The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?
By JENNIFER VAN BERGEN
----
Monday, Jan. 09, 2006

When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.

This news came fast on the heels of Bush's shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.



And before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.

All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: Presidential power must be unilateral, and unchecked.

But the most recent and blatant presidential intrusions on the law and Constitution supply the verse to that refrain. They not only claim unilateral executive power, but also supply the train of the President's thinking, the texture of his motivations, and the root of his intentions.

They make clear, for instance, that the phrase "unitary executive" is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.

In this column, I will consider the meaning of the unitary executive doctrine within a democratic government that respects the separation of powers. I will ask: Can our government remain true to its nature, yet also embrace this doctrine?

I will also consider what the President and his legal advisers mean by applying the unitary executive doctrine. And I will argue that the doctrine violates basic tenets of our system of checks and balances, quietly crossing longstanding legal and moral boundaries that are essential to a democratic society.

President Bush's Aggressive Use of Presidential Signing Statements


Bush has used presidential "signing statements" - statements issued by the President upon signing a bill into law -- to expand his power. Each of his signing statements says that he will interpret the law in question "in a manner consistent with his constitutional authority to supervise the unitary executive branch."

Presidential signing statements have gotten very little media attention. They are, however, highly important documents that define how the President interprets the laws he signs. Presidents use such statements to protects the prerogative of their office and ensure control over the executive branch functions.

Presidents also -- since Reagan -- have used such statements to create a kind of alternative legislative history. Attorney General Ed Meese explained in 1986 that:

To make sure that the President's own understanding of what's in a bill is the same . . . is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.


The alternative legislative history would, according to Dr. Christopher S. Kelley, professor of political science at the Miami University at Oxford, Ohio, "contain certain policy or principles that the administration had lost in its negotiations" with Congress.

The Supreme Court has paid close attention to presidential signing statements. Indeed, in two important decisions -- the Chadha and Bowsher decisions - the Court relied in part on president signing statements in interpreting laws. Other federal courts, sources show, have taken note of them too.

President Bush has used presidential signing statements more than any previous president. From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times. It is important, therefore, to understand what this doctrine means.

What Does the Administration Mean When It Refers to the "Unitary Executive"?

Dr. Kelley notes that the unitary executive doctrine arose as the result of the twin circumstances of Vietnam and Watergate. Kelley asserts that "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," which resulted in a congressional assault on presidential prerogatives.

For example, consider the Foreign Intelligence Surveillance Act (FISA) which Bush evaded when authorizing the NSA to tap without warrants -- even those issued by the FISA court. FISA was enacted after the fall of Nixon with the precise intention of curbing unchecked executive branch surveillance. (Indeed, Nixon's improper use of domestic surveillance was included in Article 2 paragraph (2) of the impeachment articles against him.)

According to Kelley, these congressional limits on the presidency, in turn, led "some very creative people" in the White House and the Department of Justice's Office of Legal Counsel (OLC) to fight back, in an attempt to foil or blunt these limits. In their view, these laws were legislative attempts to strip the president of his rightful powers. Prominent among those in the movement to preserve presidential power and champion the unitary executive doctrine were the founding members of the Federalist Society, nearly all of whom worked in the Nixon, Ford, and Reagan White Houses.

The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

The Unitary Executive Versus Judicial Supremacy

The coordinate construction theory counters the long-standing notion of "judicial supremacy," articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: "It is emphatically the province and duty of the judicial department to say what the law is."

Of course, the President has a duty not to undermine his own office, as University of Miami law professor Michael A. Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the "Take Care clause" to preserve, protect, and defend the Constitution and to "take care" that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush's recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush's oath of office, as well.

After all, can it be possible that that oath means that the President must uphold the Constitution only as he construes it - and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn't like - even though they were validly passed by Congress and signed into law by him?

Analyzing Bush's Disturbing Signing Statement for the McCain Anti-Torture Bill

Let's take a close look at Bush's most recent signing statement, on the torture bill. It says:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

In this signing statement, Bush asserts not only his authority to internally supervise the "unitary executive branch," but also his power as Commander-in-Chief, as the basis for his interpretation of the law -- which observers have noted allows Bush to create a loophole to permit the use of torture when he wants.

Clearly, Bush believes he can ignore the intentions of Congress. Not only that but by this statement, he has evinced his intent to do so, if he so chooses.

On top of this, Bush asserts that the law must be consistent with "constitutional limitations on judicial power." But what about presidential power? Does Bush see any constitutional or statutory limitations on that? And does this mean that Bush will ignore the courts, too, if he chooses - as he attempted, recently, to do in the Padilla case?

The Unitary Executive Doctrine Violates the Separation of Powers

As Findlaw columnist Edward Lazarus recently showed, the President does not have unlimited executive authority, not even as Commander-in-Chief of the military. Our government was purposely created with power split between three branches, not concentrated in one.

Separation of powers, then, is not simply a talisman: It is the foundation of our system. James Madison wrote in The Federalist Papers, No. 47, that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Another early American, George Nicholas, eloquently articulated the concept of "power divided" in one of his letters:

The most effectual guard which has yet been discovered against the abuse of power, is the division of it. It is our happiness to have a constitution which contains within it a sufficient limitation to the power granted by it, and also a proper division of that power. But no constitution affords any real security to liberty unless it is considered as sacred and preserved inviolate; because that security can only arise from an actual and not from a nominal limitation and division of power.
Yet it seems a nominal limitation and division of power - with real power concentrated solely in the "unitary executive" - is exactly what President Bush seeks. His signing statements make the point quite clearly, and his overt refusal to follow the laws illustrates that point: In Bush's view, there is no actual limitation or division of power; it all resides in the executive.

Thomas Paine wrote in Common Sense:

In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.
The unitary executive doctrine conflicts with Paine's principle - one that is fundamental to our constitutional system. If Bush can ignore or evade laws, then the law is no longer king. Americans need to decide whether we are still a country of laws - and if we are, we need to decide whether a President who has determined to ignore or evade the law has not acted in a manner contrary to his trust as President and subversive of constitutional government.

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Judges Just Briefed on Surveillance Plans By MARK SHERMAN, Associated Press Writer
2 hours, 46 minutes ago



The federal judges who were bypassed when the Bush administration ordered warrantless wiretaps in the United States received a secret briefing Monday on details of the surveillance. Separately, a former FBI director and other lawyers questioned whether the surveillance is legal.

The classified briefing at the Justice Department had been requested by U.S. District Judge Colleen Kollar-Kotelly, presiding judge on the Foreign Intelligence Surveillance Act court. Established by Congress in the late 1970s, the court oversees the government's handling of espionage and terrorism investigations.

U.S. District Judge James Robertson last month resigned from the FISA court and other judges voiced concerns about the National Security Agency's electronic surveillance program, which President Bush authorized after the Sept. 11, 2001 terror attacks.

Gen. Michael Hayden, the principal deputy director of national intelligence, was among administration officials who attended the briefing. Hayden served as NSA director when the electronic surveillance program was launched and has since become the government's No. 2 intelligence official.

Details of the program remain highly classified.

Justice Department and NSA spokesmen refused to confirm that a meeting took place. A spokesman for Kollar-Kotelly likewise declined comment and the nine other FISA court judges did not return telephone calls Monday.

But two government officials, speaking on condition of anonymity because of the sensitivity of the issue, confirmed the briefing and Hayden's presence.

According to an account in the Washington Post, U.S. District Judge Dee Benson of Utah, a member of the special panel, has asked why the special court was not used in conducting the surveillance.

"If you've got us here, why didn't you go through us? They've said it's faster (to bypass FISA), but they have emergency authority under FISA, so I don't know," Benson was quoted by the newspaper as saying.

The existence of the program was first reported last month by the New York Times. Bush later acknowledged he approved the warrantless surveillance and, along with senior lieutenants, has stoutly defended it.

In a letter Monday to congressional leaders, 13 legal scholars said the Justice Department's written justification for the NSA monitoring program "fails to offer a plausible legal defense."

In a five-page letter to House and Senate intelligence committee leaders, Assistant Attorney General William E. Moschella on Dec. 22 outlined a detailed defense for the warrantless surveillance.

He argued that Bush under a congressional resolution passed after the Sept. 11, 2001 terrorist attack, had the authority to order such electronic surveillance as part of his responsibility as commander-in-chief to protect the nation.

But the former government officials and constitutional law experts said Congress did not authorize domestic spying as part of the 2001 resolution. Lawmakers, they wrote, also "indisputably" have the authority to regulate electronic surveillance inside the United States.

The 13 experts said it is "beyond dispute that, in (our) democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

Legal analysts at the Congressional Research Service last week raised similar questions, and lawmakers have called for hearings on the NSA program.

The group included former federal judge William S. Sessions, who served as FBI director from 1987 to 1993 under President Reagan and President George H.W Bush.

____

Associated Press writer Katherine Shrader contributed to this report.



Copyright © 2006 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 © 2006 Yahoo! Inc. All rights reserved.

