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CIA covert action program biggest since Cold War
Bush authorized all-out effort against al Qaeda after 9/11
- Dana Priest, Washington Post
Friday, December 30, 2005


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

The broad-based effort, known within the agency by the initials GST, is compartmentalized into dozens of highly classified individual programs, details of which are known mainly to those directly involved.

GST includes programs allowing the CIA to capture al Qaeda suspects with help from foreign intelligence services, to maintain secret prisons abroad, to use interrogation techniques that some lawyers say violate international treaties and to maintain a fleet of aircraft to move detainees around the globe. Other compartments within GST give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world.

Over the past two years, as aspects of this umbrella effort have burst into public view, the revelations have prompted protests and official investigations in countries that work with the United States, as well as condemnation by international human rights activists and criticism by members of Congress.

Still, virtually all the programs continue to operate largely as they were set up, according to current and former officials. These sources say Bush's personal commitment to maintaining the GST program and his belief in its legality have been key to resisting any pressure to change course.

"In the past, presidents set up buffers to distance themselves from covert action," said A. John Radsan, assistant general counsel at the CIA from 2002 to 2004. "But this president, who is breaking down the boundaries between covert action and conventional war, seems to relish the secret findings and the dirty details of operations."

The administration's decisions to rely on a small circle of lawyers for legal interpretations that justify the CIA's covert programs and not to consult widely with Congress on them have also helped insulate the efforts from the growing furor, said several sources who have been involved.

Bush has never publicly confirmed the existence of a covert program, but he was recently forced to defend the approach in general terms, citing his wartime responsibilities to protect the nation. In November, responding to questions about the CIA's clandestine prisons, he said the nation must defend against an enemy that "lurks and plots and plans and wants to hurt America again."

This month he went into more detail, defending the National Security Agency's warrantless eavesdropping within the United States. That program is separate from the GST program, but three lawyers involved said the legal rationale for the NSA program was essentially the same one used to support GST, which is an abbreviation of a classified code name for the umbrella covert action program.

The administration contends that it is still acting in self-defense after the Sept. 11 attacks, that the battlefield is worldwide and that everything it has approved is consistent with the demands made by Congress on Sept. 14, 2001, when it passed a resolution authorizing "all necessary and appropriate force against those nations, organizations, or persons (the president) determines planned, authorized, committed, or aided the terrorist attacks."

"Everything is done in the name of self-defense, so they can do anything because nothing is forbidden in the War Powers Act," said one official who was briefed on the CIA's original cover program and who is skeptical of its legal underpinnings. "It's an amazing legal justification that allows them to do anything," said the official, who like others spoke on the condition of anonymity because of the sensitivity of the issues.

The interpretation undergirds the administration's determination not to waver under public protest or the threat of legislative action. For example, after the Washington Post disclosed the existence of secret prisons in several Eastern European democracies, the CIA closed them down because of an uproar in Europe. But the detainees were moved elsewhere to similar CIA prisons, referred to as "black sites" in classified documents.

The CIA has stuck with its overall approaches, defending and in some cases refining them. The agency is working to establish procedures in the event a prisoner dies in custody. One proposal circulating among mid-level officers calls for rushing in a CIA pathologist to perform an autopsy and then quickly burning the body, according to two sources.

In June, the CIA temporarily suspended its interrogation program after a controversy over disclosure of an Aug. 1, 2002, memorandum from the Justice Department's Office of Legal Counsel that defined torture in an unconventional way. The White House withdrew and replaced the memo. But the hold on the CIA's interrogation activities was eventually removed, several intelligence officials said.

The authorized techniques include "waterboarding" and "water dousing," both meant to make prisoners think they are drowning; hard slapping; isolation; sleep deprivation; liquid diets; and stress positions -- often used, intelligence officials say, in combination to enhance the effect.

Behind the scenes, CIA Director Porter Goss -- until last year the Republican chairman of the House intelligence committee -- has gathered ammunition to defend the program.

After a CIA inspector general's report in the spring of 2004 found that some authorized interrogation techniques violated international law, Goss asked two national security experts to study the program's effectiveness.

Gardner Peckham, an adviser to former House Speaker Newt Gingrich, R-Ga., concluded that the interrogation techniques had been effective, said an intelligence official familiar with the result. John Hamre, deputy defense secretary under President Bill Clinton, offered a more ambiguous conclusion. Both declined to comment.

The only apparent roadblock that could yet prompt significant change in the CIA's approach is a law passed this month prohibiting torture and cruel and inhumane treatment of prisoners in U.S. custody, including in CIA hands.

It is still unclear how the law, sponsored by Sen. John McCain, R-Ariz., will be implemented. But two intelligence experts said the CIA would be required to draw up clear guidelines and to get all special interrogation techniques approved by a wider range of government lawyers who hold a more conventional interpretation of international treaty obligations.

"The executive branch will not pull back unless it has to," said a former Justice Department lawyer involved in the initial discussions on executive power. "Because if it pulls back unilaterally, and another attack occurs, it will get blamed."

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URL: http://sfgate.com/cgi-bin/article.cgi?file...MNGVDGF5S91.DTL

http://www.redherring.com/Article.aspx?a=1...rnetAndServices

White House Crumbles a Cookie

White House denies security specialist's claim that its web site issues cookies in possible violation of government policy.
December 30, 2005

The White House on Friday denied allegations by an Internet security specialist that it issues legally dubious cookies to the computers of web surfers who visit its web site.

The charge came from Richard M. Smith, a Cambridge, Massachusetts-based software security specialist, who also has reported that National Security Agency web software is serving long-term cookies to surfers’ computers (see NSA Caught Serving Cookies).

Since his report on the NSA, Mr. Smith and the Associated Press have taken off on a kind of “doorknob-testing” mission to discover which arms of the U.S. government may not be living up to the rules and regulations pertaining to the use of cookies.

On Thursday, Mr. Smith and the AP informed the White House that its web site has been issuing cookies in a manner that most likely contravened an Office of Management and Budget ban on the use of such technology. The White House agreed to investigate the matter.

On Friday afternoon, David Almacy, the White House Internet director, said Mr. Smith's claims were "entirely false." He blamed the software being used by Mr. Smith, which is called a packet-sniffer, for misidentifying cookies that originated from Web Trends, a web analytics firm that serves as a contractor to the White House site.

"What was happening was that users that visited other WebTrends sites picked up WebTrends cookies from other sites," he said.

Neither Mr. Smith nor the investigators for the AP could be reached immediately to comment on the White House's response.

According to Mr. Almacy, Mr. Smith's software "assumed that because we use WebTrends, our site placed the cookies on his hard drive."

He said that if visitors delete the WebTrends cookies from their hard drive, and then visit the White House site, they would find no cookies. RedHerring.com confirmed that was true as of Friday afternoon.

A spokesman for WebTrends, based in Portland, Oregon, affirmed Mr. Almacy's account.

Cookie Monsters

Cookies are small files placed on computers by web programs residing on sites visited by those computers. They were originally designed to hold identifying information to make web surfing easier and faster.

Today cookies are used to store all kinds of information, including the content of a web surfer’s electronic shopping cart. Many web surfers are concerned about the lack of privacy involved in the surreptitious placement of cookies on their computer hard drives.

They are helpful, for the most part, but they carry the potential for abuse because they can monitor and document the activities of web surfers.



© 1993-2005 Red Herring, Inc. All rights reserved.

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December 31, 2005
Criminal Inquiry Opens Into Spying Leak
By SCOTT SHANE
WASHINGTON, Dec. 30 - The Justice Department said on Friday that it had opened a criminal investigation into the disclosure of classified information about a secret National Security Agency program under which President Bush authorized eavesdropping on people in the United States without court warrants.

