National News, Articles, and Commentary, December 29, 2005 Options

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Chiefs Demoted in Pentagon Succession Line By LOLITA C. BALDOR, Associated Press Writer
Thu Dec 29, 3:52 AM ET

Heading a military service isn't quite the position of power it used to be. In a Bush administration revision of plans for Pentagon succession in a doomsday scenario, three of Defense Secretary Donald H. Rumsfeld's most loyal advisers moved ahead of the secretaries of the Army, Navy and Air Force.

A little-noticed holiday week executive order from President Bush moved the Pentagon's intelligence chief to the No. 3 spot in the succession hierarchy behind Rumsfeld. The second spot would be the deputy secretary of defense, but that position currently is vacant. The Army secretary, which long held the No. 3 spot, was dropped to sixth.

The changes, announced last week, are the second in six months and reflect the administration's new emphasis on intelligence gathering versus combat in 21st century war fighting.

Technically, the line of succession is assigned to specific positions, rather than the current individuals holding those jobs.

But in its current incarnation, the doomsday plan moves to near the top three undersecretaries who are Rumsfeld loyalists and who previously worked for Vice President Dick Cheney when he was defense secretary.

The changes were recommended, said Pentagon spokesman Bryan Whitman, because the three undersecretaries have "a broad knowledge and perspective of overall Defense Department operations." The service leaders are more focused on training, equipping and leading a particular military service, said Whitman.

Thomas Donnelly, a defense expert with the American Enterprise Institute, said the changes make it easier for the administration to assert political control and could lead to more narrow-minded decisions.

"It continues to devalue the services as institutions," said Donnelly, saying it will centralize power and shift it away from the services, where there is generally more military expertise.

Under the new plan, Rumsfeld ally Stephen Cambone, the undersecretary for intelligence, moved up to the third spot. Former Ambassador Eric Edelman, the policy undersecretary, and Kenneth Krieg, the undersecretary for acquisition, technology and logistics, hold the fourth and fifth positions.

The first to succeed Rumsfeld remains the deputy secretary, a position currently vacant because the Senate has not confirmed Bush's nominee — current Navy Secretary Gordon England.

Senators have already approved Donald Winter to be England's replacement as Navy chief, and it is expected that Bush will eventually move England into the No. 2 Pentagon job without congressional approval through a recess appointment.

The new succession order bumps the Navy secretary to near the bottom of the line of succession — eighth behind the deputy, the three Pentagon undersecretaries and the Army and Air Force secretaries.

The Army secretary historically has been third in line, right behind the deputy secretary.

Since the Sept. 11, 2001, terrorist attacks, intelligence gathering has taken center stage. Earlier this year, Bush named former ambassador John Negroponte as the country's first director of national intelligence, charged with overseeing the government's 15 highly competitive spy agencies.

In spring 2003, Rumsfeld installed Cambone — one of his closest aides — in the new job of intelligence undersecretary.




Copyright © 2005 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.


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Audit: FEMA Woes Just One Problem at DHS
by LARA JAKES JORDAN, Associated Press Writer

Weaknesses in FEMA's response system during Hurricane Katrina were just one symptom of major management challenges at the Homeland Security Department, an internal report issued Wednesday concludes.

The report by the department's inspector general also questions Homeland Security's ability to properly oversee billions of dollars worth of contracts it awards annually.

The inspector general's findings were issued as the nearly three-year-old department struggles to revamp its programs and resources to prioritize top risks.

The Federal Emergency Management Agency, an arm of the Homeland Security Department, was singled out as a top concern by investigators who pointed to the agency's "overburdened resources and infrastructure" in dealing with the double-whammy of hurricanes Katrina and Rita.

Investigators found that several key FEMA programs — distributing aid to disaster victims, emergency response information systems, modernizing flood maps and managing contracts and grants — remain inadequate.

"Based on our work related to prior emergency response efforts, we have raised concerns regarding weaknesses" within those programs, the audit by Homeland Security Inspector General Richard L. Skinner said.

Moreover, "when one considers that FEMA's programs are largely administered through grants and contracts, the circumstances created by hurricanes Katrina and Rita provide an unprecedented opportunity for fraud, waste and abuse," the report found.

"While DHS is taking several steps to manage and control spending under Katrina, the sheer size of the response and recovery efforts will create an unprecedented need for oversight," the report said.

Katrina slammed into the Gulf Coast on Aug. 29, followed by Rita on Sept. 24.

Department officials responded to the audit with an 11-page point-by-point analysis, acknowledging and explaining shortcomings in some areas and defending actions in others.

Homeland Security spokesman Russ Knocke said Wednesday the department is working to make programs more efficient and effective. He also called changes to FEMA "one of our greatest and most urgent priorities."

"The American public will be hearing from us, in short order, about how we intend to build the capability of FEMA into a 21st century agency, focusing on the agencys core response and recovery mission," Knocke said.

As of last week, the most recent data available, Homeland Security had awarded $4.1 billion in Katrina-related contracts — mostly for construction and housing. By comparison, the department awarded nearly $10 billion in contracts on all projects last year, the audit found.

In its response, the department said it has created a procurement office to give strict oversight to the hurricane contracts process, and has brought in outside advisers to help.

The findings were part of an audit by Skinner's office, which is tasked with assessing Homeland Security's management challenges each year.

Homeland Security, the third-largest Cabinet-level federal department, has made progress since it was created in 2003 by merging 22 disparate agencies, the audit found.

However, "it still has much to do to establish a cohesive, efficient and effective organization."

Other areas of concern, as reviewed in the report, include:

_Financial reporting problems, especially at U.S. Immigration and Customs Enforcement, which failed to properly maintain its accounting records.

_Delays in creating and installing a new personnel system that replaced salaries based on workers' seniority with a merit pay system. The delays were caused, in part, by a federal lawsuit challenging the proposed regulations.

_Poor coordination between border patrol officers and immigration investigators, contributing to security vulnerabilities at borders. Earlier this year, Skinner recommended merging the two entities to improve coordination, but Homeland Security Secretary Michael Chertoff has rejected that idea.

Copyright © 2005 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.


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NSA Web Site Places 'Cookies' on Computers By ANICK JESDANUN, AP Internet Writer

The National Security Agency's Internet site has been placing files on visitors' computers that can track their Web surfing activity despite strict federal rules banning most of them.

These files, known as "cookies," disappeared after a privacy activist complained and The Associated Press made inquiries this week, and agency officials acknowledged Wednesday they had made a mistake. Nonetheless, the issue raises questions about privacy at a spy agency already on the defensive amid reports of a secretive eavesdropping program in the United States.