Judges Just Briefed on Surveillance Plans
By MARK SHERMAN, Associated Press Writer

The federal judges who were bypassed when the Bush administration ordered warrantless wiretaps in the United States received a secret briefing Monday on details of the surveillance. Separately, a former FBI director and other lawyers questioned whether the surveillance is legal.

The classified briefing at the Justice Department had been requested by U.S. District Judge Colleen Kollar-Kotelly, presiding judge on the Foreign Intelligence Surveillance Act court. Established by Congress in the late 1970s, the court oversees the government's handling of espionage and terrorism investigations.

U.S. District Judge James Robertson last month resigned from the FISA court and other judges voiced concerns about the National Security Agency's electronic surveillance program, which President Bush authorized after the Sept. 11, 2001 terror attacks.

Gen. Michael Hayden, the principal deputy director of national intelligence, was among administration officials who attended the briefing. Hayden served as NSA director when the electronic surveillance program was launched and has since become the government's No. 2 intelligence official.

Details of the program remain highly classified.

Justice Department and NSA spokesmen refused to confirm that a meeting took place. A spokesman for Kollar-Kotelly likewise declined comment and the nine other FISA court judges did not return telephone calls Monday.

But two government officials, speaking on condition of anonymity because of the sensitivity of the issue, confirmed the briefing and Hayden's presence.

According to an account in the Washington Post, U.S. District Judge Dee Benson of Utah, a member of the special panel, has asked why the special court was not used in conducting the surveillance.

"If you've got us here, why didn't you go through us? They've said it's faster (to bypass FISA), but they have emergency authority under FISA, so I don't know," Benson was quoted by the newspaper as saying.

The existence of the program was first reported last month by the New York Times. Bush later acknowledged he approved the warrantless surveillance and, along with senior lieutenants, has stoutly defended it.

In a letter Monday to congressional leaders, 13 legal scholars said the Justice Department's written justification for the NSA monitoring program "fails to offer a plausible legal defense."

In a five-page letter to House and Senate intelligence committee leaders, Assistant Attorney General William E. Moschella on Dec. 22 outlined a detailed defense for the warrantless surveillance.

He argued that Bush under a congressional resolution passed after the Sept. 11, 2001 terrorist attack, had the authority to order such electronic surveillance as part of his responsibility as commander-in-chief to protect the nation.

But the former government officials and constitutional law experts said Congress did not authorize domestic spying as part of the 2001 resolution. Lawmakers, they wrote, also "indisputably" have the authority to regulate electronic surveillance inside the United States.

The 13 experts said it is "beyond dispute that, in (our) democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

Legal analysts at the Congressional Research Service last week raised similar questions, and lawmakers have called for hearings on the NSA program.

The group included former federal judge William S. Sessions, who served as FBI director from 1987 to 1993 under President Reagan and President George H.W Bush.

____

Associated Press writer Katherine Shrader contributed to this report.



Copyright © 2006 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 © 2006 Yahoo! Inc. All rights reserved.

January 10, 2006
Judges and Justice Dept. Meet Over Eavesdropping Program
By ERIC LICHTBLAU

WASHINGTON, Jan. 9 - The Justice Department held an unusual closed-door briefing Monday for judges on a secret foreign-intelligence court in response to concerns about President Bush's decision to allow domestic eavesdropping without warrants.

A number of judges from around the country who serve on the Foreign Intelligence Surveillance Court, which issues eavesdropping warrants in terror cases, flew to Washington to hear the administration's defense of the legality and use of the program, officials said.

One federal judge who sat on the court, James Robertson, stepped down in protest last month after the surveillance operation was first publicly disclosed.

Some of the other 10 judges on the court are known to have voiced recent concerns about whether information that grew out of the National Security Agency's surveillance operation might have been used improperly in securing warrants from the court for intelligence wiretaps.

The judge who leads the court, Colleen Kollar-Kotelly, the only judge currently sitting on the court who is known to have been briefed on the N.S.A. operation, raised objections in 2004 to aspects of the program and instructed for a time that no material obtained by the N.S.A. without warrants could be presented to the court in warrant applications, officials have said in interviews.

At Monday's briefing, judges were expected to question Justice Department officials intensely about the legal underpinnings of the program, but afterward they would say little about the session. Judge Kollar-Kotelly did not return calls seeking comment on the briefing, which was held at the Justice Department, and officials for the department and the court would not discuss any aspect.

"There is going to be no comment about today," said Sheldon Snook, an administrator for the United States District Court in Washington. "The court has never commented publicly about their business."

The Bush administration, in defending the use of the N.S.A. program, has pointed to frustrations over the speed and flexibility of the foreign-intelligence court as one reason for allowing the N.S.A. to eavesdrop without warrants.

The intelligence court's caseload has grown significantly since the Sept. 11 attacks, with more than 1,700 warrants issued as of the last public tally in 2004. Only a handful of requests for wiretaps have been turned down in recent years.

The 1978 law creating the court allows the administration to conduct emergency wiretaps and seek a formal order retroactively within 72 hours, but the White House says the system can be too cumbersome to allow for quick responses to developing terror threats.

In some cases, the Justice Department is known to have secured warrants from the foreign intelligence court in cases that grew out of the N.S.A.'s eavesdropping program. That has raised concerns among civil rights advocates.

Some defense lawyers in prominent terror cases around the country said they planned to go to court to determine whether the N.S.A. program had been used against their clients and, if so, whether courts or defense lawyers had been misled about the origins of the evidence against them.

A group of 13 law professors and former government officials weighed in Monday in the heated legal debate, writing in a letter to Congressional leaders that they had serious concerns about the legality of Mr. Bush's executive order.

The White House has strongly defended the lawfulness of the program, saying it was grounded both in the president's inherent authority under the Constitution and in a resolution passed by Congress days after the Sept. 11 attacks authorizing him to use "all necessary and appropriate force" against those responsible for the attacks.

But an analysis released last Friday by the Congressional Research Service, a nonpartisan arm of Congress, took issue with several of the administration's main legal arguments, saying that Congress did not appear to have ever intended to give Mr. Bush the authority to conduct wiretaps without a warrant.

In the letter released Monday, the 13 law professors and former government officials went further, writing that "the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law."

http://www.nytimes.com/2006/01/10/politics...agewanted=print

This is from the Roanoke Times:

http://www.roanoke.com/editorials/commentary/wb/wb/xp-47626

http://www.fff.org/comment/com0601c.asp

The FISA Farce
by James Bovard, January 9, 2006

President Bush proudly announced last month that he is violating federal law. He declared that in 2002 he ordered the National Security Agency to begin conducting warrantless wiretaps and email intercepts on Americans. He asserted that the wiretaps would continue, regardless of the law.

Bush claims that he must ignore the law because the secret federal court created to authorize such wiretaps moves too slowly to protect U.S. national security. Amazingly, his claim has been treated with respect, if not deference, by much of the nation’s media. Much of the media has groveled to his claim the same way that the special court grovels to federal agencies.

In 1978, responding to scandals about political spying on Americans in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA created a new “court” to oversee federal surveillance of foreign agents within the United States.

The FISA court may be the biggest bunch of lapdogs in the federal government. The court approved almost every one of the 15,000 search warrant requests the feds submitted between 1978 and 2002, and it continues to approve more than 99 percent of requests.

FISA provides a judicial process only in the sense that the room where the political appointees convene is called a “court.” As national security expert James Bamford observed, “Like a modern Star Chamber, the FISA court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The eleven judges (increased from seven by the Patriot Act) hear only the government’s side.”

Federal agencies can submit retroactive search warrant requests up to 72 hours after they begin surveilling someone. In 2002, for instance, Attorney General John Ashcroft personally issued more than 170 emergency domestic spying warrants — permitting agents to carry out wiretaps and search homes and offices for as many as 72 hours before the feds requested a search warrant from the FISA court. He used such powers almost a 100 times as often as attorneys general did before 9/11.

Congress set a very low standard for FISA search warrants. In federal criminal investigations, the government must show probable cause that a person is involved in criminal activity before being permitted to impose a wiretap. Under FISA, the government need show only that a person is suspected of being an agent of a foreign power or terrorist organization.

When FISA authorizes surveillance, the feds can switch on all the turbos. In a 2002 decision, the Foreign Intelligence Surveillance Court noted that after it grants a surveillance request,

The FBI will be authorized to conduct, simultaneously, telephone, microphone, cell phone, e-mail and computer surveillance of the U.S. person target’s home, workplace and vehicles. Similar breadth is accorded the FBI in physical searches of the target’s residence, office, vehicles, computer, safe deposit box and U.S. mails.
After 9/11, the Justice Department vigorously lobbied for Congress to revise FISA to permit it to be used for spying on Americans with little or no relationship to foreign powers or terrorist plots. Ashcroft claimed that the reform was needed because FISA had impeded efforts to track terrorists. The dispute was not over whether foreign agents should be tracked: no one in Congress was opposed to that. The issue was whether the feds could launch massive surveillance operations against U.S. citizens on the pretext of fighting terrorism even though there was no evidence of their criminal wrongdoing. Congress acquiesced to Ashcroft’s demands.