The investigation began in recent days after a formal referral from the security agency regarding the leak, federal officials said, speaking on the condition of anonymity because of the secrecy of the investigation.

The program, whose existence was revealed in an article in The New York Times on Dec. 16, has provoked sharp criticism from civil liberties groups, some members of Congress and some former intelligence officials who believe that it circumvents the law governing national security eavesdropping.

President Bush and Attorney General Alberto R. Gonzales have vigorously defended the program as a legal, critical defense against terrorism that has helped prevent attacks in this country. They say Mr. Bush's executive order authorizing the program is constitutional as part of his powers as commander in chief and under the resolution passed by Congress days after the attacks of Sept. 11, 2001. That resolution authorized the use of force against terrorists.

The White House said on Friday that it had played no role in the Justice Department's decision. But in Crawford, Tex., where Mr. Bush has been all week, a spokesman was sent to talk to reporters with a prepared statement about the decision.

"The leaking of classified information is a serious issue," said the spokesman, Trent Duffy.

"The fact is that Al Qaeda's playbook is not printed on Page 1, and when America's is, it has serious ramifications. You don't need to be Sun Tzu to understand that," he said, referring to the Chinese warrior who wrote "The Art of War."

The president last week denounced in strong language the leaking of information about the agency's program, saying: "My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

Privacy advocates on Friday said the leak investigation should be set aside, at least for now, in favor of an investigation of the warrantless eavesdropping itself.

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

Marc Rotenberg, the executive director of the Electronic Privacy Information Center in Washington, said his group believed "the priority at this point for the Department of Justice should be the appointment of an independent prosecutor to determine whether federal wiretap laws were violated" by the security agency program, not the leak inquiry.

The administration has been sensitive about leaks of closely held information, classified or not, and the Justice Department is also investigating the recent disclosure by The Washington Post that the Central Intelligence Agency operated secret prisons for terrorist suspects in Eastern Europe.

But the most prominent leak investigation during President Bush's five years in office has been the one conducted by Patrick J. Fitzgerald, an independent prosecutor, into the disclosure in 2003 of the secret C.I.A. employment of Valerie Wilson, a covert agency officer. That inquiry resulted in the indictment in October for perjury and obstruction of justice of I. Lewis Libby Jr., then chief of staff to Vice President Dick Cheney.

The Fitzgerald investigation also produced subpoenas for several journalists who were asked to testify about their sources. Judith Miller, then a New York Times reporter, served 85 days in jail for initially refusing to discuss her sources.

There are several laws that can be invoked against a government employee who knowingly reveals classified information. One statute applies specifically to the N.S.A., a mammoth code-breaking and eavesdropping agency based at Fort Meade, Md., prohibiting the disclosure of information about "communications intelligence activities" that is "in any manner prejudicial to the safety or interest of the United States."

Tom Devine, legal director of the Government Accountability Project, a nonprofit law firm that defends whistle-blowers, said his group would not object to a limited investigation of the leak of classified information. "But if they do a blanket witch hunt, which I fear," he said, "it would trample all over good government laws" intended to protect government workers who expose wrongdoing.

"The whole reason we have whistle-blower laws is so that government workers can act as the public's eyes and ears to expose illegality or abuse of power," Mr. Devine said.

The administration first learned that The New York Times had obtained information about the secret eavesdropping program more than a year ago and expressed concern to editors that its disclosure could jeopardize terrorism investigations. The newspaper withheld the article at the time, and the government did not open a leak investigation at that time, presumably because such an inquiry might itself disclose the program.

The newspaper did additional reporting and eventually decided to publish the article despite the continuing objections of President Bush and other top officials.

While President Bush has focused his ire on whoever leaked the information, Vice President Cheney, in remarks to reporters on Dec. 20, was critical of The Times as well. Reiterating that the administration had asked the newspaper not to publish the article, Mr. Cheney said: "Eventually they ran it. I think that's unfortunate. I think it damages national security."

A Justice Department official, asked whether the investigation would examine the newspaper's publication of the information in addition to any government employees who might have leaked it, said he could not comment on any aspect of the investigation.

Bill Keller, the newspaper's executive editor, declined to comment on the leak investigation.

Earlier this week, a top F.B.I. official sent a letter to agents working in counterterrorism and intelligence to warn them that despite the public acknowledgment of the spy agency's program by the president and other high officials, it remained classified and should not be discussed.

John Miller, a spokesman for the bureau, said the letter was sent by Gary M. Bald, executive assistant director for counterterrorism and counterintelligence, after agents received inquiries from local officials and others and sought guidance on how to respond.

David E. Sanger contributed reporting from Crawford, Tex., for this article.



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

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


FOR IMMEDIATE RELEASE
Contact: Media@aclu.org

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


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


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


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


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


The ACLU's December 29 advertisement is online at:
http://www.aclu.org/safefree/spying/23271res20051229.html




The ACLU's December 22 advertisement is online at:
http://www.aclu.org/safefree/spying/23203res20051222.html




The ACLU's December 21 letter to Attorney General Gonzales is online at:
http://www.aclu.org/safefree/general/23184leg20051221.html




The ACLU's December 20 Freedom of Information Act request seeking information about the NSA's program of warrantless spying on Americans is online at:
http://www.aclu.org/safefree/spying/23150prs20051220.html

http://hnn.us/articles/19928.html

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

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

NSA Gave Other U.S. Agencies Information From Surveillance

By Walter Pincus

Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former...

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

The Bush Family Coup:

The 9-11 attacks provided the rationale for what amounts to a Bush family coup against the Constitution
http://villagevoice.com/news/0601,mondo1,71442,6.html

===
Go To The Light:

The irony of Bush, the NSA and Gonzales whipping up a criminal investigation into who dared tell the public that they were breaking the law will be lost on far too many Americans.
http://www.informationclearinghouse.info/article11424.htm

Interesting analysis of the timing of the NYT article on NSA
By the NYTimes Public Editor

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

January 1, 2006
The Public Editor
Behind the Eavesdropping Story, a Loud Silence

By BYRON CALAME
THE New York Times's explanation of its decision to report, after what it said was a one-year delay, that the National Security Agency is eavesdropping domestically without court-approved warrants was woefully inadequate. And I have had unusual difficulty getting a better explanation for readers, despite the paper's repeated pledges of greater transparency.

For the first time since I became public editor, the executive editor and the publisher have declined to respond to my requests for information about news-related decision-making. My queries concerned the timing of the exclusive Dec. 16 article about President Bush's secret decision in the months after 9/11 to authorize the warrantless eavesdropping on Americans in the United States.

I e-mailed a list of 28 questions to Bill Keller, the executive editor, on Dec. 19, three days after the article appeared. He promptly declined to respond to them. I then sent the same questions to Arthur Sulzberger Jr., the publisher, who also declined to respond. They held out no hope for a fuller explanation in the future.

Despite this stonewalling, my objectives today are to assess the flawed handling of the original explanation of the article's path into print, and to offer a few thoughts on some factors that could have affected the timing of the article. My intention is to do so with special care, because my 40-plus years of newspapering leave me keenly aware that some of the toughest calls an editor can face are involved here - those related to intelligence gathering, election-time investigative articles and protection of sources. On these matters, reasonable disagreements can abound inside the newsroom.

(A word about my reporting for this column: With the top Times people involved in the final decisions refusing to talk and urging everyone else to remain silent, it seemed clear to me that chasing various editors and reporters probably would yield mostly anonymous comments that the ultimate decision-makers would not confirm or deny. So I decided not to pursue those who were not involved in the final decision to publish the article - or to refer to Times insiders quoted anonymously in others' reporting.)

