Mr. Mukasey emphasized that the F.B.I. would still need a “valid purpose” for an investigation, and that it could not be “simply based on somebody’s race, religion, or exercise of First Amendment rights.”

Couldn't be based "simply" on those things? Does that mean it could be based partially on those things? Apparently yes, and they've been doing it since 2002.

In 2002, John Ashcroft, then the attorney general, allowed F.B.I. agents to visit public sites like mosques or monitor Web sites in the course of national security investigations. The next year, Mr. Bush issued guidelines allowing officials to use ethnicity or race in “narrow” circumstances to detect a terrorist threat.

So some Democrats are objecting now.

The Democratic senators said the draft plan appeared to allow the F.B.I. to go even further in collecting information on Americans connected to “foreign intelligence” without any factual predicate. They also said there appeared to be few constraints on how the information would be shared with other agencies.

They should have balked in 2001 with the Patriot Act. Once you give the Government new powers, it rarely gives them back. They also should have objected when Ashcroft made his pitch for the 2002 Guidlines. And when he revised them in 2003.

A lawyer for the ACLU says the new guidelines will make it easier to use data-mining to create profiles:

“This seems to be based on the idea that the government can take a bunch of data and create a profile that can be used to identify future bad guys,” he said. “But that has not been demonstrated to be true anywhere else.”

As to why Bush is doing this now:

As the end of the Bush administration nears, the White House has been seeking to formalize in law and regulation some of the aggressive counterterrorism steps it has already taken in practice since the Sept. 11 attacks.

Mukasey says in light of the objections, he won't sign the new guidelines before September 17 when a hearing is held.