The USA PATRIOT Act changed the law to make it far easier to use FISA search warrants against Americans. During the PATRIOT Act mini-deliberations, the Justice Department claimed that the FISA restrictions fatally delayed its efforts to secure a search warrant for Zacarias Moussaoui’s computer. Moussaoui is the suspected “twentieth hijacker,” who was arrested in Minnesota on August 16, 2001. But as a 2003 Senate Judiciary Committee report noted, the FBI had sufficient information to get a FISA wiretap before 9/11 but failed to do so because “key FBI personnel responsible for protecting our country against terrorism did not understand the law.” FBI headquarters agents believed that before a FISA wiretap could be requested, Moussaoui had to be linked to an organization that the U.S. government formally labeled as terrorist.

But that was not the case. The Senate report noted, “In the time leading up to the 9/11 attacks, the FBI and DOJ had not devoted sufficient resources to implementing the FISA, so that long delays both crippled enforcement efforts and demoralized line agents.” Eleanor Hill, the staff director for the Joint Intelligence Committee investigation into pre-9/11 failures, observed, “The lesson of Moussaoui was that F.B.I. headquarters was telling the field office the wrong advice.”

A few months after the PATRIOT Act was signed, Ashcroft proposed new regulations to “allow FISA to be used primarily for a law enforcement purpose.” The seven FISA judges unanimously rejected his power grab as contrary to federal law. The Bush administration appealed the decision, and a special FISA appeals court met in secret and only the Justice Department was permitted to argue its side. Steve Aftergood, editor of the Federation of American Scientists’ Secrecy News, commented that the transcript of the hearing (released months after the fact) showed that “the judges generally assumed a servile posture toward the executive branch, even consulting the Justice Department on how to handle its critics.”

The FISA appeals court, in a November 2002 decision, unleashed the Justice Department and gave Ashcroft everything he wanted. He proclaimed that its decision “revolutionizes our ability to investigate terrorists and prosecute terrorist acts.”

But the FISA appeals court decision encourages federal agents to seek FISA warrants even in cases with very doubtful links to terrorism or terrorist activity. American Civil Liberties Union lawyer Ann Beeson observed that the FISA appeals court decision “suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants.”

Even though the FISA court is often a farce, providing only a façade of judicial procedure, any restriction on domestic spying was too much for the Bush administration. Or perhaps Bush believes that being obliged to request retroactive search warrants tarnishes his imperial majesty. It remains to be seen whether Congress or federal courts will hold the president liable for proclaiming that he is above the law.

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation. Send him email.

And from the erstwhile Wall Street Journal, we have this:


http://www.opinionjournal.com/editorial/fe...ml?id=110007791

REVIEW & OUTLOOK

A Real Surveillance Scandal
Rename the FBI building. And leave the Presidency alone.

Tuesday, January 10, 2006 12:01 a.m. EST

Eternal vigilance, it's been rightly said, is the price of liberty. But Americans are not well served by politicians in Washington who keep crying wolf over imagined violations of their civil rights.

The latest hysteria surrounds the Bush Administration's warrantless wiretapping of terror suspects. Congress is planning hearings, and even many usually sound legislators continue to question the White House. But it's become clear in the weeks since the story broke that Administrations of both parties as well as the courts have always held that warrants are not required for such intelligence gathering.

We'd also have an easier time taking our solons seriously if they'd ever demonstrated they understand what the real abuse of surveillance powers looks like. A good place to start would be stripping J. Edgar Hoover's name from FBI headquarters.

For at least 30 years, Congress has known full well that Hoover didn't serve nearly five decades as FBI director because he was indispensable, but because he'd amassed potentially embarrassing information on the elected leaders who might have wanted to remove him from his post. Hoover was also willing to use the FBI illegitimately to spy on the politically difficult likes of Martin Luther King Jr. It has even been suggested that Hoover engineered Lyndon Johnson's nomination for the Vice Presidency by threatening JFK with the revelation of his extramarital affairs. That Hoover's name continues to adorn FBI headquarters needlessly shames every one of the honest civil servants who report for work there on a daily basis.
But don't just take our word about Hoover. Ask federal judge Laurence Silberman, who as acting Attorney General in the 1970s was one of the few Americans to examine Hoover's files after his death and who, having served as an appeals judge on the Foreign Intelligence Surveillance Court, knows a thing or two about the use and abuse of executive power. Judge Silberman has described Hoover as a "sewer" and "the worst public servant in our history." Last summer we published an op-ed in which the judge elaborated on what he'd seen in those files, though no one in Congress seemed to pick up on it. (Click here to read the article.)

Contrast Hoover's abuses with the program the Bush Administration's critics have described. No one has found any evidence of any spying recently on anybody's domestic political enemies. Instead, the "controversial" NSA surveillance has been directed at people with unambiguous al Qaeda connections. Nor was it a secret in the sense of being hidden from other parts of government.





Key members of the relevant Congressional oversight committees were informed at least 12 times. The chief judges of the FISA court knew about it. The process was routinely reviewed by Justice Department lawyers and by the Attorney General himself. And the President examined and reauthorized the program every 45 days or so.
In short, if there were any real abuses going on here, there were plenty of people in the loop and able to blow the whistle. Instead, we've only heard from people who, for reasons of partisanship or ignorance of the President's Constitutional war-fighting powers, object to warrantless surveillance per se. Dressing up such a separation of powers dispute in the language of scandal, as is happening now, serves no one but our common enemies.

After all, vigilance in defense of liberty means vigilance against foreign bad guys too. If Congress wants to demonstrate its concern about the potential misuse of surveillance power, it can rename the FBI building and put would-be lawbreakers on notice that they will not be remembered fondly. But Congress should also leave honest Presidents alone to perform their Constitutional duty to defend the homeland.

Differing Views on Terrorism
Americans Divided on Eavesdropping Program, Poll Finds

By Dan Balz and Claudia Deane
Washington Post Staff Writers
Wednesday, January 11, 2006; A04



Americans overwhelmingly support aggressive government pursuit of terrorist threats, even if it may infringe on personal privacy, but they divide sharply along partisan lines over the legitimacy of President Bush's program of domestic eavesdropping without court authorization, according to a new Washington Post-ABC News poll.

Nearly two in three Americans surveyed said they believe that federal agencies involved in anti-terrorism activities are intruding on the personal privacy of their fellow citizens, but fewer than a third said such intrusions are unjustified.

At the same time, however, those surveyed are more narrowly divided over whether the federal government is doing enough to protect the rights of both citizens and terrorism suspects.

Republicans offer far greater support for actions directly attributed to the Bush administration in the campaign against terrorism than do Democrats, who worry that the president will go too far and ignore civil liberties.

But the broad issue of protecting the country vs. preserving personal privacy splits each party's coalition, according to the poll. Some Democrats are willing to support tough anti-terrorism policies at the expense of personal privacy, and some Republicans fear that individual rights may be compromised.

Revelations last month about Bush's program of warrantless electronic surveillance of conversations between the United States and foreign countries have heightened interest in the trade-offs involved in the fight against terrorism. After the attacks of Sept. 11, 2001, the president authorized a program that overrode requirements that the government seek approval of the Foreign Intelligence Surveillance Court before listening in on overseas telephone conversations or reading U.S. citizens' e-mail.

Critics have accused the administration of breaking the law in pursuing the domestic spying program, but the president has defended it, saying that it is necessary to protect Americans and that it is lawful and consistent with the Constitution. Congress has signaled its intention to hold hearings to investigate the program.

So far, recent disclosures about domestic spying have not hurt Bush's public standing. According to the poll, his job approval rating stands at 46 percent, down one percentage point from last month.

Most Americans said they have paid close attention to the controversy over the program, and a bare majority of those surveyed, 51 percent, said it is an acceptable way to fight terrorism, while 47 percent said it is not. Beneath those overall findings, however, were sharp partisan divisions.

Among Republicans, 75 percent said the Bush program is acceptable, while 61 percent of Democrats said it is unacceptable. Independents called the program unacceptable by a margin of 55 percent to 45 percent.

More generally, two in three Americans said it is more important to investigate possible terrorist threats than to protect civil liberties. One-third said the respect for privacy should take precedence.

Republicans overwhelmingly favored aggressive investigation, with more than four in five saying that is their preference, while Democrats were split 51 percent to 47 percent on which should take precedence. Independents favored relatively unfettered pursuit of possible terrorism by nearly 2 to 1.

Democrats and Republicans were at odds over how Bush is striking the balance between counterterrorism and privacy protection. Two in three Republicans said they worried that concerns about rights would stop the president from being aggressive enough, while three in five Democrats worried that he would compromise rights.

Similarly, Republicans were less likely than Democrats and independents to say that federal agencies are trampling on civil liberties. Even among the 50 percent of Republicans who said they believe such actions were taking place, few said the intrusions are unjustified.