"Considering the surveillance power the NSA has, cookies are not exactly a major concern," said Ari Schwartz, associate director at the Center for Democracy and Technology, a privacy advocacy group in Washington, D.C. "But it does show a general lack of understanding about privacy rules when they are not even following the government's very basic rules for Web privacy."

Until Tuesday, the NSA site created two cookie files that do not expire until 2035 — likely beyond the life of any computer in use today.

Don Weber, an NSA spokesman, said in a statement Wednesday that the cookie use resulted from a recent software upgrade. Normally, the site uses temporary, permissible cookies that are automatically deleted when users close their Web browsers, he said, but the software in use shipped with persistent cookies already on.

"After being tipped to the issue, we immediately disabled the cookies," he said.

Cookies are widely used at commercial Web sites and can make Internet browsing more convenient by letting sites remember user preferences. For instance, visitors would not have to repeatedly enter passwords at sites that require them.

But privacy advocates complain that cookies can also track Web surfing, even if no personal information is actually collected.

In a 2003 memo, the White House's Office of Management and Budget prohibits federal agencies from using persistent cookies — those that aren't automatically deleted right away — unless there is a "compelling need."

A senior official must sign off on any such use, and an agency that uses them must disclose and detail their use in its privacy policy.

Peter Swire, a Clinton administration official who had drafted an earlier version of the cookie guidelines, said clear notice is a must, and `vague assertions of national security, such as exist in the NSA policy, are not sufficient."

Daniel Brandt, a privacy activist who discovered the NSA cookies, said mistakes happen, "but in any case, it's illegal. The (guideline) doesn't say anything about doing it accidentally."

The Bush administration has come under fire recently over reports it authorized NSA to secretly spy on e-mail and phone calls without court orders.

Since The New York Times disclosed the domestic spying program earlier this month, President Bush has stressed that his executive order allowing the eavesdropping was limited to people with known links to al-Qaida.

But on its Web site Friday, the Times reported that the NSA, with help from American telecommunications companies, obtained broader access to streams of domestic and international communications.

The NSA's cookie use is unrelated, and Weber said it was strictly to improve the surfing experience "and not to collect personal user data."

Richard M. Smith, a security consultant in Cambridge, Mass., questions whether persistent cookies would even be of much use to the NSA. They are great for news and other sites with repeat visitors, he said, but the NSA's site does not appear to have enough fresh content to warrant more than occasional visits.

The government first issued strict rules on cookies in 2000 after disclosures that the White House drug policy office had used the technology to track computer users viewing its online anti-drug advertising. Even a year later, a congressional study found 300 cookies still on the Web sites of 23 agencies.

In 2002, the CIA removed cookies it had inadvertently placed at one of its sites after Brandt called it to the agency's attention.



Copyright © 2005 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.


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http://writ.news.findlaw.com/hamilton/20051229.html

The Year in Review: Law and Religion in 2005,
From "Intelligent Design," to the Ten Commandments, to Supreme Court Staffing Changes, to Clergy Child Abuse Developments
By MARCI HAMILTON
hamilton02@aol.com
----
Thursday, Dec. 29, 2005

Over this past year, the intersection of law and religion (and politics) took center stage in the United States. In this column, I've provided what I think are the top ten "highlights," in no particular order.

Interestingly, one thing the list shows is that despite the proven ability of conservative Christians to set the public agenda for debate, they have not been terribly successful in ultimately altering the law to fit their world view.



Highlight Number One: The movement to introduce "intelligent design" into the public school science curriculum failed when a federal judge in Dover, Pennsylvania, ruled that it was not science, but merely a re-introduction of creationism -- and that it was, therefore, a straightforward violation of the Establishment Clause.

The opinion, by a conservative Bush appointee, is well-reasoned and sound: Among other points, it chastised the school board for its transparent move to get Christian teachings into the public school curriculum. (Meanwhile, on the political side, the pro-intelligent-design members of the relevant school board also lost their jobs in the November elections, apparently on this very topic.)

Highlight Number Two: The United States Supreme Court ruled, in McCreary County v. ACLU, that when the Ten Commandments are posted in a courthouse with an accompanying pro-Christian resolution, the posting constitutes an official endorsement of religion and is therefore unconstitutional.

Yet at the same time, in Van Orden v. Perry, the Court held that the display of a Ten Commandments monument at a state capitol - when the monument had been donated by a philanthropic group, and when there was no overt government endorsement of religion - was constitutional. Surprisingly, the swing vote was Justice Breyer, not Justice O'Connor.

Highlight Number Three: In Cutter v. Wilkinson, the Supreme Court upheld the institutionalized persons provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which subject prison regulations to strict scrutiny if there is a substantial burden on a prisoner's religious exercise. This case would have been a blockbuster in the Establishment Clause arena, because the accommodation is blind in the sense that it covers scores of regulations never even contemplated by Congress. But the decision, in the end, meant very little, because it mandated, on the basis of legislative history, that Congress intended the courts to defer to prison authorities' expertise and asserted interests. The Court's interpretation meant that RLUIPA mandated a standard of review with considerably less bite than strict scrutiny in the constitutional context, as I discussed in a prior column, and, the accommodation was de minimis.

Highlight Number Four: Judge Williams, the federal bankruptcy judge in Spokane, Washington, who is presiding over the Spokane Diocese's bankruptcy, issued a landmark opinion in which she held that the First Amendment did not permit the Diocese to determine property ownership solely according to canon law. Instead, she ruled, religious entities filing for federal bankruptcy, like all others, must have the issue of property ownership determined by neutral, generally applicable property laws. The question arose because the Diocese was attempting to reduce the size of the estate available to clergy abuse victims.

Highlight Number Five: The Supreme Court heard oral argument in the O Centro case, involving the question whether a South American-based religious group, the UDV for short, could use the Religious Freedom Restoration Act (RFRA) to avoid the federal Controlled Substances Act. The UDV wanted to follow its practice of using an illegal drug, DMT, in their religious ceremonies, without fear of prosecution. As I discussed in another column, the religious group's arguments do not seem as strong as those on the other side.

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(On the political side, Jewish and conservative Christian groups filed briefs in favor of the UDV's use of illegal drugs. Illustrating once again the knee-jerk preference for accommodation in this society, and the concomitant abandonment of the public good, which I document in my recent book, God vs. the Gavel: Religion and the Rule of Law, these groups did not ask the obvious question whether this group permits children to take the drugs during services - a factor that would seem to cut strongly in favor of enforcement of the law here. Adherents in South America, via email, informed me that children do, indeed, take the drug during services.)

Highlight Number Six: Justice Sandra Day O'Connor announced her retirement for family reasons, a move that opened the door for the President to attempt to push the Court to shift directions with respect to abortion and the Establishment Clause. Within hours of O'Connor's resignation, the Becket Fund issued a press release expressing its delight that she would be stepping down, because of her views on the Establishment Clause.