At the outset, it's essential to acknowledge the far-reaching importance of the eavesdropping article's content to Times readers and to the rest of the nation. Whatever its path to publication, Mr. Sulzberger and Mr. Keller deserve credit for its eventual appearance in the face of strong White House pressure to kill it. And the basic accuracy of the account of the eavesdropping stands unchallenged - a testament to the talent in the trenches.

But the explanation of the timing and editing of the front-page article by James Risen and Eric Lichtblau caused major concern for scores of Times readers. The terse one-paragraph explanation noted that the White House had asked for the article to be killed. "After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting," it said. "Some information that administration officials argued could be useful to terrorists has been omitted."

If Times editors hoped the brief mention of the one-year delay and the omitted sensitive information would assure readers that great caution had been exercised in publishing the article, I think they miscalculated. The mention of a one-year delay, almost in passing, cried out for a fuller explanation. And the gaps left by the explanation hardly matched the paper's recent bold commitments to readers to explain how news decisions are made.

At the very least, The Times should have told readers in the article why it could not address specific issues. At least some realization of this kicked in rather quickly after publication. When queried by reporters for other news media on Dec. 16, Mr. Keller offered two prepared statements that shed some additional light on the timing and handling of the article.

The longer of Mr. Keller's two prepared statements said the paper initially held the story based on national security considerations and assurances that everyone in government believed the expanded eavesdropping was legal. But when further reporting showed that legal questions loomed larger than The Times first thought and that a story could be written without certain genuinely sensitive technical details, he said, the paper decided to publish. (Mr. Keller's two prepared statements, as well as some thoughtful reader comments, are posted on the Public Editor's Web Journal.)

Times readers would have benefited if the explanation in the original article had simply been expanded to include the points Mr. Keller made after publication. And if the length of that proved too clunky for inclusion in the article, the explanation could have been published as a separate article near the main one. Even the sentence he provided me as to why he would not answer my questions offered some possible insight.

Protection of sources is the most plausible reason I've been able to identify for The Times's woeful explanation in the article and for the silence of Mr. Sulzberger and Mr. Keller. I base this on Mr. Keller's response to me: "There is really no way to have a full discussion of the back story without talking about when and how we knew what we knew, and we can't do that."

Taken at face value, Mr. Keller seems to be contending that the sourcing for the eavesdropping article is so intertwined with the decisions about when and what to publish that a full explanation could risk revealing the sources. I have no trouble accepting the importance of confidential sourcing concerns here. The reporters' nearly one dozen confidential sources enabled them to produce a powerful article that I think served the public interest.

With confidential sourcing under attack and the reporters digging in the backyards of both intelligence and politics, The Times needs to guard the sources for the eavesdropping article with extra special care. Telling readers the time that the reporters got one specific fact, for instance, could turn out to be a dangling thread of information that the White House or the Justice Department could tug at until it leads them to the source. Indeed, word came Friday that the Justice Department has opened an investigation into the disclosure of classified information about the eavesdropping.

The most obvious and troublesome omission in the explanation was the failure to address whether The Times knew about the eavesdropping operation before the Nov. 2, 2004, presidential election. That point was hard to ignore when the explanation in the article referred rather vaguely to having "delayed publication for a year." To me, this language means the article was fully confirmed and ready to publish a year ago - after perhaps weeks of reporting on the initial tip - and then was delayed.

Mr. Keller dealt directly with the timing of the initial tip in his later statements. The eavesdropping information "first became known to Times reporters" a year ago, he said. These two different descriptions of the article's status in the general vicinity of Election Day last year leave me puzzled.

For me, however, the most obvious question is still this: If no one at The Times was aware of the eavesdropping prior to the election, why wouldn't the paper have been eager to make that clear to readers in the original explanation and avoid that politically charged issue? The paper's silence leaves me with uncomfortable doubts.

On the larger question of why the eavesdropping article finally appeared when it did, a couple of possibilities intrigue me.

One is that Times editors said they discovered there was more concern inside the government about the eavesdropping than they had initially been told. Mr. Keller's prepared statements said that "a year ago," officials "assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions." So the paper "agreed not to publish at that time" and continued reporting.

But in the months that followed, Mr. Keller said, "we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program" and "it became clear those questions loomed larger within the government than we had previously understood."

The impact of a new book about intelligence by Mr. Risen on the timing of the article is difficult to gauge. The book, "State of War: The Secret History of the CIA and the Bush Administration," was not mentioned in the Dec. 16 article. Mr. Keller asserted in the shorter of his two statements that the article wasn't timed to the forthcoming book, and that "its origins and publication are completely independent of Jim's book."

The publication of Mr. Risen's book, with its discussion of the eavesdropping operation, was scheduled for mid-January - but has now been moved up to Tuesday. Despite Mr. Keller's distancing of The Times from "State of War," Mr. Risen's publisher told me on Dec. 21 that the paper's Washington bureau chief had talked to her twice in the previous 30 days about the book.

So it seems to me the paper was quite aware that it faced the possibility of being scooped by its own reporter's book in about four weeks. But the key question remains: To what extent did the book cause top editors to shrug off the concerns that had kept them from publishing the eavesdropping article for months?

A final note: If Mr. Risen's book or anything else of substance should open any cracks in the stone wall surrounding the handling of the eavesdropping article, I will have my list of 28 questions (35 now, actually) ready to e-mail again to Mr. Keller.

The public editor serves as the readers' representative. His opinions and conclusions are his own. His column appears at least twice monthly in this section.

http://www.nytimes.com/2006/01/01/opinion/...bliceditor.html

Justice Dept. official resisted spy program :

A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate.
http://www.iht.com/articles/2006/01/01/news/spy.php

===
Behind the Eavesdropping Story, a Loud Silence :

THE New York Times's explanation of its decision to report, after what it said was a one-year delay, that the National Security Agency is eavesdropping domestically without court-approved warrants was woefully inadequate. And I have had unusual difficulty getting a better explanation for readers, despite the paper's repeated pledges of greater transparency.
http://www.informationclearinghouse.info/article11431.htm

===
Impeachment is Now Real :

We shall soon see the consequences of those warrantless searches, the consequences of the government’s five years of secrecy, and even the citizens of the “Red States” will be outraged.
http://www.huffingtonpost.com/martin-garbu...al_b_12972.html

===
Leak Hypocrisy:

The Bush Administration's new offensive against leakers just reminds us that when the President's political standing is at stake all is fair if the purpose is to protect the Pres...., er I mean the nation. Too bad George Bush did not express the same outrage when Scooter Libby, Karl Rove, and others in his employ, told eager journalists that Joe Wilson's wife, Valerie Plame, was a CIA operative.
http://noquarter.typepad.com/my_weblog/200..._hypocrisy.html

===
UK: Prescott satellite to spy on your home :

John Prescott has told tax inspectors to use satellites to snoop on householders' attempts to improve their homes.
http://news.independent.co.uk/uk/politics/article335970.ece

===
Mike Whitney : Skirmishes in the Information Wars:

The newly minted “Dept of Strategic Information” is an attempt to institutionalize lying as a basic function of government. It conflates perfectly with administration theories on propaganda, deception and perception-management.
http://www.informationclearinghouse.info/article11432.htm

===

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January 2, 2006
Bush Defends Spy Program and Denies Misleading Public
By ERIC LICHTBLAU
WASHINGTON, Jan. 1 - President Bush continued on Sunday to defend both the legality and the necessity of the National Security Agency's domestic eavesdropping program, and he denied that he misled the public last year when he insisted that any government wiretap required a court order.