The poll found Americans divided over how the federal government is dealing with protecting the rights of both citizens and suspected terrorists in the post-Sept. 11 environment.

A plurality said they believe the government has struck the right balance in protecting rights. But a sizable percentage, about four in 10 in each case, said the government is not doing enough.

A total of 1,001 randomly selected adults were interviewed Jan. 5 to 8 for this survey. The margin of sampling error for the overall results is plus or minus three percentage points.

Polling director Richard Morin contributed to this report.

http://www.washingtonpost.com/wp-dyn/conte...1001192_pf.html

Is Uncle Sam Reading Your Mail?

U.S. officials can open personal mail arriving from abroad

By Reuters

"Customs and Border Protection is charged with making sure that terrorists and terrorists' weapons don't enter the country," said Suzanne Trevino, a spokeswoman for the customs agency, which is part of the Department of Homeland Security.
http://www.informationclearinghouse.info/article11510.htm

There is a letter to the editor printed in the Boston Globe today (January 10th, 2006)(Page A14) by Evan Meinders of Moline, Illinois that reads as follows:

Every Republican who wants to defend President George Bush's secret spying on American citizens should be forced to utter the sentence: "I would not hesitate to see President Hilary Clinton have the same authority."

Haven't you heard? The Republicans are doing this assuming that they have taken power permanently.

National Security Agency mounted massive spy op on Baltimore peace group, documents show
Kevin Zeese
Published: January 10, 2006
The National Security Agency has been spying on a Baltimore anti-war group, according to documents released during litigation, going so far as to document the inflating of protesters' balloons, and intended to deploy units trained to detect weapons of mass destruction, RAW STORY has learned.

According to the documents, the Pledge of Resistance-Baltimore, a Quaker-linked peace group, has been monitored by the NSA working with the Baltimore Intelligence Unit of the Baltimore City Police Department.

The documents came as a result of litigation in the August 2003 trial of Marilyn Carlisle and Cindy Farquhar. An NSA security official provided the defendants with a redacted Action Plan and a redacted copy of a Joint Terrorism Task Force email about the activities of the Pledge of Resistance activities.

The NSA, established in 1952 by President Truman, is the largest and most secret of U.S. intelligence agencies. Headquartered between Baltimore and Washington, DC, the agency has two principal functions: to protect U.S. government communications and intercept foreign transmissions. However, the NSA's United States Signals Intelligence Directive 18 strictly prohibits the interception or collection of information about "U.S. persons, entities, corporations or organizations" without explicit written permission from the Attorney General.

The revelation that a Baltimore peace group was spied upon comes in the wake of a news reports that the agency has also been eavesdropping on Americans' international calls and raises new questions about the legality of NSA activities. The agency did not immediately return a request for comment.

The Baltimore Pledge of Resistance is part of the national Iraq Pledge of Resistance, which works with the Baltimore Emergency Response Network and the American Friends Service Committee (AFSC) -- part of a national group committed to nonviolent civil resistance to stop the war in Iraq. The Pledge lobbies Maryland congressmembers via letters, phone calls, faxes, emails and face-to-face meetings; members of the group are periodically arrested for peaceable protests.

Documents turned over by the NSA indicate that the group was closely monitored. In one instance, the agency filed reports approximately every 15 minutes from 9:30 AM to 3:18 PM on the day of a demonstration at the National Vigilance Airplane Memorial on the NSA Campus in Maryland.

According to an NSA email dated July 4, 2004, the agency collected license numbers and descriptions and the number of people in each car and filed a report about them gathering in a church parking lot for the demonstration. NSA agents also logged their travel to the demonstration, including stopping as a gas station along the way. A canine dog unit was used to search a minivan when it was stopped on the way to the demonstration - nothing was found.

NSA officials even reported on the balloons being inflated for the demonstration and the content of their signs.

An entry made at 1300 hours on July 4. reads, "The Soc. was advised the protestors were proceeding to the airplane memorial with three helium balloons attached to a banner that stated, 'Those Who Exchange Freedom for Security Deserve Neither, Will Ultimately Lose Both.'"

On the day of the demonstration three protesters were cited for "disturbances on government property" and released. A federal judge eventually dismissed the case before trial.

Two of those demonstrators, Max Obuszewiski and Ellen Barfield, are still scheduled for trial in Baltimore federal court Jan. 25. The defendants have filed a motion for discovery and included the letter from the NSA acknowledging spying on the Pledge. The prosecutor has refused to release this information as part of discovery. The defendants plan to argue that the information is necessary for their defense.

"The NSA confirmed, because of a FOIA request I filed, that indeed it has files on peace and justice groups," Obuszewiski said. "However, the Agency is refusing to release the information unless I pay $1,915. What might be in these files?"

A second NSA document on the letterhead of the National Security Agency Police and authored by NSA Police Major Michael E. Talbert is dated Oct. 3, 2004. It is an action plan for the "threat of a demonstration hosted by a group known as Pledge of Resistance - Baltimore." They note the demonstration is part of the "Keep Space for Peace Week." The NSA action plan includes plans for four days, but six activities being planned by the NSA before the day of the demonstration have been redacted.

Extensive plans are described for the day of the Oct. 4, 2004 demonstration. The letter shows that the NSA planned to have their Weapons of Mass Destruction Rapid Response Team on site, an officer with a shotgun, an increase in the number of officers, mobile units monitoring the highway and parking lot, roving patrols on bicycles in various areas, four K9 handlers, agents to provide counter-surveillance, aerial observations by the Anne Arundel, Maryland police and photography/video surveillance of the activities.

"The NSA Weapons of Mass Destruction Rapid Response Team will have a limited staffing on hand to support the event," Talbert's memo reads. "...Anne Arundel County Police will be requested to provide aerial observations."

"Shocking appalling and unnecessary," is how the Chair of the DC Chapter of the National Lawyer's Guild Demonstration Support Committee Mark Goldstone describes the NSA actions. Goldstone, who often represents activists who engage in non-violent civil disobedience, is not counsel in this litigation. "This surveillance is completely unrelated to even an expansive definition of 'national security.'"

Maria Allwine, a protester arrested Oct. 4, 2004, recently described the events in an interview on Democracy Rising.

"The NSA must be spying on us from the federal post office right across a small street from the AFSC," Allwine said. "It's the only place that gives them enough of a view to see our cars/license plate numbers."

Allwine also discussed how the Pledge has been infiltrated. She described a March 20, 2003 demonstration in downtown Baltimore where "a provocateur (whom we had identified at our planning meeting the previous night) joined us. We'd never seen him before. . . during the die-in at the federal courthouse, he was taunting the police in a violent manner. We had to quiet him down, he then disappeared and we never saw him again - and, of course, he wasn't arrested with the other 49 of us."

The monitoring is ongoing. Allwine says that at demonstrations the police "have had cookies and drinks set up for us (we don't partake!) and tell us they knew we were coming."

Goldstone says the impact of NSA surveillance is worrisome.

"People should not be afraid to speak out, and unfortunately evidence of domestic spying tends to chill people's interest in speaking out- thus chilling and limiting our precious First Amendment rights," he told RAW STORY. "Nothing that the Pledge does, either by their public advocacy against the war or their non-violent civil disobedience/resistance to war can be plausibly seen as a threat to United States national security, as the group is pledged to non-violence and non-property destruction guidelines."

David Rocah, a staff attorney with the Maryland ACLU, adds, "There is obviously a well-founded concern of law enforcement monitoring of First Amendment activities. The ACLU and others have exposed such activities all over the country resulting in law suits."

Goldstone says Congress must rein in the NSA.

"Congress must investigate this, and get a handle on the issue of domestic spying by the NSA and other agencies against people exercising political speech," he said.

#
Kevin Zeese is director of Democracy Rising and a candidate for the U.S. Senate in Maryland.
Copyright © 2004-06 Raw Story Media, Inc. All rights reserved. | Site map |Privacy policy

Please go to link to see NSA documents

Bush's Unlikely Co-conspirators

By G. Pascal Zachary, AlterNet. Posted January 10, 2006.


At least seven House Democrats learned about the NSA's secret spying program four years ago. So why didn't anyone blow the whistle? Tools
President Bush deserves plenty of blame for secretly authorizing domestic spying by the National Security Agency. But some of the president's fiercest critics in Congress gave him the political cover to do so. The question why they did so says much about the nation's brittle democracy and how Democrats have covertly joined with Republicans to restore the imperial presidency and effectively remove any checks on the executive branch of the U.S. government.

The domestic spy scandal first looked like another unilateral move by a president bent on doing secretly what he refused to admit publicly. After 9/11, President Bush ordered the National Security Agency to surveil phone calls and emails of Americans in the U.S. In an amazing confession last month, Bush admitted disregarding the law in authorizing the spy program in 2002, opening himself to impeachment charges and NSA officials to criminal indictment.