O'Connor, for whom I served as a law clerk, was the swing vote on many cases and introduced what is in my view -- and that of many other commentators -- the best modern innovation in the area, the "endorsement test," which prohibits the government from endorsing any one religious viewpoint, because endorsement excludes other citizens. This element of the doctrine takes into account the tremendous diversity among religious faiths in the United State.

But if Judge Samuel Alito, nominated to fill her position, is confirmed to the Court, he is likely to push the Court away from any meaningful separation of church and state, and toward what I would call the equality theory, which requires that religious groups are treated at least as well as other groups and in favor of government expression that supports Christianity. There is a clear choice: inclusion of all believers or exclusion, and Alito may well push the jurisprudence toward the latter. That would mean reversing some of the progress for which O'Connor deserves credit in this area.

Highlight Number Seven: Now-Chief Justice John Roberts replaced Chief Justice Rehnquist, for whom he clerked. The net result in the religion cases will likely be minimal - for Roberts's votes and positions are likely to track Rehnquist's closely.


Highlight Number Eight: In the Melanie H. case, a federal court in San Diego upheld California law 340.1, which opened a one-year window in 2003 for clergy abuse victims to sue institutions that caused their harm - for instance, dioceses that recklessly or knowingly hid the identity of a pedophile and assigned that pedophile to positions with easy access to children.

The Catholic Church had argued that the law specially targeted the Church, in violation of the Free Exercise and Establishment Clauses, because it was passed in the wake of the revelations that the Church had covered up child abuse by its priests in many cases. That argument, however, had no merit: The law is, in fact, neutral and generally applicable, and applies to any organization contributing to child abuse, from day care centers, to the Boy Scouts, to any religious organization.

Accordingly, the court rightly held that the law passed muster under the Free Exercise Clause. (Moreover, the court also held, again correctly, that the Church's actions regarding child abuse were not based in religious belief or practice and, therefore, the Religion Clauses simply did not apply.)

Highlight Number Nine: The beat went on in other major church/state cases. Cities continued to be pelted with claims under the land use provisions of the Religious Land Use and Institutionalized Persons Act, which gives special privileges to religious landowners to overcome the land use laws that govern everyone else, as I have discussed in previous columns such as this recent one. And a district court in the Ninth Circuit held that "under God" in the Pledge of Allegiance was unconstitutional in the classroom, but not at a school board meeting.

Highlight Number 10: Conservative Christian organizations successfully pressured Congress and the President to enact legislation for the parents of Terri Schiavo, so that they could continue to challenge the many decisions in the Florida state courts holding that her feeding tube could be removed, as I discuss in a previous column. Despite the politicians' willingness to cater publicly to their cause, the resulting legislation was toothless, and the court's order permitting the removal of the feeding tube was carried out.

It will remain to be seen whether a newly configured Supreme Court will alter Religion Clause jurisprudence dramatically. What is for certain, is that the culture wars over religion are far from over.

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http://today.reuters.com/news/newsarticle....ISEN.xml&rpc=23

Hurricane insurance losses $57.6 bln: Advisen
Tue Dec 27, 2005 11:09 AM ET



NEW YORK (Reuters) - Advisen Ltd. on Tuesday estimated worldwide insurance and reinsurance losses related to the three major hurricanes that hit the United States this year would amount to $57.6 billion, making the cumulative catastrophe losses the largest on record.

By predicting unreported losses from State Farm Mutual Automobile Insurance Co., the largest personal lines insurer, as well as unreported and unfiled losses elsewhere, Advisen projects pre-tax insured losses per hurricane to be $40.4 billion for Katrina, $6.4 billion for Rita, and $10.8 billion for Wilma.

The losses amount to more than twice the annual total for other U.S. natural disasters and one-and-a-half times the losses from the 2001 terrorist attacks in New York and Washington.

Several variables could prompt Advisen's estimates to increase dramatically, the company warned. Flood losses could elevate Advisen's estimates by billions of dollars if lawsuits to force insurers to cover flood damage related to Hurricane Katrina are successful.

Also, hurricane-related pollution lawsuits could add hundreds to Advisen's totals, it said.

Advisen provides analytics and market information to the commercial insurance industry.



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December 29, 2005
News Analysis
Enron Figure May Testify, but What Will He Say?
By KURT EICHENWALD
At a top-level Enron management meeting in September 2001, a red-faced Richard A. Causey, the chief accounting officer, pounded the table after hearing his colleagues label the company's accounting practices as "aggressive." According to executives in the room, Mr. Causey fumed that he considered such criticism a personal affront, adding that he would stake his career on the propriety of Enron's accounting.

Yesterday, more than four years later, Mr. Causey entered a Houston courtroom and pleaded guilty to a single count of securities fraud, admitting that the way Enron accounted for its financial performance presented a false portrait to investors for at least two years. [Page C1.]

This tale of two Richards - one steadfastly defending Enron's accounting decisions, the other admitting criminal liability in a fraud - is at the heart of the prosecution of Enron's former chief executives, Kenneth L. Lay and Jeffrey K. Skilling. And in this dichotomy lies the issues and evidence that could determine whether the two remaining defendants go free or spend much of the rest of their lives in prison.

At this point, no one, not even the lawyers involved in the case, can be sure which of the two Richards may appear on the stand - or even if a third may appear, one who admits limited criminal liability but continues to deny broader allegations. That partly explains why, even as prosecutors were heralding Mr. Causey's admission of guilt, lawyers for the remaining defendants continued to hold him close by celebrating his integrity.

"He is one of the most honest and decent men you can ever get to know," said Daniel Petrocelli, Mr. Skilling's lead lawyer. The prosecutors, Mr. Petrocelli added, "broke an innocent man."

Mr. Causey has never been a top-billed player in the Enron drama. But despite his low profile, the government and the defense always considered him someone who could play the role of a major witness once the top officers go to court. That is because Mr. Causey, as chief accounting officer, attended many of the top-level meetings where decisions were made that are at the center of the criminal case.

Moreover, unlike other former executives who are government witnesses, Mr. Causey walks into the courtroom with little excess baggage. Some of the government's star witnesses, including Andrew S. Fastow, the former chief financial officer, and Ben Glisan, the former treasurer, are weighed down by having defrauded Enron of millions of dollars for their personal gain.

Not so with Mr. Causey; there are no secret bank accounts, no hidden streams of cash flowing from company coffers into his pockets. Where Mr. Fastow was roundly detested within Enron for his sharp tongue and elbows, Mr. Causey was widely liked, often referred to as a friendly, teddy bear of a man.

Indeed, Mr. Causey seems an unlikely character type to be playing such a profound role in a major fraud case. Friends and associates describe him as a devoutly religious man who is devoted to his wife and children, with little in his life reflecting the fast-paced, reckless image now part of the Enron legacy.