"I think most Americans understand the need to find out what the enemy's thinking, and that's what we're doing," Mr. Bush told reporters in San Antonio as he visited wounded soldiers at the Brooke Army Medical Center.

"They attacked us before, they'll attack us again if they can," he said. "And we're going to do everything we can to stop them."

Mr. Bush's strong defense of the N.S.A. program, which he authorized in 2002 to allow some domestic eavesdropping without court warrants, came as a leading Democratic lawmaker called on the administration to make available current and former high-level officials to explain the evolution of the secret program.

Senator Arlen Specter, a Pennsylvania Republican and chairman of the Judiciary Committee, has already pledged to make hearings into the program one of his highest priorities.

In a letter to Mr. Specter on Sunday, Senator Charles E. Schumer, a New York Democrat who is also on the committee, said the panel should also explore "significant concern about the legality of the program even at the very highest levels of the Department of Justice."

The New York Times reported Sunday that James B. Comey, then deputy attorney general, refused to sign on to the recertification of the program in March 2004.

That prompted two of Mr. Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then the White House counsel and now the attorney general - to make an emergency hospital visit to John Ashcroft, then the attorney general, to try to persuade him to give his authorization, as required by White House procedures for the program.

Officials with knowledge of the events said that Mr. Ashcroft also appeared reluctant to sign on to the continued use of the program, and that the Justice Department's concerns appear to have led in part to the suspension of the program for several months. After a secret audit, new protocols were put in place at the N.S.A. to better determine how the agency established the targets of its eavesdropping operations, officials have said.

Asked Sunday about internal opposition, President Bush said: "This program has been reviewed, constantly reviewed, by people throughout my administration. And it still is reviewed.

"Not only has it been reviewed by Justice Department officials, it's been reviewed by members of the United States Congress," he said. "It's a vital, necessary program."

But Mr. Schumer, in an appearance on "Fox News Sunday," said the White House should have to explain the apparent internal dissent over the program.

"I hope the White House won't hide behind saying 'executive privilege, we can't discuss this,' " Mr. Schumer said. "That's the wrong attitude."

"A discussion, perhaps a change in the law," he said, "those are all legitimate. Unilaterally changing the law because the vice president or president thinks it's wrong, without discussing the change, that's not the American way."

But Senator Mitch McConnell of Kentucky, the second-ranking Republican in the Senate, said on the same television program that Mr. Bush had acted within the Constitution to protect the country from another terrorist attack. Mr. McConnell said the focus now should be on identifying who disclosed the existence of the classified operation.

The Justice Department said Friday that it had opened an investigation into the disclosure of the N.S.A. program, which was first reported by The Times on Dec. 15.

Mr. McConnell said of the disclosure, "This needs to be investigated, because whoever leaked this information has done the U.S. and its national security a great disservice."

As Mr. Bush continued to defend the program in San Antonio, he was asked about a remark he made in Buffalo in 2004 at an appearance in support of the antiterrorism law known as the USA Patriot Act, where he discussed government wiretaps.

"Any time you hear the United States government talking about wiretap," Mr. Bush said in Buffalo, "a wiretap requires a court order."

He added: "Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

Democrats have seized on the remark, made more than two years after Mr. Bush authorized the N.S.A. to conduct wiretaps without warrants, in charging that the president had misled the public.

Asked about that charge on Sunday, Mr. Bush said: "I was talking about roving wiretaps, I believe, involved in the Patriot Act. This is different from the N.S.A. program.

"The N.S.A. program is a necessary program. I was elected to protect the American people from harm. And on Sept. 11, 2001, our nation was attacked. And after that day, I vowed to use all the resources at my disposal, within the law, to protect the American people, which is what I have been doing and will continue to do."

Mr. Bush also emphasized that the program was "limited" in nature and designed to intercept communications from known associates of Al Qaeda to the United States. He said several times that the eavesdropping was "limited to calls from outside the United States to calls within the United States."

This assertion was at odds with press accounts and public statements of his senior aides, who have said the authorization for the program required one end of a communication - either incoming or outgoing - to be outside the United States. The White House, clarifying the president's remarks after his appearance, said later that either end of the communication could in fact be outside the United States.

The Times has reported that despite a prohibition on eavesdropping on phone calls or e-mail messages that are regarded as purely domestic, the N.S.A. has accidentally intercepted what are thought to be a small number of communications in which each end was on American soil, due to technical confusion over what constitutes an "international" call.

Officials also say that the N.S.A., beyond eavesdropping on up to 500 phone numbers and e-mail addresses at any one time, has conducted much larger data-mining operations on vast volumes of communication within the United States to identify possible terror suspects. To accomplish this, the agency has reached agreements with major American telecommunications companies to gain access to some of the country's biggest "switches" carrying phone and e-mail traffic into and out of the country.



Copyright 2006The New York Times Company

"I think most Americans understand the need to find out what the enemy's thinking, and that's what we're doing," Mr. Bush told reporters in San Antonio as he visited wounded soldiers at the Brooke Army Medical Center.


From what I've read on the extent of
GW's domestic surveillance...his "Enemies List"
must put Richard Nixon's to shame.

NSA Gave Other U.S. Agencies Information From Surveillance

Fruit of Eavesdropping Was Processed and Cross-Checked With Databases

By Walter Pincus

Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former administration officials said.

http://www.informationclearinghouse.info/article11428.htm

By Walter Pincus
Washington Post Staff Writer

01/01/06 "Washington Post" -- -- Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former administration officials said.

The NSA has turned such information over to the Defense Intelligence Agency (DIA) and to other government entities, said three current and former senior administration officials, although it could not be determined which agencies received what types of information. Information from intercepts -- which typically includes records of telephone or e-mail communications -- would be made available by request to agencies that are allowed to have it, including the FBI, DIA, CIA and Department of Homeland Security, one former official said.

At least one of those organizations, the DIA, has used NSA information as the basis for carrying out surveillance of people in the country suspected of posing a threat, according to two sources. A DIA spokesman said the agency does not conduct such domestic surveillance but would not comment further. Spokesmen for the FBI, the CIA and the director of national intelligence, John D. Negroponte, declined to comment on the use of NSA data.

Since the revelation last month that President Bush had authorized the NSA to intercept communications inside the United States, public concern has focused primarily on the legality of the NSA eavesdropping. Less attention has been paid to, and little is known about, how the NSA's information may have been used by other government agencies to investigate American citizens or to cross-check with other databases. In the 1960s and 1970s, the military used NSA intercepts to maintain files on U.S. peace activists, revelations of which prompted Congress to restrict the NSA from intercepting communications of Americans.

Today's NSA intercepts yield two broad categories of information, said a former administration official familiar with the program: "content," which would include transcripts of a phone call or e-mail, and "non-content," which would be records showing, for example, who in the United States was called by, or was calling, a number in another country thought to have a connection to a terrorist group. At the same time, NSA tries to limit identifying the names of Americans involved.

"NSA can make either type of information available to other [intelligence] agencies where relevant, but with appropriate masking of its origin," meaning that the source of the information and method of getting it would be concealed, the former official said.

Agencies that get the information can use it to conduct "data mining," or looking for patterns or matches with other databases that they maintain, which may or may not be specifically geared toward detecting terrorism threats, he said. "They are seeking to separate the known from the unknown, relationships or associations," he added.

The NSA would sometimes monitor telephones, e-mails or fax communications in cases where individuals in the United States -- and sometimes people they contacted -- were linked to an alleged foreign terrorist group, officials have said. The NSA, officials said, limited its decisions to follow-up with more electronic surveillance on an individual to those cases where there was some apparent link to terrorist sources.