Underscoring the gravity of the president's actions, last Friday the Congressional Research Service, a nonpartisan research arm of Congress, found that Bush apparently had no authority to bypass Congress in ordering domestic spying, saying in a polite understatement that the legal rationale "does not seem to be as well-grounded."

The congressional report is another blow to Bush's flimsy argument that his spying order is legal. But it is now clear that Bush has a second defense that is more difficult to dismiss: the claim that by briefing selected members of Congress on the program, he essentially sought and gained legislative approval for domestic spying.

Indeed, at least seven Democrats in the House were briefed by the Bush administration on the spy program as far back as four years ago. Among those briefed include Nancy Pelosi, House Democratic leader. Last week, Pelosi released a previously classified letter documenting some of her concerns about NSA spying. The question that went unanswered is why Pelosi -- and the other Democrats, including former South Dakota Sen. Tom Daschle and West Virginia Sen. Jay Rockefeller -- never blew the whistle publicly on the program.

Pelosi, Daschle and Rockefeller each privately expressed dismay over the spying program -- in secret. They didn't go public with their concerns because they were bound by rules governing classified briefings of congressional members. These classified briefings were launched more than 20 years ago as a reform in the oversight of the nation's spy apparatus. But like many other reforms, classified briefings have become perverted and, in the hands of President Bush and Vice President Cheney, have become gags that prevent Congress members from doing their job.

In the mid-1970s, abuses by the CIA and the FBI led to a series of reforms that included the formation of House and Senate oversight committees. Members of these committees received classified briefings on secret operations conducted by the U.S. government. The briefings were seen as a way for Congress to exert some control over the president.

The concept is proving to be flawed, however. As a condition of receiving a classified briefing, the congressional member agrees not to disclose any of the contents. That creates a double bind. The member can object but only privately.

Pelosi got caught in this bind. If she blows the whistle on the spy program, she ran the risk of being stripped of her security clearance -- and sanctioned by the Republican-controlled House. Even worse, she might have betrayed some of her closest political allies, such as the ranking Democrat on the House Intelligence Committee, Jane Harman, who seems to have approved the secret spying program. So Pelosi shut her mouth, kept her grave misgivings private -- and betrayed the American people.

She didn't have to. She could have blown the whistle on the program. Such whistle-blowing is rare but not unprecedented. In 1995, for instance, then-Rep. Robert G. Torricelli, D-N.J., was told by a State Department employee that a paid CIA informant, Guatemalan Col. Julio Roberto Alpirez, was involved in the killing of an American citizen's husband. Then a member of the House Intelligence Committee, Torricelli complained the CIA was doing nothing to uncover the facts of the case for the widow, Jennifer Harbury.

Of course, Alpirez's identity and ties to the CIA were classified; Torricelli revealed them anyway. In March 1995, Torricelli listed Alpirez's name and his connection to the CIA in a letter to President Clinton and gave a copy of the letter to the New York Times. Torricelli was sanctioned for his actions, but they stand as a reminder that members of Congress can blow the whistle on classified briefings in extraordinary circumstances. Bush's domestic spying program qualifies.

Little more than a year ago, President Bush stood for re-election. Didn't the American people deserve to know that he'd authorized a secret domestic spying program? Pelosi opposed Bush, knew about the program -- and didn't say a word. Neither did Rockefeller or Daschle.

The failure of these Democrats to risk personal censure for the greater public good can give the impression there is actually only one political party in the U.S., and that opposition and dissent on issues of security in Washington are only a mirage.

There is a way out of this sorry situation. As the congressional lobbying scandal widens, there will be calls for new rules to limit lobbyist influence over House and Senate members. These new rules are needed. But new rules are also needed over classified briefings. These briefings have failed to limit abuses by the government's spy agencies. They have perversely given political and legal protection to the very people committing illegalities. Congress members need to have the explicit authority to take their concerns to the public when they learn of objectionable, or illegal, spy programs. The president, of course, will counter that he will not give any classified briefings without a prior gag rule on House and Senate members.

Congressional members should challenge the president and end classified briefings, if necessary. These briefings mock the principles of representative government. They should be reformed, or halted.

G. Pascal Zachary is the author of "Endless Frontier: Vannevar Bush, Engineer of the American Century."

« AlterNet Home

Probe Set In NSA Bugging

By Dan Eggen
Washington Post Staff Writer
Wednesday, January 11, 2006; A04



The National Security Agency's inspector general has opened an investigation into eavesdropping without warrants in the United States by the agency authorized by President Bush after the Sept. 11, 2001, attacks, according to a letter released late yesterday.

The Pentagon's acting inspector general, Thomas F. Gimble, wrote that his counterpart at the NSA "is already actively reviewing aspects of that program" and has "considerable expertise in the oversight of electronic surveillance," according to the letter sent to House Democrats who have requested official investigations of the NSA program.

Gimble's letter appears to confirm that an internal investigation into the NSA's domestic eavesdropping program, authorized by Bush in a secret order revealed in recent weeks, is underway. The Justice Department has opened a separate criminal investigation into the leak of the highly classified program's existence.

Officials in NSA Inspector General Joel Brenner's office could not be reached for comment last night.

A group of 39 House Democrats wrote Gimble and other officials last month requesting investigations into the legality of the NSA program. Gimble responded that his office would decline to launch its own investigation because of the ongoing NSA probe.

Another inspector general, Glenn A. Fine of the Justice Department, told the same group of lawmakers in a recent letter that his office does not have jurisdiction. The Democrats responded with a letter to Fine on Monday, arguing that both the inspector general statute and the USA Patriot Act require Fine's office to get involved.

Bush, who has joined his aides in an unusually public defense of the secret program, said last month that "the NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general."

Rep. Zoe Lofgren (D-Calif.) said NSA's inspector general should not be conducting an investigation if the office has played a role in approving the program.

"The inspector general for NSA has repeatedly reviewed this and okayed it, . . . so I don't know how his investigation is going to get a new set of eyes on this," Lofgren said. "How are they going to be able to investigate themselves?"

Justice officials said the request has been referred to the department's Office of Professional Responsibility. As the current attorney general and previous White House counsel, Alberto R. Gonzales played a central role in reviewing the wiretapping effort's legality and has strongly defended it in recent public statements.


Researcher Julie Tate contributed to this report.

New York Times

January 9, 2006
Books of the Times | 'State of War'
Where Spying Starts and Stops: Tracking an Embattled C.I.A. and a President at War

By JAMES BAMFORD
Shortly before Christmas, The New York Times disclosed an enormous domestic spying operation. More revelations followed almost daily, including reports of the National Security Agency's widespread eavesdropping on the phone calls and electronic messages of hundreds, perhaps thousands of American citizens. The justification given was that it was a time of war and that we were facing a ruthless enemy and that rules had to be broken. The public was outraged, and Congress vowed to begin an investigation.

That was three decades ago, in December 1974.

Then, in December 2005, Americans again woke to a New York Times headline about domestic spying. This time the article was written by Eric Lichtblau and James Risen. The operation is also covered in Mr. Risen's new book, "State of War: The Secret History of the C.I.A. and the Bush Administration," published Tuesday. "For the first time since the Watergate-era abuses, the N.S.A. is spying on Americans again, and on a large scale," Mr. Risen writes in his book. "The Bush administration has swept aside nearly 30 years of rules and regulations and has secretly brought the N.S.A. back into the business of domestic espionage."

While Mr. Risen's revelations about the N.S.A. take up only a chapter in "State of War," they are the dramatic high point in an illuminating and disturbing book focusing on the Bush administration's use - and perhaps misuse - of power over the past four years. It is a record, Mr. Risen says, that has even caused protests by Mr. Bush's father, former President George H. W. Bush. Mr. Risen writes of a conversation between the two in 2003 in which the current president "angrily hung up the telephone." "George Herbert Walker Bush," Mr. Risen writes, "was disturbed that his son was allowing Secretary of Defense Donald Rumsfeld and a cadre of neoconservative ideologues to exert broad influence over foreign policy, particularly concerning Iraq."

Among the unanswered questions concerning the domestic spying story is why, if Mr. Risen and The Times had first come upon the explosive information a year earlier, the paper waited until just a few weeks before release of the book to inform its readers. But in the end, the news articles largely scooped the book's N.S.A. chapter, leaving little that had not already been published.

Nevertheless, the book has much more to offer. In looking at the C.I.A.'s possible involvement in torture, Mr. Risen found evidence of "a secret agreement among very senior administration officials to insulate Bush and to give him deniability" regarding the harsh new interrogation tactics. And despite the critical need for intelligence on Iran, Mr. Risen says, a C.I.A. communications officer accidentally sent detailed information to the wrong indigenous agent in Tehran that outlined the agency's entire network. "The Iranian who received the download was actually a double agent," Mr. Risen writes. The mistake enabled the Iranians "to 'roll up' the C.I.A.'s agent network throughout Iran," says Mr. Risen, although the details are disputed by the C.I.A.