Creating part of the uncertainty is the limited nature of the admissions made by Mr. Causey in an affidavit filed as a result of his plea agreement. In the document, Mr. Causey states generally that he participated with "others in Enron senior management" to defraud the investing public by misleading them about the company's true financial performance. In support of that statement, Mr. Causey cites two examples.

What is most interesting about those examples is what they are not. They do not involve some of the broader accounting allegations related to off-books entities, with esoteric names like the Raptors and LJM2, that Enron used to burnish its financial picture. They make no reference to secret handshake deals involving promises to return money provided by outsiders.

Prosecutors contend such deals allowed Enron to present loans as investments, which because of the intricacies of the accounting rules had the effect of transforming the company's financial reports.

Rather, the crimes admitted to by Mr. Causey involve one-time deals that, while significant in their effect on Enron's finances, do not lock him into the prosecution's portrait of the company's senior management as being engaged in a nearly continuous conspiracy to defraud investors during the final years of its existence.

The allegations admitted by Mr. Causey occurred in the first quarters of 2000 and 2001.

In the first instance, Mr. Causey and other executives knew that positive news was about to push up the company's stock price. To profit from that, they removed a hedge from a partnership that the company partly owned and that held Enron stock. With the hedge, if Enron's stock price went up, the value of a related investment would go down. After the hedge was removed, Enron reported the stock price increase as recurring profits.

The second allegation that Mr. Causey admitted to involved a transaction relating to the company's retail electricity business. In the first quarter of 2001, the retail business, known as Enron Energy Services, had hundreds of millions of dollars in trading losses, far exceeding the unit's expected income for the year. To deal with that, Enron shifted the division's trading books into a separate, highly profitable unit, avoiding direct reporting of the losses.

Another curious element of the deal is the fact that Mr. Causey is not obligated to cooperate with the government; rather, his sentence of seven years could be reduced to five should prosecutors determine that he has provided substantial assistance to their case.

Even though that gives him plenty of motivation to make prosecutors happy, without a cooperation agreement, Mr. Causey, who is 45, cannot be threatened with the loss of his deal if he fails to impress the government.

None of this means the government has obtained a bad deal from Mr. Causey - far from it. With his admission to the two underlying criminal acts, Mr. Causey has become a witness on charges brought against Mr. Skilling related to the same two transactions.

And while Mr. Causey's admissions do not involve any of the charges against Mr. Lay, the former chief accounting officer was a primary participant with him in at least one meeting in October 2001 that the government contends was part of an effort to deceive Enron's accountants at Arthur Andersen.

Moreover, because of his motivation to cooperate and reduce his sentence to five years, from seven, Mr. Causey could well prove to be an important prosecution witness on other transactions in which he was involved. Those dealings are reflected in charges that the company manipulated its income through the off-books partnerships, the bogus revaluation of a significant asset, the stashing away of excess profits for use in another year, and others.

His defection to the government is likely to rob Mr. Skilling and Mr. Lay of what could have been a central defense: that, in making their judgment about accounting decisions, they relied on Mr. Causey's expertise.

For months, Mr. Causey has been working with lawyers for his co-defendants, taking them through each deal and explaining his justification for every accounting decision. Should the second, or even the third, Richard appear on the witness stand, those statements are sure to be raised by the defense lawyers as they try to undermine the credibility of yet another witness against their clients.



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December 29, 2005
Enron's Top Accountant Will Help Prosecutors
By SIMON ROMERO and VIKAS BAJAJ
HOUSTON, Dec. 28 - The former chief accounting officer of Enron agreed on Wednesday to cooperate with the government in its case against the two leading executives in the scandal over the company's collapse, significantly shifting the dynamics of a trial that is scheduled to start late next month.

In exchange for a guilty plea to a single felony charge of securities fraud and for help in prosecuting Kenneth L. Lay and Jeffrey K. Skilling, both former chief executives at Enron, the accounting officer, Richard A. Causey, will face a sentence of seven years. That sentence could be reduced by as much as two years, depending on his cooperation at the trial. Mr. Causey did not specifically agree to testify, leaving open that possibility as the trial gets under way.

After Mr. Causey entered his plea, Judge Sim Lake of the Federal District Court here accepted a motion by defense lawyers to delay the start of the trial of Mr. Lay and Mr. Skilling to Jan. 30 to give the defense more time to prepare. Originally, Mr. Causey was to have gone on trial with them on Jan. 17. Mr. Causey also agreed to pay a $1.25 million fine out of financial assets that were frozen since his legal troubles began.

"Guilty, your honor," Mr. Causey said in court, occasionally looking down at the floor, as he softly responded to Judge Lake's questions as to whether he deceived investors. Mr. Causey, 45, declined to comment further on his plea as he exited the courtroom accompanied by lawyers and his wife, who was sobbing.

"All the while, and for the remainder of his life, he will regret the damage and the hurt that so many people suffered as a result of this tragedy," Reid H. Weingarten, Mr. Causey's lawyer, said outside the courthouse.

The defense will seek to limit the damage that Mr. Causey could inflict as a witness for the prosecution by arguing that portions of his testimony are derived from the knowledge he obtained as a joint defendant and thus should not be allowed. "He was a man we worked side-by-side, shoulder-by-shoulder with for months," said Michael Ramsey, a lawyer for Mr. Lay.

Indeed, lawyers for the defendants quickly sought to discredit Mr. Causey's plea agreement, claiming it resulted from desperation over the depletion of his finances and concern over what might potentially be a lengthy sentence. Daniel Petrocelli, the lead trial lawyer for Mr. Skilling, said federal prosecutors "broke an innocent man."

The deal that Mr. Causey and his lawyer reached with prosecutors is more generous than the agreement prosecutors reached with Andrew S. Fastow, the former chief financial officer of Enron, who faces 10 years in prison after agreeing to plead guilty. Mr. Causey first spoke to prosecutors about a plea deal about a year ago, but those discussions stalled until about a week ago, lawyers in the case said.

"Typically, the deals get worse over time, not better," said Robert A. Mintz, a former prosecutor who is now with McCarter & English and is not involved in the case.

The indication that federal prosecutors are still willing to strike a fairly reasonable plea deal, lawyers not involved in the case said, is a sign that they are still weaving a web around the defendants. It suggests that there is no limit to the number of insiders they are willing to bring on board to try to ensure a conviction of Mr. Lay and Mr. Skilling, by far the most prominent figures involved with Enron's collapse.

In Mr. Causey, prosecutors obtained access to another top former Enron executive who was involved in high-level discussions of numerous off-balance-sheet transactions and creative accounting entries that led to the company's downfall.

