http://writ.news.findlaw.com/colb/20051228.html

Why Get A Warrant?: The President's Admission that He Authorized Warrantless Domestic Surveillance
By SHERRY F. COLB
----
Wednesday, Dec. 28, 2005

The New York Times recently revealed that the Bush Administration has been ordering the National Security Agency to eavesdrop on telephone conversations and e-mails of U.S. citizens, without first seeking a warrant. President Bush has acknowledged the truth of the reports.

Such warrantless surveillance contravenes both the Constitution and federal statutes. For ordinary domestic surveillance, the U.S. Constitution generally requires awarrant supported by probable cause to believe that the target of the surveillance has committed a crime. Several statutes, including Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), and the Foreign Intelligence Surveillance Act ("FISA"), similarly require that a warrant generally be obtained when the government wishes to spy on people in this country.



The President contends, however, that these warrant requirements, and the statutes that contain them, do not take into account the current realities of terrorism and must therefore go by the wayside. Bush's claim does not withstand close scrutiny.

What Are Warrants and Why Do We Require Them?

To appreciate the weakness of the President's claims, it is important to understand the role that warrants play in guarding our privacy.

A warrant is a certification by a detached and neutral magistrate - typically, a judge -- that a government official or other person planning to search people is justified in doing so.

The justification itself depends on the nature and scope of the intended surveillance. For example, if the police wish to have a surgeon cut open a suspect to look for a stray bullet from a victim's gun, more is required than if the police want to open a suspect's suitcase to look for marijuana. Generally, however, the constitutional standard is "probable cause," a phrase that roughly means good reason to believe that the search will turn up evidence of crime.

FISA, the statute that governs domestic gathering of foreign intelligence information, contains similar rules, although they are in some ways more flexible and, in other respects, more cumbersome. Notably, for our purposes, FISA creates a Foreign Intelligence Surveillance Court (the "FISA Court") made up of federal district judges, to review FISA surveillance applications.

FISA also creates a Court of Review, made up of federal judges, to hear government appeals of lower FISA Court decisions. Such appeals take place ex parte (or outside the presence of an opponent).

To carry out electronic surveillance of a U.S. citizen or permanent resident alien, FISA requires that there be "probable cause" to believe that the target is a foreign power or an agent of a foreign power. In reviewing whether to grant a surveillance order, the FISA Court judge defers to the agent seeking the warrant and reviews whether there has been "clear error" in the determination that such probable cause exists.

Importantly, the need for a warrant does not -- in either the criminal or the foreign intelligence context -- add anything substantive to the requirements for conducting surveillance. The point of requiring a warrant lies in the incentives that each actor brings to the job of judging whether there is, or is not, sufficient reason to conduct surveillance.

For an ordinary search warrant, the magistrate defers less to the police officer and decides, on her own, whether there really is "probable cause" to believe that a proposed search will uncover evidence of crime. In the case of either FISA surveillance orders or the more conventional search warrants, however, the judge does not insert an additional demand of the evidence -- he simply decides (with more or less deference) whether the officer properly did her job.

Why Require a Warrant? Looking to Incentives

A police officer is engaged in what the Supreme Court has called the "often competitive enterprise of ferreting out crime." The same, of course, could be said of security agents trying to ferret out terrorism. Therefore, an officer or agent might see probable cause where there is none. For similar reasons, people who visit a surgeon and hear the advice "let's operate" often seek a second opinion from a doctor who does not earn a living cutting people open.

A police officer is understood to have a bias in favor of searching, because her job is to be suspicious and to locate criminals. The same is true of officers conducting foreign surveillance.

A magistrate or judge, by contrast, is more likely to have the ability to look at the facts that an officer presents and to judge, somewhat independently, without the zeal that characterizes an officer on the hunt, whether there is indeed good reason to conduct surveillance. Though purely procedural, the step of requiring an officer to seek a warrant can therefore have a needed disciplinary effect on the process and may in fact save the substance of "probable cause" from being secretly and steadily diluted and ultimately eliminated.

Consider an analogous context. Imagine that a person is accused of a crime but that the arresting officer, rather than a jury, will decide whether the prosecutor has proved guilt beyond a reasonable doubt. This procedure would likely seem grossly unfair to most Americans. If the defendant is not guilty, how likely is the arresting officer to detect that fact, given her investment in the apparent guilt of someone that she has personally arrested?

To be sure, bias is not the same thing as dishonesty (although a bias can certainly give rise to dishonesty, such as when a defendant's mother provides a false alibi in an attempt to save her son from the death penalty). To be biased, simply put, is to have a set of loyalties and interests that could interfere with one's ability objectively to process and measure facts. (Most parents, for example, believe that their children are above average, but they cannot all be right).

When To Forego a Warrant

We have seen that a warrant serves the crucial function of bringing in an arbiter who is more neutral than an executive branch official, to pass on the question of whether a proposed search is justified on the facts. The warrant serves this function in the ordinary criminal investigation context, and it does so as well in the FISA context, in which the federal government wants to uncover terrorist activities and applies to the FISA Court for authorization.

But there are times when seeking a warrant may not be practical. President Bush, in responding to criticisms regarding recent revelations about warrantless monitoring since 2001, has suggested, in defense of his actions, that our current era and the "war on terror" represent, broadly, one of those times. How persuasive is that defense?