But while "State of War" has interesting and important new details, it also has almost no named sources - not even the comments of former intelligence or government officials, who might provide perspective, context and credibility. It is an unusual move for someone writing about such an important subject.

Nevertheless, obtaining details on an eavesdropping program as secret as the one discussed in "State of War" is a monumental job of reporting - especially when it is later confirmed by the president himself.

The book also provides a close look at how George J. Tenet, then the tough-talking, cigar-chomping C.I.A. director, had to decide between the counsel of many of his middle-level analysts and station chiefs who advised caution when it came to Iraq, and the Pentagon's hawks and neoconservatives who were hungry for war. "George Tenet liked to talk about how he was a tough Greek from Queens," Mr. Risen quotes a former Tenet lieutenant as saying. But the former official added that in reality, "he just wanted people to like him."

With regard to Iraq, Mr. Risen writes, it was the hard-line Israelis that Mr. Rumsfeld and his deputy, Paul D. Wolfowitz, were listening to, not the cautious C.I.A. "Israeli intelligence officials frequently traveled to Washington to brief top American officials," he writes, "but C.I.A. analysts were often skeptical of Israeli intelligence reports, knowing that Mossad had very strong - even transparent - biases about the Arab world." After their visits, C.I.A. officials would often discount much of what the Israelis had provided. "Wolfowitz and other conservatives at the Pentagon became enraged by this practice," Mr. Risen writes.

With Mr. Tenet now on their side, and no more roadblocks in the way, Mr. Risen says, the path was clear for the Bush hard-liners to press ahead with their plans for a form of kidnapping known as extraordinary renditions, alleged torture, hidden foreign prisons, widespread N.S.A. eavesdropping and numerous other practices, many of which Mr. Risen outlines in subsequent chapters.

But the N.S.A. is at the heart of "State of War." Founded in 1952, the N.S.A. for many years considered itself above the law, controlled not by federal statutes but by top-secret presidential orders known as National Security Council Intelligence Directives. One directive even said the N.S.A. could disregard the law when it came to its powerful and highly secret form of eavesdropping, known as signals intelligence - a vacuum-cleaner approach that sucks in millions of communications an hour. Later, during the Watergate period, President Richard M. Nixon ordered the N.S.A. to turn its giant ear inward and begin eavesdropping on thousands of Americans, like Vietnam War protesters.

What makes the N.S.A.'s current secret domestic eavesdropping program far more of a threat, in Mr. Risen's view, is the explosion in digital telecommunications. In the 1970's, most written communication took the form of letters dropped in mailboxes, to which the N.S.A. had no access. There were no e-mail messages or cellphones. "Today, industry experts estimate that approximately nine trillion e-mails are sent in the United States each year," Mr. Risen writes. "Americans make nearly a billion cellphone calls and well over a billion landline calls each day."

Remembering the bad old days, a number of officials with knowledge of the new N.S.A. operation told Mr. Risen they were deeply troubled by it and believed "that an investigation should be launched into the way the Bush administration has turned the intelligence community's most powerful tools against the American people." But so far, rather than investigate the possible violations of the Foreign Intelligence Surveillance Act, the Justice Department has opened an investigation into who leaked news of the operation to Mr. Risen.

Faced with similar charges against the N.S.A. 30 years ago, the Justice Department began an extraordinarily secret criminal investigation that lasted more than a year. Although the Justice lawyers uncovered 23 different categories of questionable activities, in the end, because of the extreme secrecy of the agency's activities and the lack of established law, they declined to prosecute. Instead they recommended that Congress explore the creation of new legislation outlawing this type of abuse. A year later, Congress enacted the Foreign Intelligence Surveillance Act.

Now, if it has been violated by the Bush administration, the question is what will happen this time around.

James Bamford is the author of two books on the National Security Agency, "The Puzzle Palace" and "Body of Secrets." His most recent book is "A Pretext for War: 9/11, Iraq and the Abuse of America's Intelligence Agencies."



Copyright 2006 The New York Times Company

http://www.stltoday.com/stltoday/news/stor...+%22Mitchell%22

Strange bedfollows, indeed. Al Gore will give a speech on Monday, after being introduced by Bob Barr.

http://www.libertyspeeches.org/

NSA Whistleblower Alleges Illegal Spying

Former Employee Admits to Being a Source for The New York Times

By BRIAN ROSS


01/10/26 "ABC" — Russell Tice, a longtime insider at the National Security Agency, is now a whistleblower the agency would like to keep quiet.

For 20 years, Tice worked in the shadows as he helped the United States spy on other people's conversations around the world.

"I specialized in what's called special access programs," Tice said of his job. "We called them 'black world' programs and operations."

But now, Tice tells ABC News that some of those secret "black world" operations run by the NSA were operated in ways that he believes violated the law. He is prepared to tell Congress all he knows about the alleged wrongdoing in these programs run by the Defense Department and the NSA in the post-9/11 efforts to go after terrorists.

"The mentality was we need to get these guys, and we're going to do whatever it takes to get them," he said.

Tracking Calls

Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.

"If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing."

According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more.

Tice Admits Being a Source for The New York Times

President Bush has admitted that he gave orders that allowed the NSA to eavesdrop on a small number of Americans without the usual requisite warrants.

But Tice disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.

"That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

The same day The New York Times broke the story of the NSA eavesdropping without warrants, Tice surfaced as a whistleblower in the agency. He told ABC News that he was a source for the Times' reporters. But Tice maintains that his conscience is clear.

"As far as I'm concerned, as long as I don't say anything that's classified, I'm not worried," he said. "We need to clean up the intelligence community. We've had abuses, and they need to be addressed."

The NSA revoked Tice's security clearance in May of last year based on what it called psychological concerns and later dismissed him. Tice calls that bunk and says that's the way the NSA deals with troublemakers and whistleblowers. Today the NSA said it had "no information to provide."

ABC News' Vic Walter and Avni Patel contributed to this report.

Copyright © 2006 ABC News Internet Ventures

From FAIR (Fairness and Accuracy In Reporting):

http://www.fair.org/index.php?page=2798

NSA Whistleblower Alleges Illegal Spying On Millions Of Americans

Former Employee Admits to Being a Source for The New York Times

By BRIAN ROSS

He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.
http://www.informationclearinghouse.info/article11529.htm

January 12, 2006
In Shift, Bush Says He Welcomes Inquiry on Secret Wiretaps
By DAVID E. SANGER
LOUISVILLE, Ky., Jan. 11 - President Bush said Wednesday that he would welcome a Congressional investigation of whether he had the authority to order the National Security Agency to monitor communications in the United States without warrants.

Until now, the White House had opposed public hearings, which are scheduled to begin next month in the Senate. But on Wednesday, answering questions from a friendly crowd in Louisville in a conference center decorated with signs that said "Winning the War on Terror," Mr. Bush appeared ready to make the best of a political necessity.

In his campaign-style meeting, he was repeatedly applauded for authorizing the wiretaps, a decision that some of his political aides said they believed would ultimately help rebuild his approval ratings by demonstrating the lengths to which he would go to prevent another terrorist attack inside the United States.

Asked whether his administration was going to "go after the media" for revealing operations like the domestic wiretapping, Mr. Bush instead defended his decision to authorize the surveillance. "I did so because the enemy still wants to hurt us," he said. "And it seems like to me that if somebody is talking to Al Qaeda, we want to know why."

His order enabled the National Security Agency to monitor the international phone calls and e-mail messages of people in the United States suspected of links to Al Qaeda.

Singling out Americans and others in the United States for such surveillance would normally require a warrant under the Foreign Intelligence Surveillance Act, although the act also allows the attorney general to authorize a wiretap if it is reported to the court within 72 hours.

"Now, I - look, I understand people's concerns about government eavesdropping," Mr. Bush said. "And I share those concerns, as well. So obviously I had to make the difficult decision between balancing civil liberties and, on a limited basis - and I mean limited basis - try to find out the intention of the enemy."

The president never directly addressed the question of why he avoided the existing system, although his legal advisers and intelligence aides have said it was too cumbersome.

"There will be a lot of hearings to talk about that, but that's good for democracy," Mr. Bush said. "Just so long as the hearings, as they explore whether or not I had the prerogative to make the decision I made, doesn't tell the enemy what we're doing. See, that's the danger."

Mr. Bush said some key members of Congress had been briefed on the program several years ago and "we gave them a chance to express their disapproval or approval," brushing past the claims of some Democrats that their questions about the program's legality were never resolved.

The president's statement that he was willing to see public hearings go forward was a change from his stance at a news conference at the White House just before Christmas. At the time, he said, "Any public hearings on programs will say to the enemy, 'Here's what they do - adjust.' "

Senator Arlen Specter, a Pennsylvania Republican and the chairman of the Senate Judiciary Committee, has scheduled open hearings, and the Senate Intelligence Committee has said it plans closed hearings.

The president's legal justification for the N.S.A. program has gotten mixed reviews, ranging from enthusiastic to skeptical to scathing.