But other agencies, one former official said, have used phone numbers or other records obtained from NSA in combination with wide-ranging databases to look for links and associations. "What data sets are included is a policy decision [made by individual agencies] when they involve other than terrorist links," he said.

DIA personnel stationed inside the United States went further on occasion, conducting physical surveillance of people or vehicles identified as a result of NSA intercepts, said two sources familiar with the operations, although the DIA said it does not conduct such activities.

The military personnel -- some of whose findings were reported to the Northern Command in Colorado -- were employed as part of the Pentagon's growing post-Sept. 11, 2001, domestic intelligence activity based on the need to protect Defense Department facilities and personnel from terrorist attacks, the sources said.

Northcom was set up in October 2002 to conduct operations to deter, prevent and defeat terrorist threats in the United States and its territories. The command runs two fusion centers that receive and analyze intelligence gathered by other government agencies.

Those Northcom centers conduct data mining, where information received from the NSA, the CIA, the FBI, state and local police, and the Pentagon's Talon system are cross-checked to see if patterns develop that could indicate terrorist activities.

Talon is a system that civilian and military personnel use to report suspicious activities around military installations. Information from these reports is fed into a database known as the Joint Protection Enterprise Network, which is managed, as is the Talon system, by the Counterintelligence Field Activity, the newest Defense Department intelligence agency to focus primarily on counterterrorism. The database is shared with intelligence and law enforcement agencies and was found last month to have contained information about peace activists and others protesting the Iraq war that appeared to have no bearing on terrorism.

Military officials acknowledged that such information should have been purged after 90 days and that the Talon system was being reviewed.

Gen. Michael V. Hayden, deputy director for national intelligence and former head of NSA, told reporters last month that the interception of communications to the United States allegedly connected to terrorists was, in almost every case, of short duration. He also said that when the NSA creates intelligence reports based on information it collects, it minimizes the number of Americans whose identities are disclosed, doing so only when necessary.

"The same minimalizationist standards apply across the board, including for this program," he said of the domestic eavesdropping effort. "To make this very clear -- U.S. identities are minimized in all of NSA's activities, unless, of course, the U.S. identity is essential to understand the inherent intelligence value of the intelligence report." Hayden did not address the question of how long government agencies would archive or handle information from the NSA.

Today's controversy over the domestic NSA intercepts echoes events of more than three decades ago. Beginning in the late 1960s, the NSA was asked initially by the Johnson White House and later by the Army, the Secret Service, and the Bureau of Narcotics and Dangerous Drugs to intercept messages to or from the United States. Members of Congress were not informed of the program, code-named Minaret in one phase.

The initial purpose was to "help determine the existence of foreign influence" on "civil disturbances occurring throughout the nation," threats to the president and other issues, Gen. Lew Allen Jr., then director of NSA, told a Select Senate Committee headed by then-Sen. Frank Church (D-Idaho) in 1975.

Allen, in comments similar to recent Bush administration statements, said collecting communications involving American citizens was approved legally, by two attorneys general. He also said that the Minaret intercepts discovered "a major foreign terrorist act planned in a large city" and prevented "an assassination attempt on a prominent U.S. figure abroad."

Overall, Allen said that 1,200 Americans citizens' calls were intercepted over six years, and that about 1,900 reports were issued in three areas of terrorism. As the Church hearings later showed, the Army expanded the NSA collection and had units around the country gather names and license plates of those attending antiwar rallies and demonstrations. That, in turn, led to creation of files on these individuals within Army intelligence units. At one point a Senate Judiciary subcommittee showed the Army had amassed about 18,000 names. In response, Congress in 1978 passed the Foreign Intelligence Security Act, which limited NSA interception of calls from overseas to U.S. citizens or those involving American citizens traveling abroad.

© 2006 The Washington Post Company

Full Speed Ahead
After 9/11, Bush and Cheney pressed for more power and got it. Now, predictably, the questions begin. Behind the NSA spying furor.

By Evan Thomas and Daniel Klaidman
Newsweek


Jan. 9, 2006 issue - The talk at the White House in the days and weeks after 9/11 was all about suitcase nukes and germ warfare and surprise decapitation strikes. Every morning, as they crossed West Executive Drive on their way to work in the West Wing, Bush administration staffers recall seeing a plain white truck with a galvanized metal chimney. Sensors sniffing for pathogens or radioactivity, they guessed, though they couldn't be sure. Like just about everything else at that spooky time, the purpose of the truck was a secret.

Such chilling sights are not likely to inspire thoughtful ruminations about the separation of powers or the true meaning of the Fourth Amendment's ban on unreasonable searches and seizures. The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it. The Bush administration did not throw away the Bill of Rights in the months and years that followed; indeed, NEWSWEEK has learned, ferocious behind-the-scenes infighting stalled for a time the administration's ambitious program of electronic spying on U.S. citizens at home and abroad.

On one day in the spring of 2004, White House chief of staff Andy Card and the then White House Counsel Alberto Gonzales made a bedside visit to John Ashcroft, attorney general at the time, who was stricken with a rare and painful pancreatic disease, to try—without success—to get him to reverse his deputy, Acting Attorney General James Comey, who was balking at the warrantless eavesdropping. Miffed that Comey, a straitlaced, by-the-book former U.S. attorney from New York, was not a "team player" on this and other issues, President George W. Bush dubbed him with a derisive nickname, "Cuomo," after Mario Cuomo, the New York governor who vacillated over running for president in the 1980s. (The White House denies this; Comey declined to comment.)

In a perfect democracy trying to strike a balance between civil liberties and national security, there would be reasoned, open debate between representatives of the different branches of government. But human nature and politics rarely work in neat and orderly ways. In moments of crisis, presidents, if they believe in executive power (and most inevitably do), will do almost anything to protect the country. Only after the crisis ebbs does the debate begin over the proper means and ends, and by then the people and their representatives are often shocked to find what the president has done in the name of protecting them. More than four years after September 11, America finds itself debating some of the oldest issues in our history: how to balance liberty and security, how much power we should cede to the White House and whether what the historian Arthur Schlesinger Jr. dubbed "The Imperial Presidency" amid Watergate is a good thing, a bad thing or something in between. That the war on terror is unconventional and seemingly endless adds to the difficulty and raises the stakes.

After 9/11, President Bush and his top advisers faced, they believed, a mortal yet invisible enemy. The mightiest armed forces in the world were not effective against such a shadowy foe. Nor were human spies much help. Movies and novels notwithstanding, the CIA had rarely (if ever) penetrated a terrorist cell. America's one true weapon was technology. Spy satellites and the massive computers of the National Security Agency (so secret it was nicknamed "No Such Agency") were able to pluck telephone and e-mail conversations out of the air and ether. The NSA could cock a giant ear to America's enemies—and, ideally, overhear their plots.

As communications were increasingly digitized and encrypted, intelligence experts sometimes warned that the NSA was going deaf. Rare public statements by top NSA officials seemed to give credence to that worry. It appears, however, that the NSA was secretly working on sophisticated "data mining," computer programs that could sift through vast amounts of information searching for patterns and connections—in effect, "Googling" America's enemies. After 9/11, the government was criticized for not "connecting the dots," linking and following up on clues, like phone calls from hijackers hiding in the United States to their terror masters abroad. With the NSA's computers fully cranked up, Bush administration officials hoped, they would find other terrorist "sleeper cells" before they could strike again.



