Barack Obama, who at one point was looking at least a little better than his predecessor on the issue of warrantless domestic surveillance, may turn out to be just as bad. During his campaign he criticized the Bush administration for flouting the Foreign Intelligence Surveillance Act (FISA) by monitoring communications involving people in the U.S. without a court order. But then he went along with amendments to FISA that legalized such surveillance, even giving in on the issue of retroactive immunity for the telecommunications companies that facilitated it. Now The New York Times reports that the National Security Agency has been abusing its new statutory powers, collecting purely domestic communications along with the international phone calls and email messages covered by the FISA amendments:

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in "overcollection" of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

Whoops. During a periodic review, the Justice Department says, it "detected issues that raised concerns" and "took comprehensive steps to correct the situation and bring the program into compliance." The NSA says "intelligence operations, including programs for collection and analysis, are in strict accordance with U.S. laws and regulations." Except when they're not, I guess. The Office of the Director of National Intelligence adds that "when inadvertent mistakes are made, we take it very seriously and work immediately to correct them."

So the overcollection was not just a mistake but an inadvertent mistake, and everything has been fixed now. Or maybe not. According to the Times, "Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans' privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them." I suppose an Obama enthusiast would say this episode shows the executive branch can be trusted to police itself, as long as the right people are in charge. But it also highlights the extent to which the new surveillance rules (the constitutionality of which has not been settled) require such trust.

Meanwhile, the Obama administration is trying to quash an Electronic Frontier Foundation (EFF) lawsuit aimed at holding Bush administration officials responsible for warrantless surveillance conducted prior to the FISA amendments, surveillance that Obama himself has said was illegal. It argues that allowing the lawsuit to proceed would harm national security—a claim frequently made by the Bush administration, which Obama has criticized as excessively secretive. Obama's Justice Department has gone even further than the Bush administration, arguing that the PATRIOT Act immunizes government officials who participate in illegal surveillance, except when "the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." As EFF puts it, "DOJ claims that the U.S. Government is completely immune from litigation for illegal spying [as opposed to disclosure]—that the Government can never be sued for surveillance that violates federal privacy statutes."

The DOJ dismissal motion is here. Glenn Greenwald has more here.

[Thanks to Tricky Vic and John Kluge for the links.]