This week, Representative Jane Harman of California, the top Democrat on the House Intelligence Committee, released a 14-page legal analysis she had requested from a former C.I.A. general counsel, Jeffrey H. Smith, now a Washington lawyer.

Although recognizing the president's assertion that his power as commander in chief justifies warrantless surveillance, Mr. Smith called that case "weak" in light of the language and documented purpose of the Foreign Intelligence Surveillance Act of 1978, which requires warrants.

Mr. Smith also wrote that the Congressional resolution authorizing military force against those who carried out the Sept. 11, 2001, terrorist attacks "does not, in my view, justify warrantless electronic surveillance of United States persons in the United States."

"The president was correct in concluding that many of our laws were not adequate to deal with this new threat," Mr. Smith wrote. "He was wrong, however, to conclude that he is therefore free to follow the laws he agrees with and ignore those with which he disagrees."

Scott Shane contributed reporting from Washington for this article.



Copyright 2006The New York Times Company

Bush Again Defends Wiretapping Program
Departing From Usual Practice, President Fields Questions at Town-Hall-Style Event

By Michael A. Fletcher
Washington Post Staff Writer
Thursday, January 12, 2006; Page A07

LOUISVILLE, Jan. 11 -- President Bush on Wednesday defended his decision to allow government eavesdropping on the phone calls and e-mails of suspected terrorist collaborators in the United States, saying the program is legal and is essential to averting potential attacks.

"I understand people's concerns about government eavesdropping," Bush said in response to a question about the program during a citizens forum here. "I share their concerns as well." Even so, he added, the program is important to his duty to protect Americans.



President Bush delivers a speech about the war on terror on Tuesday, Jan. 10, 2006 in Washington. Bush highlighted progress in fashioning a democracy in Iraq, rebuilding the economy and training Iraqi forces to take over responsibility for the country's security from American military personnel. (AP Photo/Evan Vucci) (Evan Vucci - AP)

Bush's comments on the eavesdropping program came in response to a question posed during a campaign-style event here aimed at shoring up support for the war in Iraq as well as the nation's broader anti-terrorism effort.

The president's forum here was different than most of the events he attends nationwide. Usually he speaks to carefully screened partisan audiences and takes no questions. White House aides described Wednesday's audience of business and community leaders as bipartisan, and Bush opened himself to unscripted questions during the town-hall-style event.

The domestic spying program has drawn fire from members of Congress, both Democrats and Republicans, who think it oversteps the president's authority and violates civil liberties that are part of the nation's fiber. The National Security Agency program began in the aftermath of the Sept. 11, 2001, terrorist attacks as a way to help the nation's intelligence agencies gather information about any future attacks.

The program authorizes the NSA to screen the international e-mails and phone calls of people in the United States with suspected terrorism ties without first obtaining a court order. Bush said that congressional leaders have been briefed on it and have been given the opportunity "to express their approval or disapproval."

Some Democrats, however, have complained that the classified briefings amounted to one-way conversations in which the administration simply told them about the program but left no means to protest it.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) has announced plans to hold hearings on the spying program. Bush said he welcomes the inquiry, calling it "good for democracy." He added, however, that the hearings run the danger of telling "the enemy what we're doing."

In a statement released after Bush's remarks, Democratic National Committee Chairman Howard Dean said that rather than protect the nation, Bush's program may compromise efforts to fight terrorism by resulting in hundreds of cases against suspected terrorists being thrown out of court.

"President Bush's decision to sidestep the rule of law and spy on Americans without a court order may have dealt a serious blow to our ability to fight and win the war on terror," Dean said.

The president sounded now-familiar themes about the war in Iraq. Although insurgents there continue to sow havoc and death with almost daily bombings and other attacks, Bush said steady progress is being made toward success.

Also, with the war sure to be a major issue during the upcoming midterm elections, Bush again warned Democratic critics of the war not to allow their critiques to undermine the morale of troops whose lives are on the line.

"I can understand people being abhorrent about war. War is terrible," Bush said. "But one way people can help as we're coming down the pike in the 2006 elections, is remember the effect that rhetoric can have on our troops in harm's way, and the effect that rhetoric can have in emboldening or weakening an enemy."

Earlier this week, Senate Minority Leader Harry M. Reid (D-Nev.) and Sen. Jack Reed (D-R.I.) charged that Bush has "used our troops as a shield against legitimate criticism of his Iraq war policy."

Democrats to hold own hearings on warrantless wiretaps
John Byrne
Published: January 10, 2006

Reps. John Conyers, Jr. (D-MI), Bobby Scott (D-VA) and Chris Van Hollen (D-MD) will hold a Democratic hearing next Friday to consider the legal ramifications of President Bush's warrantless surveillance on international calls, RAW STORY has learned.

The Jan. 20 Democratic hearings come in the wake of a request from House Judiciary Committee Democrats to hold official Congressional hearings on the matter. The Republican chairman, Rep. F. James Sensenbrenner (R-WI), has not responded to Democrats' requests.

In the Senate, Judiciary Committee Chairman Arlen Specter (R-PA) said he would hold hearings on the taps, but has not officially scheduled a session.

Conyers, the ranking Democrat on the Judiciary Committee, said he felt the need to hold his own hearings after his Republican counterpart demurred.

"Last month all 17 House Judiciary Democrats called on Chairman Sensenbrenner to convene hearings to investigate the President's use of the National Security Agency to conduct surveillance involving U.S. citizens on U.S. soil, in apparent contravention of the Foreign Intelligence Surveillance Act," Conyers said in a statement. "As our request has since been ignored, it is our job, as Members of Congress, to review the program and consider whether our criminal laws have been violated and our citizen's constitutional rights trampled upon.

"We simply cannot tolerate a situation where the Administration is operating as prosecutor, judge and jury and excluding Congress and the courts from providing any meaningful check or balance to the process," he added.

Conyers and Sensenbrenner have tangled on several occasions, most notably when Sensenbrenner ordered that a microphone be turned off for a Democratic congressman during a meeting on the Patriot Act. Sensenbrenner, outraged that Democrats were using time dedicated to discussion of the Act to talk about detainee treatment, walked out of the hearing.

Conyers also released a letter from Harvard University constitutional law professor Lawrence Tribe, who asserted that the NSA program was illegal and violated the separation of powers provision under the constitution.

"The technical term for [the Bush Administration's legal arguments] I believe is poppycock," Tribe said. RAW STORY hopes to post Tribe's letter soon.

Those attending Conyers' hearing include: former Reagan Associate Deputy Attorney General Bruce Fein, George Washington Law School Professor Jonathon Turley, former CIA General Counsel Jeff Smith and Caroline Frederickson from the American Civil Liberties Union.

House Judiciary Democrats held their last party-line hearing on the Downing Street Memos, minutes of a conversation between British intelligence and Bush Administration officials which quoted the Director of British Intelligence MI6 director Richard Dearlove as saying the intelligence was being "fixed" around a policy to attack Iraq.
Copyright © 2004-06 Raw Story Media, Inc. All rights reserved.

You're being watched ...
Efforts to collect data on Americans go far beyond the NSA's domestic spying program.

By Laura K. Donohue
CONGRESS WILL soon hold hearings on the National Security Agency's domestic spying program, secretly authorized by President Bush in 2002. But that program is just the tip of the iceberg.

Since 9/11, the expansion of efforts to gather and analyze information on U.S. citizens is nothing short of staggering. The government collects vast troves of data, including consumer credit histories and medical and travel records. Databases track Americans' networks of friends, family and associates, not just to identify who is a terrorist but to try to predict who might become one.

ADVERTISEMENT

Remember Total Information Awareness, retired Adm. John Poindexter's effort to harness all government and commercial databases to preempt national security threats? The idea was that disparate, seemingly mundane behaviors can reveal criminal intent when viewed together. More disturbing, it assumed that deviance from social norms can be an early indicator of terrorism. Congress killed that program in 2003, but according to the Associated Press, many related projects continued.

The Defense Advanced Research Projects Agency runs a data-mining program called Evidence Extraction and Link Discovery, which connects pieces of information from vast amounts of data sources. The Defense Intelligence Agency trawls intelligence records and the Internet to identify Americans connected to foreign terrorists. The CIA reportedly runs Quantum Leap, which gathers personal information on individuals from private and public sources. In 2002, Congress authorized $500 million for the Homeland Security Department to develop "data mining and other advanced analytical tools." In 2004, the General Accounting Office surveyed 128 federal departments and agencies to determine the extent of data mining. It found 199 operations, 14 of which related to counterterrorism.

What type of information could these mine? Your tax, education, vehicle, criminal and welfare records for starters. But also other digital data, such as your travel, medical and insurance records — and DNA tests. Section 505 of the Patriot Act (innocuously titled "Miscellaneous National Security Authorities") extends the type of information the government can obtain without a warrant to include credit card records, bank account numbers and information on Internet use.