For instance, Mr. Causey was one of two participants in an Oct. 21, 2001, meeting with Mr. Lay that is the basis of one of the seven charges against Mr. Lay. At that time, Enron was nearing internal disarray as investors began to lose confidence in its accounting practices.

Enron filed for bankruptcy protection in early December of that year, setting off its rapid disintegration and the loss of about 4,000 jobs.

For Mr. Causey, who had previously pleaded not guilty to more than 30 counts of fraud, conspiracy, insider trading and other charges, the deal guarantees him a much shorter stay in federal prison than he would have faced had he been convicted at trial. Mr. Causey faced the possibility of 35 to 40 years in prison without parole.

The deal also offers the possibility of an even shorter sentence if he performs ably, in the opinion of prosecutors, against his former bosses. He will be the 16th person with ties to Enron who has admitted in court to committing crimes. Judge Lake set formal sentencing for April 21, though he said that could be delayed.

"Every client has a different kind of mettle," said Marc Powers, a lawyer with Baker & Hostetler who represented Douglas Faneuil, a former stockbroker's assistant who cooperated in the government's case against Martha Stewart. "Some look at the situation and think: 'Yes, this is my Waterloo.' Others are more willing to roll the dice."

While potentially damaging for Mr. Skilling and Mr. Lay, Mr. Causey's plea deal could also form the basis of a renewed appeal by their lawyers for a change of venue. Mr. Ramsey, the lawyer for Mr. Lay, said he would ask Judge Lake next week to consider moving the trial outside of Houston, where many residents still have painful memories of Enron's collapse.

"Currently, we're finding that about 75 percent of potential jurors have anger or deep-seated hatred toward anyone associated with Enron," Mr. Ramsey said.

Judge Lake previously rejected motions to move the trial away from Houston; on Wednesday he showed reluctance even to delay the start of the trial by two weeks, saying, "It's been a long, difficult and expensive process for the taxpayers." Judge Lake chided lawyers on both sides, claiming that it did not take "a rocket scientist or a graduate of Texas A&M" to prepare for the trial.

But lawyers say the defense will have new grounds to ask for a change because people in the Houston area who have been notified that they could be jurors will be subject to renewed publicity about Mr. Causey and the case.

"It provides a reasonable basis to renew that motion and they may well do it," said Daniel R. Alonso, a former federal prosecutor who has followed the case but is not involved.

In a reflection of how the plea agreement might affect Mr. Skilling and Mr. Lay differently, Mr. Petrocelli, Mr. Skilling's lawyer, said the deal had significantly complicated preparations for the trial. He said that the two-week delay in its start was not sufficient time to construct a radically new strategy. By contrast, Mr. Ramsey, representing Mr. Lay, said the short delay was ample time for the defense.

That schism might indicate that Mr. Causey's plea agreement is potentially more damaging to Mr. Skilling. Whatever the balance, prosecutors made clear that they intended to do everything possible to encourage Mr. Causey to be fully cooperative in their efforts to build a stronger case against both men.

"The government is going to have to tread carefully through the minefield here in trying to extract useful and admissible evidence from Mr. Causey," said Mr. Mintz, the former prosecutor.

Simon Romero reported from Houston for this article and Vikas Bajaj from New York.



Copyright 2005The New York Times Company Home Privacy Policy Search Corrections XML Help Contact Us Work for Us Site Map Back to Top

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Pentagon Calls Its Pro-U.S. Websites Legal
--------------------

An internal review finds that efforts aimed at the Balkans, northern Africa break no laws. But a Defense official says they might backfire.

By Mark Mazzetti
Times Staff Writer

December 29 2005

WASHINGTON; U.S. military websites that pay journalists to write articles and commentary supporting military activities in Europe and Africa do not violate U.S. law or Pentagon policies, a review by the Pentagon's chief investigator has concluded. But a senior Defense Department official said this week that the websites could still be shut down to avoid the appearance of impropriety.

The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...0,2874690.story

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December 30, 2005
Op-Ed Columnist
Heck of a Job, Bushie
By PAUL KRUGMAN
A year ago, everyone expected President Bush to get his way on Social Security. Pundits warned Democrats that they were making a big political mistake by opposing plans to divert payroll taxes into private accounts.

A year ago, everyone thought Congress would make Mr. Bush's tax cuts permanent, in spite of projections showing that doing so would lead to budget deficits as far as the eye can see. But Congress hasn't acted, and most of the cuts are still scheduled to expire by the end of 2010.

A year ago, Mr. Bush made many Americans feel safe, because they believed that he would be decisive and effective in an emergency. But Mr. Bush was apparently oblivious to the first major domestic emergency since 9/11. According to Newsweek, aides to Mr. Bush finally decided, days after Hurricane Katrina struck, that they had to show him a DVD of TV newscasts to get him to appreciate the seriousness of the situation.

A year ago, before "Brownie, you're doing a heck of a job" became a national punch line, the rising tide of cronyism in government agencies and the rapid replacement of competent professionals with unqualified political appointees attracted hardly any national attention.

A year ago, hardly anyone outside Washington had heard of Jack Abramoff, and Tom DeLay's position as House majority leader seemed unassailable.

A year ago, Dick Cheney, who repeatedly cited discredited evidence linking Saddam to 9/11, and promised that invading Americans would be welcomed as liberators - although he hadn't yet declared that the Iraq insurgency was in its "last throes" - was widely admired for his "gravitas."

A year ago, Howard Dean - who was among the very few prominent figures to question Colin Powell's prewar presentation to the United Nations, and who warned, while hawks were still celebrating the fall of Baghdad, that the occupation of Iraq would be much more difficult than the initial invasion - was considered flaky and unsound.

A year ago, it was clear that before the Iraq war, the administration suppressed information suggesting that Iraq was not, in fact, trying to build nuclear weapons. Yet few people in Washington or in the news media were willing to say that the nation was deliberately misled into war until polls showed that most Americans already believed it.

A year ago, the Washington establishment treated Ayad Allawi as if he were Nelson Mandela. Mr. Allawi's triumphant tour of Washington, back in September 2004, provided a crucial boost to the Bush-Cheney campaign. So did his claim that the insurgents were "desperate." But Mr. Allawi turned out to be another Ahmad Chalabi, a hero of Washington conference rooms and cocktail parties who had few supporters where it mattered, in Iraq.

A year ago, when everyone respectable agreed that we must "stay the course," only a handful of war critics suggested that the U.S. presence in Iraq might be making the violence worse, not better. It would have been hard to imagine the top U.S. commander in Iraq saying, as Gen. George Casey recently did, that a smaller foreign force is better "because it doesn't feed the notion of occupation."

A year ago, Mr. Bush hadn't yet openly reneged on Scott McClellan's 2003 pledge that "if anyone in this administration was involved" in the leaking of Valerie Plame's identity, that person "would no longer be in this administration." Of course, some suspect that Mr. Bush has always known who was involved.

