy board review laws, regulations and executive branch policies not only at the proposal or drafting stage but also at the implementation stage.

A brief overview of the Privacy Act of 1974 summarizes our existing rights which Bush now seeks to repeal or amend.

The Privacy Act created a process for the collection, maintenance, use or dissemination by the federal government of records, which are defined broadly to include "any item, collection, or grouping of information about an individual that is maintained by an agency," such as educational or financial data, and which contains identifying information, such as name, number or symbol. The law requires the federal government to inform the public when it compiles "systems of records" about individuals.

The law restricts the type of information maintained by the government. The data must be "relevant and necessary" to accomplishing an agency purpose mandated by statute or Executive Order. The government is prohibited from collecting data which describes how an individual exercises First Amendment rights unless expressly authorized by statute, the individual, or within the scope of law enforcement activity. And, if the data is to be used by the agency to make "any determination," then the records must be accurate, relevant, timely and complete "to assure fairness to the individual in the determination." This is an extremely important requirement because the type of "determinations" made by the government -- such as that a person is a terrorist or terrorist suspect (or an associate of either) -- have many serious collateral consequences.

For this reason, the law mandates that the government must provide access to records. Individuals have a right to obtain a copy of their record to review and may request amendment of records that are not "accurate, relevant, timely, or complete." The agency may refuse to amend the record, but then it must state the reasons for its refusal, the procedures for administrative review and notify us of our right to judicial review of this decision. We also have the right to file a statement of disagreement about the contents of our records, and when the government discloses our record to anyone, it must "clearly note any portion of the record which is disputed and provide the statement of disagreement." These rights are very important to prevent further deleterious and wrongful consequences of an improper record, which may then be shared with numerous federal, state and local agencies as well as the private sector.

Civil remedies are available as redress for government violations. The court may remedy violations by ordering the government, for example, to produce or amend records. If the government acted in an intentional or willful manner, then the court may order actual damages which can not be less than $1,000. Given the number of records that Bush is compiling on Americans, the damages could be significant. The government may also face criminal penalties of a maximum $5,000 fine for willfully disclosing material to any person or agency not entitled to receive it.

How Bush Quietly Changes Privacy Rights.

Bush uses a variety of methods to repeal or amend our privacy rights. The 1974 Privacy Act, IRTPA and the privacy board are intertwined together such that Bush’s interpretation of IRTPA or the privacy board’s guidelines may affect the Privacy Act. In this regard, IRTPA amended the 1974 law. One of the primary goals of IRTPA is to permit government agencies to share information, which is an amendment of the 1974 law that mandated agencies could not share records without our prior written consent or compliance with specified exemptions. The privacy board recently issued privacy guidelines to regulate the sharing of "terrorism information" amongst agencies. Therefore, while Bush was not in office to whip out a signing statement for the 1974 law, he can impose his interpretation of that law now when implementing his programs and policies.

The Bush Team claim that it is not possible for them to repeal or amend our rights under the existing laws. Why? Because the Bush administration says that the ISE privacy guidelines expressly state that the guidelines do not "override existing laws such as the Privacy Act" and could not possibly do so because the guidelines require "compliance with applicable laws." However, Bush "complies" with "applicable laws" through his prism of claimed unitary executive powers. And, Bush has reserved his unitary executive prerogatives with the issuance of another signing statement for the IRTPA.

Bush can repeal or amend privacy rights by implementing programs that violate the law. Here are just two examples.

The Homeland Security Dept. publicly admitted that a program to screen domestic air passengers against terrorism lists violated federal privacy law because it gathered passenger data from commercial brokers without notifying the passengers. This occurred 2 years after the same agency was found in another report to pull a bait and switch when its proposal stated that there would not be any data storage, yet the agency improperly stored 100 million commercial data records containing personal information on passengers. The government violated the law because of a disparity between its paper proposal and the actual implementation of the program. No doubt we may one day be informed of numerous other examples where Bush stated a program was X, but then pulled a switch to implement the program in Y manner, which constituted violation(s) of our rights.

In addition, it was recently disclosed that the government has been using an invasive data-mining system on US travelers (Automated Targeting System or ATS) which creates a risk assessment or profiling of citizens and has been secretly operating for several years. Last "November, DHS announced that the program would launch on December 4, but Homeland Security Secretary Michael Chertoff later admitted that the program had already been in operation for several years." This risk assessment is retained by the government for 40 years but citizens are not provided notice that they have been "assessed" and do not have access to the "assessment" to correct any false information or challenge irrelevant information because the data is classified. Yet, this information is then made available to federal, state, local and foreign agencies. The government has also failed to disclose the consequences of a bad "assessment." As noted by legal counsel for a privacy group which filed a lawsuit, "ATS is precisely the sort of system that Congress sought to prohibit with the Privacy Act of 1974."

Bush can repeal or amend privacy laws by his control and supervision over the privacy board, which does not have any independence from Bush.

Congress authorized the privacy board to be created within the executive branch under the "general supervision of the President." Bush then packed the 5 member board with 4 Republicans and one Democrat, Lanny Davis, and all serve at Bush’s pleasure. Unlike other executive branch entities that have some space from the President, the privacy board is "part of the White House Office within the Executive Office of the President and supported by an Executive Director and staff." In an apparent attempt to give the appearance of an independent board, it has its own website but the only item posted is the same document published at the White House web site on the privacy board’s role and functions.