Your checking account may tell which charities or political causes you support. Your credit card statements show where you shop, and your supermarket frequent-buyer-card records may indicate whether you keep kosher or follow an Islamic halal diet. Internet searches record your interests, down to what, exactly, you read. Faith forums or chat rooms offer a window into your thoughts and beliefs. E-mail and telephone conversations contain intimate details of your life.

A University of Illinois study found that in the 12 months following 9/11, federal agents made at least 545 visits to libraries to obtain information about patrons. This isn't just data surveillance. It's psychological surveillance.

Many Americans might approve of data mining to find terrorists. But not all of the inquiries necessarily relate to terrorism. The Patriot Act allows law enforcement officers to get "sneak and peek" warrants to search a home for any suspected crime — and to wait months or even years to tell the owner they were there. Last July, the Justice Department told the House Judiciary Committee that only 12% of the 153 "sneak and peek" warrants it received were related to terrorism investigations.

The FBI has used Patriot Act powers to break into a judge's chambers and to procure records from medical clinics. Documents obtained by the American Civil Liberties Union recently revealed that the FBI used other new powers to eavesdrop on environmental, political and religious organizations.

When Congress looks into domestic spying in the "war on terror," it should ask a series of questions:

First, what information, exactly, is being collected? Are other programs besides the president's NSA initiative ignoring traditional warrant requirements? Are federal agencies dodging weak privacy laws by outsourcing the job to private contractors?

Second, who has access to the data once it is collected, and what legal restrictions are set on how it can be used or shared?

Third, who authorized data mining, and is its use restricted to identifying terrorists?

Fourth, what is the collective effect of these programs on citizens' rights? Privacy certainly suffers, but as individuals begin to feel inhibited in what they say and do, free speech and freedom of assembly also erode.

Fifth, how do these data collection and mining operations deal with error? As anyone who's tried to dispute an erroneous credit report can attest, once computer networks exchange data, it may be difficult to verify its accuracy or where it entered the system. Citizens who do not know they are under surveillance cannot challenge inaccurate information that may become part of their secret digital dossier.

What will Congress do to ensure that the innocent remain so? br>

--------------------------------------------------------------------------------

LAURA K. DONOHUE is a fellow at Stanford University's Center for International Security and Cooperation and author of the forthcoming "Counterterrorism and the Death of Liberalism" (Cambridge University Press).

http://rawstory.com/news/2005/Former_CIA_g...House_0112.html


Former CIA general counsel tells House Intelligence Bush didn't have wiretap authority
RAW STORY
Published: January 12, 2006

Former CIA general counsel Jeff Smith has issued a memo to the House Intelligence Committee concluding that Authority for Use of Military Force did not give President George W. Bush the right to order domestic wiretaps without a court order.

In the memo, Smith discusses court precedent, as well as civil liberties outlined in the Fourth Amendment to the U.S. Constitution.

Smith further concludes that Bush's secondary argument, that he has authority under the constitution to order such wiretaps, is "seriously undermined" by the Foreign Intelligence Surveillance Act of 1978, which allows for similar surveillance only with a warrant. He further characterizes a president's constitutional power while acting against an existing statute as being at its "lowest ebb".


The 14-page memo can be read in its entirety here.http://www.rawstory.com/exclusives/nsaspymemo.pdf


Smith is scheduled to attend Democrat-led hearings on NSA warrantless surveillance hearings later this month.

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The Congressional Research Service and Constitutional Law Scholars Weigh in on President Bush's Authorization of Warrantless Surveillance:
Why This Controversy Bridges the Partisan Divide, At Least Among Experts
By ELAINE CASSEL
----
Thursday, Jan. 12, 2006

On December 16, 2005, the New York Times had a riveting page one headline: "Bush Lets U.S. Spy on Callers without the Courts." The article reported that, in 2002, President Bush signed an executive order directing the National Security Agency (NSA) to listen in on overseas phone calls to and from the United States - without approval from any court, even the Foreign Intelligence Surveillance Act (FISA) Court.



After first refusing to discuss the report, President Bush went on the offensive - even threatening those who exposed the program with investigation. (The Times had held the story for more than a year, for reasons yet not fully explained).

It turns out that only eight members of Congress knew of the program. They were told shortly after it began in 2002, and they were, literally, sworn to secrecy. Congress as a whole was neither consulted nor asked to amend FISA to allow the surveillance the President wanted - even though it had overwhelmingly passed the USA Patriot Act after September 11.

In a December 22, 2005 letter to Congress, Assistant Attorney General William Moschella tried to defend Bush's actions to the literally hundreds of members who were left out of the loop. He contended that the legal foundation for the surveillance program derived from Congress's September 18, 2001 Authorization to Use Military Force in Afghanistan (AUMF); the President's inherent powers as Commander-in-Chief during "wartime"; and historical precedent for more liberally interpreting the Fourth Amendment's reasonableness requirement for warrantless searches in "wartime."

Meanwhile, the President's approval rating has dropped only a point - from his pre-Times article rating of 47 percent. And public opinion on the issue has so far followed a roughly partisan divide. In a Washington Post-ABC News poll of 1,001 randomly selected adults, reported on January 11, 75 percent of Republicans thought the program was acceptable, while 61 percent of Democrats said it was not.

On January 5, the non-partisan Congressional Research Service (CRS) released its own report on the controversy. And on January 9, fourteen top constitutional law experts and former government officials - among them, prominent conservatives -- sent a letter to Congressional leaders directly responding the December 22 DOJ letter.

Both the CRS and the legal experts' analyses definitively rebut the Administration's December 22 defense of its actions. And even Bush Supreme Court nominee Samuel Alito, when asked in his confirmation hearings whether the president is above the law, answered with a definite "no."

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In this column, I will discuss these sources in arguing that this domestic surveillance program isn't a partisan issue; the law is quite clear .

The Congressional Research Service Report

The CRS report, undertaken at the request of some members of Congress, does not come out and flatly say that there was no legal basis for the secret spy program, because the full details of the program are not yet known. However, it directly rebuts the Administration's claims, in its December 22 letter, as to why it had to engage in secret surveillance.

The Administration's main excuse was that FISA -- enacted in 1978, as a direct response to former President Nixon's illegal wiretapping of his political "enemies" -- is too outdated, too slow, and too cumbersome to deal with the "new threat" posed by this "new" kind of enemy and new kind of "war."

But then, why not ask Congress to amend FISA? Acting outside FISA, the CRS report pointed out, is illegal: FISA itself says that "procedures in this chapter . . . shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted."

What about the argument that the President has the power simply to disregard FISA if he so chooses? The CRS outright rejected the claim that there is constitutional authority for plenary presidential surveillance in derogation of Congressional statutes clearly to the contrary. And it points out that FISA is, indeed, directly to the contrary: Its legislative history of FISA and amendments indicate clearly that the "exclusive means" language was inserted to precisely to counter any claim that the President has inherent Executive authority to order surveillance of Americans without complying with FISA.

Finally, the CRS report effectively refutes the Administration's claims that FISA is too slow or cumbersome to be effective in current times. It explains how, under FISA, surveillance can begin prior to receipt of a warrant. (It is also done in secret, without notice to the target.) And it points out that if the President nevertheless feared that FISA warrants would take too long or might somehow "tip off" targets of surveillance, he had only to ask Congress for changes to the law.

Legal Scholars Appeal to the Congress

The legal experts' conclusions are strikingly similar to those of the CRS report: They characterize the Bush administration's defense of its NSA domestic spying program as lacking "any plausible legal authority."

The signers - listed in the letter -- include the nation's leading constitutional law scholars, many of them former Justice Department attorneys and presidential advisors, and even a former FBI Director and federal judge.

The experts' letter refutes Administration claims that the AUMF and Article II of the Constitution, which includes the "Commander-in-Chief" language, give Bush the authority to disregard FISA and violate the Fourth Amendment. The letter agrees with the CRS report that Bush should have asked the Congress for changes to existing law, rather than proceeding unilaterally - and illegally. And it ends with a stinging admonition: "[T]he President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

The Upcoming Congressional Hearings Are Not Merely a Partisan Clash

Senator Arlen Specter recently repeated his promise to conduct hearings on the surveillance program after the Alito hearings conclude, and his plan has bipartisan support. Even the President himself said, on January 11, that the hearings will be "good for democracy," as long as they don't give away "secrets" to the enemy. And reportedly, an NSA whistleblower has come forward offering to testify.

What should we demand from the hearings? Some will be cloaked in secrecy, no doubt. But the public deserves to know who the targets are, what is being done with the information, and how widespread the program is - especially since the Times, in several follow-up stories, has suggested that the surveillance is far more widespread than the Administration admitted in its December 22 letter.

The disclosure of this illegal surveillance program is but one of the many ways in which President Bush, unbeknownst to most Americans, and even the Congress, has carried out his avowed goal (and one frequently touted by Vice-President Cheney) to "restore" the presidency to its stronger, pre-Watergate phase. That's code for creating an executive branch that only obeys the laws it likes--and ignores the rest.

President Bush has said as much in the "signing statements" appended to many laws. With one hand, he signs into law the statutes passed by the our ele