Still, there was a catch. In 1978, Congress passed the Foreign Intelligence Surveillance Act. FISA required intelligence agencies to obtain a warrant before eavesdropping on communications involving "U.S. persons." A reaction to CIA and FBI snooping on Americans at home and abroad, FISA was written for the cold war. It contemplated eavesdropping on telephone calls from, say, a KGB agent posing as a diplomat in Eastern Europe and a traveling American businessman. It was not meant for the instantaneous data mining of thousands of phone calls or e-mails as they flashed through the switches of American telecommunications companies. A secret court, set up by FISA, almost never turned down a government application for a warrant. But applying for one could require scores of pages of documents, several signatures, up to the attorney general's, and precious time. The law did allow for retroactive approval (within 72 hours). But as the NSA's computers tracked phone calls from Afghanistan and Pakistan to possible Qaeda sympathizers in America in those fevered days after 9/11, any red tape seemed like an unpardonable snare.

It does not appear that President Bush—determined to stand tall in the war on terror—or Vice President Cheney, a staunch believer in executive power, hesitated to circumvent FISA. Asserting the broad warmaking powers conferred on the president by Article 2 of the Constitution and by a post-9/11 congressional resolution authorizing the use of force to combat global terror, Bush repeatedly approved of what the NSA calls a "special collection program" that eavesdropped—without warrants—on about 500 Americans a day.

When the story of the NSA's program broke in The New York Times on Dec. 16, there was an immediate uproar in the press and on Capitol Hill. The reaction was predictably partisan. Most Republicans and conservatives defended Bush for safeguarding the country (though warrantless spying gave libertarians some pause). Most Democrats and liberals cited the eavesdropping program as more damning evidence that Bush and Cheney, already caught countenancing torture and jailing detainees without any legal rights, were running roughshod over civil liberties.

For all its histrionics, the debate was narrow and somewhat vacuous. It is still hard to know if America has not been attacked for the past four years because (1) the Bush administration has waged an effective war on terror or (2) the threat is not as severe as originally thought. The answer may be a bit of both. Likewise, it is unclear whether the eavesdropping has done much to thwart terrorist plots or, on the other hand, whether it has truly robbed Americans of their privacy. Much of the eavesdropping is by a computer searching for key words, not a human being listening to a private conversation.

One thing is certain. The current debate over national security and civil liberties is not new. It follows a predictable pattern of a democracy in wartime. Through two centuries, the reactions and overreactions of American presidents to enemies at home and abroad have caused some sickening lurches, but the ship of state seems to have a self-righting mechanism. To understand the current struggle—and judge how seriously to take the Bush and Cheney bids for power—it is useful to compare this battle to all the balancing acts that have come before. The facts change, but the pattern varies little:

IN NATIONAL CRISES, PRESIDENTS REACH FOR POWER.
Though the choice is rarely stated—or perhaps even conscious—a president will almost always choose to violate individual rights over the risk of losing a war. When the French threatened American sovereignty on the high seas in 1798, John Adams supported the Alien and Sedition Acts, blatantly punishing free speech as traitorous. When the Civil War broke out in 1861, Abraham Lincoln suspended habeas corpus (the rule giving citizens a right to take their grievances to court). During World War I, Woodrow Wilson allowed officials to prosecute anyone for criticizing the government. During World War II, Franklin Roosevelt allowed FBI Director J. Edgar Hoover to promiscuously wiretap, and ordered Japanese-Americans placed in internment camps. As the Vietnam War dragged on and domestic dissent arose, Richard Nixon—citing his Demo-cratic predecessors FDR and Lyndon Johnson—authorized bugging and wiretapping against domestic "subversives." None of these steps, it should be pointed out, made the nation appreciably safer.



It is still not clear how far President Bush went after 9/11 to ramp up the national-security machine. Clearly the president wanted to unleash the intelligence services as well as the military, which had grown cautious after Vietnam and Watergate. The full dimensions of this secret program have only slowly leaked out. The legal justification, in addition to the commander in chief's warmaking power under the Constitution, was a congressional resolution that was shouted through in September 2001, three days after the attacks. Most members of Congress seem to have assumed they were voting to authorize an attack on Al Qaeda and the Taliban in Afghanistan. But a former White House official involved in the drafting, who did not wish to be identified discussing internal matters, said the understanding in the administration was that the president was seeking "an express grant of authority from Congress to maximize the power that could be used"—meaning all kinds of power to seek out, detain and kill terrorists.

CONGRESS LIES LOW AND GOES ALONG.
Typically, in times of national peril, Congress gets swept along on a wave of patriotism. During the Korean and Vietnam wars, presidents did not even bother to get Congress to pass a formal declaration of war. After Vietnam and Watergate, Capitol Hill briefly reasserted itself with the War Powers Act—but no Congress and no president has ever wanted to put the act to the test. In the first and second gulf wars, Bush father and son relied on less-stringent congressional resolutions. The White House official involved in the September 2001 resolution authorizing force against terrorism recalls very little push back from the Hill. Senate Judiciary Committee chairman Arlen Specter wanted to limit the scope of the measure, but he was successfully rolled.

Given Congress's pliability, several commentators have wondered why the White House did not ask Congress to amend FISA to allow the sort of warrantless data mining and eavesdropping that has set off the current flap. A White House official who declined to be identified discussing internal deliberations says that the administration feared a congressional debate would have tipped off the terrorists to secret "sources and methods" used by the NSA and other spy services.

A more subtle factor is also at work. The executive branch is always reluctant to ask Congress for permission if, by the very asking, that means conceding that the legislative branch has the power to say no. Presidents prefer to keep warmaking powers general—and unquestioned. By the same token, congressmen often do not wish to know exactly what the spooks are up to in the name of national security. Allen Dulles, the legendary CIA director in the 1950s, once said that he always "told the truth" to Senate Armed Services Committee chairman Richard Russell; "that is," Dulles added with a wink, "if Dick wants to know!"

When the NSA eavesdropping story leaked, the Bush administration immediately claimed that it had briefed congressional leaders on several occasions. But the briefings appear to have been sketchy and ultra-secretive. Sen. Tom Daschle, the Senate Democratic leader at the time, recalled being briefed in 2002 and again in 2004. Interviewed by NEWSWEEK, he was reluctant to get into classified details, but he did say, "The presentation was quite different from what is now being reported in the press. I would argue that there were omissions of consequence." At his briefing in the White House Situation Room, Daschle was forbidden to take notes, bring staff or speak with anyone about what he had been told. "You're so disadvantaged," Daschle says. "They know so much more than you do. You don't even know what questions to ask."

THE BUREAUCRACY PUSHES BACK.
During Bush's tenure, decisions on the rules of spying and interrogation have been exceptionally closely held, generally the work of a small group of White House and Justice Department lawyers with an expansive view of presidential power. For the most part, lawyers from the State Department and uniformed military services have been cut out. But as the rules were implemented—permitting, for example, the "water boarding" or indefinite secret detention of a terror suspect—other government lawyers sometimes protested. At the outset, at least, the complaints were private and handled within channels. Though "bureaucrat" can be a bad name, government careerists are sometimes the only ones who will uphold standards of fairness or decency. They know, too, that they can be left holding the bag if later congressional hearings look into dubious secret operations.



At the Justice Department, it was a former prosecutor, James Comey, who forced the White House to back away from the so-called Torture Memo, which appeared to give intelligence agencies a license to use any interrogation method that did not cause the extreme pain associated with organ failure. Comey was the No. 2 man at the department at the time. Although the details are unclear, it appears that Comey's objections were also key to slowing the warrantless-eavesdropping program in 2004 for a time. According to several officials who would not be identified talking about still-classified matters, Comey (among other government lawyers) argued that the authority for the program—the 2001 "use of force" resolution—had grown stale. It was time to audit the program before proceeding in any case, Comey said.