A year ago, we didn't know that Mr. Bush was lying, or at least being deceptive, when he said at an April 2004 event promoting the Patriot Act that "a wiretap requires a court order. ...When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

A year ago, most Americans thought Mr. Bush was honest.

A year ago, we didn't know for sure that almost all the politicians and pundits who thundered, during the Lewinsky affair, that even the president isn't above the law have changed their minds. But now we know when it comes to presidents who break the law, it's O.K. if you're a Republican.

Thomas L. Friedman is on vacation.



Copyright 2005The New York Times Company

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Pace: U.S. to Launch Phased Iraq Pullout
By KIM GAMEL, Associated Press Writer

The U.S. will carry out planned withdrawals of American troops in Iraq only from regions where Iraqi forces can maintain security against the insurgents, the chairman of the joint chiefs of staff said Thursday.

Gen. Peter Pace said the current force of 160,000 would drop to below 138,000 by March, then U.S. commanders on the ground would work with the Iraqi government to determine the pace of future pullbacks in areas that have been secured by local security forces.

"The bottom line will be that the Iraqi army and the Iraqi police will gain in competence, that they will be able to take on more and more of the territory, whether or not there are still insurgents in that area," he said in an interview with a small group of reporters, including The Associated Press, aboard a military plane en route to the United Arab Emirates.

Amid congressional pressure and growing public opposition to the war, the Bush administration last week announced plans to reduce U.S. combat troops in Iraq to below the 138,000 level that prevailed most of this year.

The number of American forces in Iraq was raised to about 160,000 to provide extra security during the October referendum and December parliamentary elections, and Defense Secretary Donald H. Rumsfeld has said those extra troops would be leaving soon.

The exact size of the additional troops cuts has not been announced, but senior Pentagon officials have said the number of American troops in Iraq could drop to about 100,000 by next fall.

The decision where to cut troops "will be based on the Iraqi units in that area and the threat that exists in that area," Pace said earlier at a news conference in Bahrain.

The key, he stressed, "is the Iraqis' ability to control that area."

Pace has said American units will steadily hand off more security duties in the coming months to Iraqi forces and stressed the U.S. military needs to be flexible, but his comments offered a detailed glimpse of the administration's plans.

Pace's tour of the region came two weeks after Dec. 15 Iraqi parliament elections, which the United States considered a key step toward stability that could allow a drawdown of troops.

But violence has not stopped in Iraq. On Thursday, gunmen killed 12 members of an extended Shiite Family south off Baghdad and a suicide bomber killed a policeman in the capital.

Complaints by Sunni Arab and secular Shiite groups of widespread fraud and intimidation during the vote also have threatened to spark a serious crisis that could set back hopes for a broad-based government that could have the legitimacy necessary to diminish the insurgency — a key part of any U.S. military exit strategy from Iraq.

Pace said efforts were under way to recruit Sunnis into the Iraqi security forces, "especially on the officers' side."

Pace, who was making his first official visit to the region since becoming the first Marine to be named chairman of the joint chiefs of staff three months ago, said the withdrawals of two brigades in the coming months would provide a test for the decision to pull out troops.

"We are going to have to watch how these drawdowns go to see if we have judged it properly," he said.

Pace, who was traveling with his wife, Lynne, and a group of entertainers to offer holiday cheer to U.S. troops in the region, began his weeklong trip Wednesday in Qatar. He also planned stops in Iraq, Afghanistan and the East African nation of Djibouti.




Copyright © 2005 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.


Copyright © 2005 Yahoo! Inc. All rights reserved.

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Covert CIA Program Withstands New Furor

By Dana Priest

The effort President Bush authorized shortly after Sept. 11, 2001, to fight al Qaeda has grown into the largest CIA covert action program since the height of the Cold War, expanding in size and ambition despite a growing outcry at home and abroad over its clandestine tactics, according to... One...

To view the entire article, go to http://www.washingtonpost.com/wp-dyn/conte...er=emailarticle

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The Year in Bad News

By David Ignatius

At year-end, I usually like to offer readers a lighthearted collection of imaginary headlines, but 2005 somehow didn't seem very funny.

To view the entire article, go to http://www.washingtonpost.com/wp-dyn/conte...er=emailarticle

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My '05 Hits and Misses

By David S. Broder

When I sat down to review the past year's columns for my annual accounting of errors and misjudgments, I realized that the politicians I cover had set an impossibly high standard in 2005.

To view the entire article, go to http://www.washingtonpost.com/wp-dyn/conte...er=emailarticle

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Windows Security Flaw Is 'Severe'
PCs Vulnerable to Spyware, Viruses

By Brian Krebs
Special to The Washington Post
Friday, December 30, 2005; Page D01

A previously unknown flaw in Microsoft Corp.'s Windows operating system is leaving computer users vulnerable to spyware, viruses and other programs that could overtake their machines and has sent the company scrambling to come up with a fix.

Microsoft said in a statement yesterday that it is investigating the vulnerability and plans to issue a software patch to fix the problem. The company could not say how soon that patch would be available.



A clerk in Seoul with a box of Microsoft Corp.'s Windows software. Microsoft is trying to repair a flaw in the product. (By Seokyong Lee -- Bloomberg News)

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Mike Reavey, operations manager for Microsoft's Security Response Center, called the flaw "a very serious issue."

Security researchers revealed the flaw on Tuesday and posted instructions online that showed how would-be attackers could exploit the flaw. Within hours, computer virus and spyware authors were using the flaw to distribute malicious programs that could allow them to take over and remotely control afflicted computers.

Unlike with previously revealed vulnerabilities, computers can be infected simply by visiting one of the Web sites or viewing an infected image in an e-mail through the preview pane in older versions of Microsoft Outlook, even if users did not click on anything or open any files. Operating system versions ranging from the current Windows XP to Windows 98 are affected.

An estimated 90 percent of personal computers run on Microsoft Windows operating systems. Microsoft has found itself under attack on several instances and has been forced to issue a number of patches to keep computers running Windows safe. Mac and Linux computer users are not at risk with this attack, even if their computers run Microsoft programs such as Office or the Internet Explorer Web browser.

Reavey encouraged users to update their anti-virus software, ensure all Windows security patches are installed, avoid visiting unfamiliar Web sites, and refrain from clicking on links that arrive via e-mail or instant message.

"The problem with this attack is that it is so hard to defend against for the average user," said Johannes Ullrich, chief research officer for the SANS Internet Storm Center in Bethesda.

At first, the vulnerability was exploited by just a few dozen Web sites. Programming code embedded in these pages would install a program that warned victims their machines were infested with spyware, then prompted them to pay $40 to remove the supposed pests.