The privacy board members have already indicated that the board is not transparent but secretive from the public because it is part of the White House and therefore needs to maintain confidentiality. Consequently, at its first public meeting, the privacy board refused to answer any questions from the press.

This lack of independence affects how board members perform their duties as mandated by Congress. The privacy board was created as a compromise between Congress and the White House to respond to public concerns about Bush’s tactics in the "war on terror," such as warrantless spying and secret CIA prisons. Yet, even the Democratic privacy board member maintains that it’s not their job to review the legality of Bush’s programs but to find ways to improve them. Color me silly, but how can a privacy board protect our rights if it does not assess whether Bush is violating our rights? Instead of functioning as a watchdog over our civil rights, the board "all but said they view their job as helping Americans learn to relax and lovewarrantless surveillance."

Bush may also repeal or amend privacy laws by issuing Executive Orders which mandate that federal agencies implement privacy laws in accordance with Bush’s interpretation of those laws.

In IRTPA, Congress mandated that the privacy board consider and balance privacy rights with government powers. Congress also provided a standard for the privacy board to consider when the government enhances a particular government power, which includes whether there is "adequate supervision of the use by the executive branch of the power to ensure protection of privacy and civil liberties," whether there are "adequate guidelines and oversight to properly confine the use of the power," and whether the need for the power, including the risk to national security if the government does not take actions, is balanced with the need to protect privacy and civil liberties.

Bush changed this standard by issuing an Executive Order which directed executive branch agencies – when using or disseminating information -- to give the highest priority to government collection and use of information while relegating protection of privacy interests to an afterthought:

"Section 1. Policy. To the maximum extent consistent with applicable law, agencies shall, in the design and use of information systems and in the dissemination of information among agencies:

(a) give the highest priority to (i) the detection, prevention, disruption, preemption, and mitigation of the effects of terrorist activities against the territory, people, and interests of the United States of America; (ii) the interchange of terrorism information among agencies; (iii) the interchange of terrorism information between agencies and appropriate authorities of State, local, and tribal governments, and between agencies and appropriate private sector entities; and (iv) the protection of the ability of agencies to acquire additional such information; and

(b) protect the freedom, information privacy, and other legal rights of Americans in the conduct of activities implementing subsection (a)."

If the "highest priority" is accorded to our government’s ability to collect and store data on us which is then shared by other agencies, privacy rights are nothing more than a footnote buried in the paperwork of programs and policies and whipped out for a floor show when defending against claims of abuse.

Bush may repeal privacy laws by issuing guidelines that constitute a step backwards from existing rights provided by federal law:

"What struck me about the guidelines when compared with the federal privacy act was the absence of transparency, the absence of oversight and the inability for individuals to know what information about them is being collected by the federal government."

Criticism of the guidelines include the failure to provide substance and specificity, address standards for data collection, or establish a redress process for people wrongly or erroneously targeted in counterterrorism programs.

And, Bush can repeal privacy laws by removing data bank or information sharing facilities from the federal sector and relocating to the state sector which is not subject to the privacy board’s oversight. For example, there is a new plan to "use state police-run intelligence fusion centers as the hubs for a national network of officials from different agencies and levels of government sharing information about terrorism."

Given that civil rights groups, anti-war groups and environmental groups were included in the Pentagon’s terrorist threat database, all should be concerned about Bush maintaining control over the privacy board that is supposed to protect our rights. The potential for abuse is enhanced by the fact that this information is shared not just with state and local governments, but also the private sector.

At a minimum, Congress needs new legislation to provide the board with subpoena powers, remove it from the executive branch so that there is institutional independence and provide specific, express mandates for issues, processes and powers of the board because otherwise the gaps will be filled in by Mr. Decider. And, Congress should make it clear that Bush’s vast information sharing super highway does not trump the 1974 privacy law. Finally, an independent determination should be made whether the government is overclassifying documents improperly to avoid complying with Privacy Act requirements, such as notice, disclosure and amendment.







UPDATE

Just found this article posted today about a Democratic response to some of the issues raised in this diary:

Senate Democrats want to investigate Bush’s data mining programs, but not ban the practice. A 2004 government report shows 52 federal agencies are operating at least 199 different data mining programs. Feingold, Leahy and Akaka plan to introduce a legislative proposal called the Federal Agency Data Mining Reporting Act. Nearly identical proposals died without a floor vote in 2003 and 2005.

Sen. Leahy is pushing for renewed oversight due to press reports about "toubling data-mining regimes."

"Perhaps most recently, the Washington Post reported that through a system known as OneDOJ, the Department of Justice has amassed more than a million case records, including incident reports and interrogation summaries reports involving people who have not been formally charged or convicted."

Last night, the House voted 299-128 to approve "heightened independence" for the privacy board. This proposal would remove the privacy board from the president’s office, grant it subpoena power, require members be confirmed by Senate and require periodic reports on its findings.

However, this proposal is embedded in a 277-page legislative package and may not pass Senate.