But in March 2004, White House chief of staff Card and White House Counsel Gonzales visited Ashcroft, the seriously ill attorney general, to try to get him to overrule Comey, who was officially acting as A.G. while Ashcroft was incapacitated. Ashcroft refused, and a battle over what to do broke out in the Justice Department and at the White House. Finally, sometime in the summer of 2004, a compromise was reached, with Comey onboard: according to an account in The New York Times, Justice and the NSA refined a checklist to follow in deciding whether "probable cause" existed to start monitoring someone's conversations.

Bureaucrats frustrated by their political bosses have one time-honored weapon: the leak. Though it is unclear exactly how the NSA eavesdropping story made its way to The New York Times (last week, the Justice Department launched a formal leak investigation), the sources were probably officials disgruntled for reasons of morality and public-mindedness and possibly less-noble motivations (turf battles, score settling).

THE PUBLIC AND THE POLITICIANS REACT—AND OVERREACT. Historically, wartime encroachments on civil liberties have spawned backlashes. Lincoln was accused of dictatorship and his Republican Party lost seats in the congressional elections of 1862 and 1864. Wilsonian excesses during and after World War I helped provoke the modern civil-liberties movement, and Nixon's abuses of power spawned a host of Watergate reforms—including FISA.

This winter, Capitol Hill will without question see a debate over Bush administration infringements on civil liberties. As 9/11 recedes in public memory and Bush has slipped in the polls, public attitudes are shifting. Still, Bush does not show any sign of backing down from any of his covert programs.

There is a risk that Bush will overplay his hand. Some White House insiders have been urging the hardliners to take a less confrontational stance, if only for tactical reasons. The courts generally give great deference to the executive branch on national-security questions, but there have been signs of restiveness lately even among the president's staunchest supporters on the federal bench. The Supreme Court is signaling in subtle and complex ways that it may rein in the Bush team's absolutists by, for instance, requiring that detainees be afforded more legal rights.

The American public may be less than sympathetic to the targets of the Bush antiterror crackdown. But if the administration is shown to have violated the civil liberties of mainstream peace groups or (heaven forbid!) members of the press, the outcry could produce an overreaction. After the reformers got through with the intelligence community post-Watergate, Richard Nixon acerbically commented, "They cut the balls off the CIA." He was not entirely exaggerating. The investigations and reforms of the 1970s and 1980s unquestionably made CIA officials in the 1990s more risk averse.

As young up-and-comers, Donald Rumsfeld and Richard Cheney were back-to-back White House chiefs of staff in the Ford administration. They got their hands on power just as the "Imperial President" was being cut down to size. For the past 25 years, both men have wanted to restore executive power. When 9/11 came along, they seized the moment. It would be the height of irony if, by taking too hard-line a stance now, they ended up undermining the power of the president.

With Mark Hosenball, Michael Isikoff and Richard Wolffe in Washington, D.C.

http://www.msnbc.msn.com/id/10663996/site/newsweek/

Should the White House continue ordering selected wiretaps without warrants? * 13868 responses


Yes
13%

No
86%

I don't know
1%


Go to the Newsweek website to vote.

http://www.msnbc.msn.com/id/10663996/site/newsweek/

Jane Hamsher: Russert Watch: The Out-to-Lunch Bunch

Jane Hamsher
Sun Jan 1, 7:07 PM ET



I realize that a New Year's day "Year in Review" roundtable on Meet the Press is probably devoted to bloviating by design rather than happenstance, but it would've been nice if someone had managed to pick up a newspaper before the cameras started rolling.

In between Jon Meacham's comical assumption of gravitas that seemed more appropriate to a 60's Brylcreem commercial and Doris Kearns Goodwin's jokes about Harry Truman generally incomprehensible to anyone under the age of 75, William Safire's lapse into relevance felt quite unintentional.

Regarding his Nixon years (video via Crooks & Liars):



George W. Bush says he is only illegally wiretapping terrorists. William Safire isn't buying it.

It would have been nice at that point if someone on the panel had picked up the thread and talked about the New York Times article from last night which noted that when John Ashcroft was in the hospital recovering from gall bladder surgery in March 2004, his acting deputy -- James Comey -- refused to sign off on the program. That Alberto Gonzales and Andy Card were forced to go to Ashcroft's hospital room and ask him to override his deputy.

That would have been the perfect excuse for Newsweek editor Meacham to stop with the tired homilies about the American religious impulse and pipe up about the story in his own magazine today which broke the news that Ashcroft would not, in fact, override Comey. That Comey had displeased the Administration before when he went to John Ashcroft in December of 2003 and told him he had to recuse himself from the CIA leak case, and then appointed Patrick Fitzgerald to head up the investigation.

At which point Doris Kearns Goodwin, instead of telling yet another knee-slapper about LBJ, could have mentioned that much like Fitzgerald, Comey has a peerless bona fides with regard to prosecuting terrorism cases that calls into serious question the Administration's insistence that such measures were essential in the war on terror.

And Eugene Robinson could have brought up the fact that in his own paper today, Walter Pincus just broke a story about how the NSA shared its illegally obtained information with other departments including the Pentagon, which is known to have been tracking tracking anti-war protesters.

But that probably would've sent poor Bill Safire round the twist so maybe it was all for the best.

Instead, Russert hauled out a quote from delusional Papal knucklesucka Peggy Noonan and everyone lapsed into some weird kabuki about Catholicism in which Jon Meacham's jaw threatened to come unhinged and take pensive flight and the conversation very nearly concluded before it befell Eugene Robinson to mention the elephant in the middle of the room -- recent funereal carnivals notwithstanding, the Catholic church in North America has taken a drubbing due to charges of child abuse that no pontiff is willing to address.

With the occasional exception of Robinson (and of course Safire's momentary dalliance) it was absolutely remarkable how detached from real world concerns these people are. Hurricane Katrina and its aftermath were reduced to an entertaining piece of political theater and neither the CIA leak case nor the Abramoff scandal were anywhere on their event horizon for 2006.

Perhaps there is an unquenchable public appetite out there for wisdom gleaned from 1950s cocktail napkins that I just wasn't aware of. If so today it was not disappointed.

Jane Hamsher can be found blogging regularly at [url=http://firedoglake.blogspot.com/]firedoglake.blogspot.com[/

http://news.yahoo.com/s/huffpost/20060102/cm_huffpost/013114

Spy Controversy, Redux

Ruth Marcus
Monday, January 2, 2006;



"We have a particular obligation to examine the NSA, in light of its tremendous potential for abuse. . . . The interception of international communications signals sent through the air is the job of NSA; and, thanks to modern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awesome technology against domestic communications."

If those words sound applicable to the controversy over warrantless eavesdropping by the National Security Agency, consider this: They were spoken 30 years ago, on Oct. 29, 1975, as Sen. Frank Church (D-Idaho), opened a hearing that featured the first-ever public testimony by an official of the super-secret NSA.

I went back to the records of the Church committee uncertain whether what I'd find in its investigation of abuses by U.S. intelligence agencies would have much relevance for today's uproar. Certainly the Bush administration's actions - its unilateral assertion of questionable presidential powers, its casual disregard for established legal rules, its contemptuous attitude toward congressional oversight - are extremely troubling. At the same time, the underlying actions at issue, at least from what's been reported so far, don't seem to rise to the level of the lurid, flagrant abuses (plots to assassinate foreign leaders, "black-bag job" break-ins to disrupt political dissidents) uncovered by the Church committee and a parallel House probe.

As it turned out, though, some of the less well-known aspects of those investigations involved the NSA. And, much as today, the episodes called on the agency, the executive branch and Congress to grapple with questions about the proper balance between privacy and security, the role of the NSA in gathering intelligence domestically, and the circumstances, if any, under which the NSA could eavesdrop on Americans.