Since then, however, hundreds of sites have begun using the flaw to install a broad range of malicious software. SANS has received several reports of attackers blasting out spam e-mails containing links that lead to malicious sites exploiting the new flaw, Ullrich said.

Dean Turner, a senior manager at anti-virus firm Symantec Corp. of Cupertino, Calif., said the company has seen the vulnerability exploited to install software that intercepts personal and financial information when users of infected computers enter the data at certain banking or e-commerce sites.

Eric Sites, vice president of research and development for anti-spyware firm Sunbelt Software, said he has spotted spyware being downloaded to a user's machine by online banner advertisements.

"Pretty much all of the spyware guys who normally use other techniques for pushing this stuff down to your machine are now picking this exploit up," Sites said.

Because the vulnerability exists within a faulty Windows component, security experts warn that Windows users who eschew Internet Explorer in favor of alternative Web browsers, such as older versions of Firefox and Opera, can still get their PCs infected if they agree to download a file from a site taking advantage of the flaw.

Richard M. Smith, a Boston security and privacy consultant, said he was particularly worried that the vulnerability could soon be used to power a fast-spreading e-mail worm.

"We could see the mother of all worms here," Smith said. "My big fear is we're going to wake up in the next week or two and have people warning users not to read their e-mail because something is going around that's extremely virulent."

Brian Krebs is a washingtonpost.com reporter.

[theglobalchinese]

Not Much Remains for Texans in Path of Fire New York Times
Standing in the ashes of the home they had shared as newlyweds for five months, Johnny and ReNetha Bellew looked in vain Thursday for traces f the Christmas presents they had just exchanged - a new suit, a Texas Aggie T-shirt, Nike sneakers and ceramic collectibles. Nothing was left. But with 7,000 acres of Callahan County ravaged by 60-foot-high walls of flame that erupted Tuesday afternoon, destroying more than 100 homes and claiming two lives in this small town southeast of Abilene, the Bellews at least were spared. "When I saw the flames at the end of the street, I knew we had to go," said Mr. Bellew, 21, a bank teller.

Brian Harkin for The New York Times - Crystal McDaniel and relatives in what remained of her sister ReNetha Bellew's home in Cross Plains, Tex.
At least four people have died and nearly 200 homes burned this week in grass fires throughout Texas and Oklahoma in the region's worst drought in 50 years. With weather conditions still right for outbreaks, local officials are so worried about New Year's weekend that they are stringently enforcing a ban on open, outdoor fires and fireworks and declaring some disaster areas. Officials plan to use electronic road signs to alert drivers to the dangerous conditions and the ban. They are also warning residents that in some areas breaking the ban can result in hefty fines or jail time. "These fires were all in one way or another human caused," said a Texas Forest Service spokesman, Traci Weaver. "The absolute best option is not to have the fire start in the first place. We lost 15,000 acres and 150 structures in Texas in a 24-hour period. That's devastating." Fires throughout parts of Texas have erupted from fireworks, welding and burning trash in barrels. The fire that engulfed a third of this ranching town about 150 miles west of Dallas began on the side of a road, leading officials to suspect it was ignited by a cigarette thrown out a window or by a spark from a car's catalytic converter, Ms. Weaver said. The Cross Plains Volunteer Fire Department responded quickly to the fire and had it under control for a while. But the wind shifted and picked up, and the fire moved to an area heavy with dry brush of juniper and scrub oaks, an area that was "a tinderbox ready to ignite," said Sparky Dean, a senior trooper and spokesman for the Texas Department of Public Safety in Abilene. At the peak, 31 fire departments fought the blaze, which changed direction with the wind three times, officials said. "It's one of those things, it just happens once in a while," Mr. Dean said. "I'm sure the experts can sit down at some point and figure out if there is something we can do to avoid this, but I don't know. I put this in same category as tsunamis, tornadoes, hurricanes and volcanoes. There's not a whole lot you can do." Gov. Rick Perry visited Cross Plains on Thursday, meeting with residents who lost homes and comforting those who lost family members. He said the state had sought a federal declaration of disaster. Blair Jones, a White House spokesman, said assistance was being provided by the Forest Service and the Department of Interior. In Fort Worth, Judge Tom Vandergriff declared Tarrant County a disaster area on Thursday. The county has had numerous grass fires. "Our motivation was to try to warn everyone of the dangers that are involved here and to try to limit any activity that might prevent problems for us," said Judge Vandergriff, the chief executive of the county. "We thought public action of this nature would cause everybody to pay attention to the repercussions of carelessness. We just must forgo some of the traditional activity associated with the New Year celebration this year." Though fire has destroyed homes and property in Texas and Oklahoma, the prairie land it has scorched is far from ruined, ecologists with the Texas Department of Parks and Wildlife say. "The land itself will be renewed and restored," said John Davis, an ecologist with the department. "If and when we do get rain again, those pastures will respond better than ever."
US grass fires leave at least five people dead Taipei Times
Fires Reflect Wider Disaster: Drought Los Angeles Times
KHON2 - San Francisco Chronicle - CNN - Houston Chronicle - all 2,064 related »

[theglobalchinese]

Soldier on leave in NY charged in shooting death CNN
Random shot killed young mother at window of apartment. A US soldier on leave from the Army was arrested Thursday for allegedly firing into the air and killing a young mother as she looked out her fifth floor apartment window, authorities said. U.S. Army Pvt. Danny Carpio, 23, is accused of randomly firing a gun in Queens late Wednesday. One bullet struck 28-year-old Selina Akthel in the head, killing her instantly, said Kevin Ryan, the spokesman for Queens District Attorney Richard Brown. Akthel's husband and two young children were in the apartment when she was killed. "Whoever did it destroyed the family of my kids -- my life," her husband, Golam Maola, told CNN affiliate WABC. Carpio is to be arraigned in Queens Criminal Court Friday on one charge of second-degree manslaughter and criminal possession of a weapon, Ryan said. Each count carries a maximum 15-year sentence. "There may be additional charges," Ryan said. He said Carpio, who had joined the Army about six months ago, was stationed in Fort Hood, Texas, and had been on leave in New York to pick up his wife and return with her to Texas. Ryan said Carpio had been drinking and was standing outside on the sidewalk with friends when he allegedly fired a gun the air about three or four times. Akthel was "standing at her apartment window" when she was struck, Ryan said. A police report said Akthel was dead when emergency personnel arrived. Carpio was being held at a police precinct in Queens and is assisting police in trying to locate the gun, Ryan said. "As a soldier trained in the safety and handling of weapons both on and off the battlefield, the defendant should have known better than to aimlessly fire a gun in a crowded residential area," District Attorney Brown said in a written statement. "As a result of this thoughtless action, a young woman is now dead and two little children must face the difficult and heartbreaking chore of adjusting to a life empty of their mother's presence. Sadly, this case is a grim lesson -- especially during this holiday season -- why guns and drinking are a lethal mixture."
Stray bullet kills S Asian expat BBC News
'I've lost my wife, New York Daily News
CBC News - Los Angeles Times - New York Times - Newsday - all 200 related »

[Snuffysmith]

http://www.opinionjournal.com/editorial/fe...ml?id=110007734

FISA vs. the Constitution
Congress can't usurp the president's power to spy on America's enemies.

BY ROBERT F. TURNER
Wednesday, December 28, 2005 12:01 a.m.

In the continuing saga of the surveillance "scandal," with some congressional Democrats denouncing President Bush as a lawbreaker and even suggesting that impeachment hearings may be in order, it is important to step back and put things in historical context. First of all, the Founding Fathers knew from experience that Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because "we find by fatal experience that Congress consists of too many members to keep secrets."
When the Constitution was being ratified, John Jay--America's most experienced diplomat and George Washington's first choice to be secretary of state--wrote in Federalist No. 64 that there would be cases in which "the most useful intelligence" may be obtained if foreign sources could be "relieved from apprehensions of discovery," and noted there were many "who would rely on the secrecy of the president, but who would not confide in that of the Senate." He then praised the new Constitution for so distributing foreign-affairs powers that the president would be able "to manage the business of intelligence in such manner as prudence may suggest."

In 1790, when the first session of the First Congress appropriated money for foreign intercourse, the statute expressly required that the president "account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify." They made no demand that President Washington share intelligence secrets with them. And in 1818, when a dispute arose over a reported diplomatic mission to South America, the legendary Henry Clay told his House colleagues that if the mission had been provided for from the president's contingent fund, it would not be "a proper subject for inquiry" by Congress.





For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.

Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.

I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."

For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.

Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.





America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

Mr. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President's Intelligence Oversight Board, 1982-84.


Copyright © 2005 Dow Jones & Company, Inc. All Rights Reserved.

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How Bedrock Promises Of Security Have Fractured Across America
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Companies are discarding traditional pensions -- or making government foot the bill. Delphi workers struggle with the changing landscape.

By Peter G. Gosselin
Times Staff Writer

December 30 2005

For more than two decades, Lowell Seibert made a living driving piles and erecting machinery across the industrial Midwest.

The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...=la-home-nation

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Justice Dept. Probing Domestic Spying Leak
By TONI LOCY, Associated Press Writer

The Justice Department has opened an investigation into the leak of classified information about President Bush's secret domestic spying program, Justice officials said Friday.

The officials, who requested anonymity because of the sensitivity of the probe, said the inquiry will focus on disclosures to The New York Times about warrantless surveillance conducted by the National Security Agency since the Sept. 11 terrorist attacks.

The Times revealed the existence of the program two weeks ago in a front-page story that acknowledged the news had been withheld from publication for a year, partly at the request of the administration and partly because the newspaper wanted more time to confirm various aspects of the program.

Catherine Mathis, a spokeswoman for The Times, said the paper will not comment on the investigation.

Revelation of the secret spying program unleashed a firestorm of criticism of the administration. Some critics accused the president of breaking the law by authorizing intercepts of conversations — without prior court approval or oversight — of people inside the United States and abroad who had suspected ties to al-Qaida or its affiliates.

The surveillance program, which Bush acknowledged authorizing, bypassed a nearly 30-year-old secret court established to oversee highly sensitive investigations involving espionage and terrorism.

Administration officials insisted that Bush has the power to conduct the warrantless surveillance under the Constitution's war powers provision. They also argued that Congress gave Bush the power to conduct such a secret program when it authorized the use of military force against terrorism in a resolution adopted within days of the Sept. 11, 2001, attacks.

The Justice Department's investigation was being initiated after the agency received a request for the probe from the NSA.

Special prosecutor Patrick Fitzgerald has been conducting a separate leak investigation to determine who in the administration leaked CIA operative Valerie Plame's name to the media in 2003.

Several reporters have been called to testify before a grand jury or to give depositions. New York Times reporter Judith Miller spent 85 days in jail, refusing to reveal her source, before testifying in the probe.

The administration's legal interpretation of the president's powers allowed the government to avoid requirements under the 1978 Foreign Intelligence Surveillance Act in conducting the warrantless surveillance.

The act established procedures that an 11-member court used in 2004 to oversee nearly 1,800 government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.

Congressional leaders have said they were not briefed four years ago, when the secret program began, as thoroughly as the administration has since contended.

Former Senate Majority Leader Tom Daschle said in an article printed last week on the op-ed page of The Washington Post that Congress explicitly denied a White House request for war-making authority in the United States.

"This last-minute change would have given the president broad authority to exercise expansive powers not just overseas ... but right here in the United States, potentially against American citizens," Daschle wrote.

Daschle was Senate Democratic leader at the time of the 2001 terrorist attacks on New York City and Washington. He is now a fellow at the Center for American Progress, a liberal Washington think tank.

The administration formally defended its domestic spying program in a letter to Congress last week, saying the nation's security outweighs privacy concerns of individuals who are monitored.

In a letter to the chairs of the House and Senate intelligence committees, the Justice Department said Bush authorized conducting electronic surveillance without first obtaining a warrant in an effort to thwart terrorist acts against the United States.

Assistant Attorney General William E. Moschella acknowledged "legitimate" privacy interests. But he said those interests "must be balanced" against national security.



Copyright © 2005 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.


Copyright © 2005 Yahoo! Inc. All rights reserved.

[Snuffysmith]

http://www.aclu.org/safefree/general/23288prs20051230.html

ACLU Slams DOJ Investigation of NSA Whistleblower, Says Government Must Independently Investigate Violation of Wiretap Laws (12/30/2005)

FOR IMMEDIATE RELEASE
Contact: Media@aclu.org

NEW YORK - The American Civil Liberties Union today sharply criticized a Justice Department investigation into the disclosure of an illegal National Security Agency domestic eavesdropping operation approved by President George W. Bush.

In a letter to Attorney General Alberto Gonzales as well as two full-page advertisements in the New York Times, the ACLU has called for the appointment of a special counsel to determine whether President Bush violated federal wiretapping laws by authorizing illegal surveillance of domestic targets.

The following statement can be attributed to ACLU Executive Director Anthony D. Romero:

"President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of U.S. citizens. But rather than focus on this constitutional crisis, Attorney General Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistleblowers who are courageous enough to speak out on violations of the law."

"To avoid further charges of cronyism, Attorney General Gonzales should call off the investigation. Better yet, Mr. Gonzales ought to fulfill his own oath of office and appoint a special counsel to determine whether federal laws were violated."