The Church committee discovered that the NSA had for years - unbeknownst to Congress - been using a "watch list" of U.S. citizens and organizations in sorting through the foreign communications it intercepted. In addition, for three decades, from 1945 to 1975, telegraph companies had been turning over to the NSA copies of most telegrams sent from the United States to foreign countries. This program, code-named Shamrock, was, according to the Church committee report, "probably the largest governmental interception program affecting Americans ever undertaken."

In the view of critics, the legacy of the Church committee was to intimidate and enfeeble intelligence agencies. I see it in a much more positive light: The impact of the investigation and the legislation enacted in its wake was, at least for a time, to create and empower an intelligence oversight function in Congress; to set out a series of legal rules under which the NSA was to operate; and to deter the agency from running afoul of those rules.

Even before Sept. 11, the NSA faced new challenges posed by the changing nature and explosive growth of the communications it is tasked with monitoring. As the agency explained in a December 2000 memorandum prepared for the presidential transition, "NSA's existing authorities were crafted for the world of the mid to late 20th Century, not for the 21st Century."

The terrorist attacks underscored the need to reconsider the agency's rules of engagement. Testifying in 2002 before the joint congressional committee investigating the attacks, its then-director, Gen. Michael V. Hayden, pleaded for such guidance. "What I really need you to do," Hayden told lawmakers, "is to talk to your constituents and find out where the American people want that line between security and liberty to be. In the context of NSA's mission, where do we draw the line between the government's need for counterterrorism information about people in the United States and the privacy interests of people located in the United States?"

Important questions for discussion. The problem, now exposed by the reports of the warrantless surveillance, is that the administration - including Hayden, now deputy director of national intelligence - disregarded his advice. To the extent that the executive branch debated these issues, it was a conversation only with itself. It all but cut Congress out of the process - and while lawmakers have the right to be angry, and the duty to conduct hearings, they should also consider whether they were too lax in overseeing the agency. Instead of pressing for changes in the law, the administration summarily decided to circumvent the statute. It chose, in Hayden's words, "to live on the edge."

Perhaps, in the aftermath of Sept. 11, that's how the country wants its intelligence activities conducted. But living on the edge inevitably risks falling off a cliff - especially if you choose to live there on your own and in secret. The lessons of the Church committee - the need for legal checks, the importance of congressional oversight, the missteps that inevitably occur when the executive branch is accountable only to itself - seem to have been ignored by all the parties involved.

As Congress gears up for another needed round of hearings, the challenge is not only to discover what happened but also not to forget, again, what was already, painfully learned.

marcusr@washpost.com

http://www.washingtonpost.com/wp-dyn/conte...0200221_pf.html

From Washington Monthly:

http://www.washingtonmonthly.com/archives/...007899.php#more

December 28, 2005
Guest: Steve Benen


'FRUIT OF THE POISONOUS TREE'....The principal problem facing the Bush administration over its warrantless-search program is political -- the president's critics are outraged, there's bi-partisan support for congressional hearings, and op-ed pages are filled with commentaries about Bush intentionally circumventing the rule of law.

It's not, however, the administration's only problem. There's also issue about using illegally-obtained information -- the ever-popular "fruit of the poisonous tree" -- in criminal cases against suspected terrorists.

Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out. [...]

"If I'm a defense attorney," one prosecutor said, "the first thing I'm going to say in court is, 'This was an illegal wiretap.' "



This is a multi-faceted problem for the administration. In pending cases, defense attorneys will demand information on how evidence was gathered against their clients. In instances in which the administration was already successful, many of which were plea bargains, attorneys will be anxious to reopen cases. One lawyer even raised the prospect of a civil case against the president directly.

For that matter, the controversy surrounding Bush's surveillance program -- now on Day 13 -- is still producing new revelations. UPI and the Seattle Post-Intelligencer reported that the administration initially sought warrants from the FISA court, but when judges balked at some of the president's more sweeping requests, the administration decided to stop asking.

Specifically, the FISA Court modified 179 of the 5,645 requests for surveillance since 2001, and rejected or deferred at least six requests for warrants during 2003 and 2004. In other words, the court that had approved practically every request for a warrant for decades found that the Bush administration wanted to go too far. It was then that the president suddenly decided that judicial oversight wasn't so important after all.

Asked about these reports yesterday, White House spokesperson Trent Duffy declined comment. I can't say I blame him.

http://www.washingtonmonthly.com/archives/...5_12/007869.php

C-span did an entire program today on Bush's spying program.

Republicans defended him; democrats and independents did not.
-----------------------------------
My ISP has a poll today:

Do you agree with the US government's domestic spying program?

Yes: 56%
No: 44%
--------------------------
Bush's job approval dropped back down:
Gallup 12/19-22/05 Approve 43% Disapprove 53% unsure 4%

http://www.pollingreport.com/BushJob.htm
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"Which comes closer to your view? The government should take all steps necessary to prevent additional acts of terrorism in the U.S., even if it means your basic civil liberties would be violated. OR, The government should take steps to prevent additional acts of terrorism, but not if those steps would violate your basic civil liberties." Options rotated. Form B (N=522, MoE ± 5).12/16-18/05

Take ALL Steps Necessary 31%
Don't Violate Basic Liberties 65%
Unsure 4%

http://www.pollingreport.com/terror.htm

from previous posting

Specifically, the FISA Court modified 179 of the 5,645 requests for surveillance since 2001, and rejected or deferred at least six requests for warrants during 2003 and 2004.

C-span today said that in 2005, 3 warrants were refuded, two of which were withdrawn and one was revised, resubmitted and accepted by the FISA court. SO BUSH HAD 100% APPROVAL IN 2005 FOR THE ONES HE DID ASK FOR.

Why does he need to go around the FISA law?

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

And why is he so concerned about the leakers for his criminal activity when he won't turn over the criminals in his White House over the leaks about Valerie Plame?

And why is he just now looking into the leakers when he knew over 1 year ago that the NYTimes and Wash Post reporters had this information???

It seems a smokescreen to get off topic again.

C-span guests also said that Alberto Gonzalez should recuse himself and appoint an indendent investigator on the leakers since he himself told Bush it was Ok to do this spying without warrants.

Should the White House continue ordering selected wiretaps without warrants? * 17883 responses [updated from previous post; same result, more voters]

Yes 13%
No 86%
I don't know 1%

Go to the Newsweek website to vote.
http://www.msnbc.msn.com/id/10663996/site/newsweek/

From previous post

Senator Arlen Specter, a Pennsylvania Republican and chairman of the Judiciary Committee, has already pledged to make hearings into the program one of his highest priorities.


C-span read an article today that said the WH is pressuring Specter to hold private not public hearings or cancel the hearings.

The WH has overstepped the separation of powers. Contact Specter and Leahy to opppse private hearings and support public hearings!

A C-span guest (law professor) today suggested that citizens join other citizen watch groups like the ACLU to voice their opposition to this spying program if congress fails to do their job.

A republican caller lambasted the professor because he said the ACLU was not for the citizens unless it was to protect gay people (he specifically said NAMBLA). The professor said he was not aware of a NAMBLA program at the ACLU; but went on to mention other organizations that citizens could join on this issue.

Other callers repeated the talking points that Carter and Clinton did illegal wiretaps. The professor disputed that also.

The right wing hate mail and talk radio has turned things up side down in this country. Anti-gay, anti-abortion, Clinton-bashing rhetoric still drive the partisan political divide. Wait until the campaigns start. We will hear the same old rhetoric. Republicans forgive anything this WH does. It is disgusting.