In the context of ordinary law enforcement and the U.S. Constitution, the police have authorization to avoid the requirement of a warrant for a particular search or seizure. For example, when an officer is in the "hot pursuit" of a fleeing (alleged) felon who runs into his own home, the officer may enter the house to apprehend the accused felon. In such a situation, there is no time to stop and obtain a warrant before entering the home. The officer, under these conditions, may judge on her own whether she has probable cause to go into the house and arrest the target. The U.S. Supreme Court has recognized such situations as presenting "exigent circumstances" that permit police to act without a warrant.

In the foreign intelligence surveillance area, there is a similar rule. When officials wish to monitor a telephone line for terrorist communications, for example, and the monitoring must begin before there is time to appear before the FISA Court, the Attorney General may authorize a warrantless tap, as long as he gives notice to a FISA Court judge and then applies for a warrant within 72 hours of the commencement of surveillance.

To find the president's defense of his warrantless surveillance persuasive, we accordingly must accept his claim that seeking a warrant, even under the flexible standards of FISA, is simply too burdensome in an age of terrorism. Such a claim, however, is -- on its face -- unpersuasive. Not every terrorism lead will require immediate action, and if a few hours delay is acceptable, then there should be enough time to obtain a warrant. When immediate action is necessary, moreover, it is possible -- within the confines of FISA -- to act immediately, provided that judicial review is sought within three days. The President has thus far offered no explanation for what sort of threat would preclude the seeking of even an after-the-fact warrant.

How The Attacks of 9/11 and Their Aftermath Bear On The Warrant Requirement

When pressed for an answer to such an obvious question, the President invokes national security. He suggests that the only way to survive in an age of terrorism is through secret surveillance with no accountability beyond the executive branch. The problem with such a suggestion is that it is both wrong and dangerous.

The suggestion is wrong because we now know that the problem on September 11th was not the failure to have gathered intelligence. It was the failure to read the intelligence we already had (about flight schools and planned airplane attacks on the World Trade Center towers), to which the administration had ready access. The problem, in other words, was too much -- and poorly organized -- information, rather than not enough. The continuing broad surveillance of U.S. citizens, without oversight, thus promises only to aggravate matters.

The suggestion that terrorism requires warrantless surveillance is dangerous too, because there is no stopping point to the argument that "we're doing everything, regardless of the law, to prevent the loss of life." The argument justifies unprovoked wars, torture, endless invasions of privacy, and the creation of a dictatorship the structure of whichmight come to resemble that of the very enemies from which the President wishes to protect the people of the United States.

The warrant requirement is a critical component of our democracy. Right now, it ensures that someone outside of the Bush Administration might be in a position to criticize and veto decisions that could be biased, mistaken, and ultimately fatal to the freedom that Bush and his critics alike hold dear.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.

http://writ.news.findlaw.com/lazarus/20051222.html

Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts
By EDWARD LAZARUS
----
Thursday, Dec. 22, 2005

Not so long ago, the debate over the constitutional doctrine of separation of powers in this country was a matter of fine distinctions.

In 1989, for instance, some worried that Congress' decision to have the executive put a few members of the judicial branch on the U.S. Sentencing Commission raised a separation of powers issue. These executive-appointed judges, after all, would arguably act as legislators - in that the Commission drafts the U.S. Sentencing Guidelines, for Congress' approval.

The Supreme Court, in Mistretta v. United States, approved the arrangement despite the separation-of-powers objection. But critics still worried. Yale Law Professor Stephen Carter eloquently explained why: Although permitting a few judicial officers to accept executive appointment to a non-judicial commission might not look too ominous, the Constitution's separation of powers was the nation's primary defense against tyranny. And tyranny, Carter concluded in an oft-quoted line, does not overwhelm a nation in an instant. No, he wrote, "tyranny creeps."

Lately, though, tyranny runs like a cheetah. How quaint concerns such as those of Mistretta's critics seem after the events of the last few years.

How quaint they seem, especially, after last's week revelation that President Bush has spent the last four years authorizing and re-authorizing the warrantless wiretapping of domestically originating phone calls made by American citizens, even though Congress appears to have made such wiretapping a criminal offense when it passed the Foreign Intelligence Surveillance Act (FISA) in the 1970s.

How a Bloated Executive Has Sapped Power From Congress and The Federal Courts

Over the past four years, the executive has repeatedly tried to make sure the federal courts and the legislative branch have no oversight at all as to whom it detains, on what ground, for how long, and under what conditions -- including conditions of extreme torture such as waterboarding.

The Bush Administration took power from the courts by spuriously arguing that Guantanamo detainees had no access to the Great Writ of habeas corpus - a contention that the Supreme Court handily rejected, but that kept the issue tied up in litigation for years. It would have been more honest for the Administration to suspend habeas corpus for these prisoners, and accept the brunt of public criticism for doing so.

The Bush Administration has also tried to moot cases before courts can rule on crucial issues of detention -- allowing the supposedly dangerous American citizen Yaser Hamdi to go live in Saudi Arabia, and indicting American citizen Jose Padilla on charges very different from the "dirty bomb" allegations that supposedly justified detaining him for years.

And the Bush Administration took power from Congress by acting as if the Congressionally-ratified Geneva Convention does not apply. Meanwhile, its CIA has reportedly administered a network of secret foreign prisons -- unbeknownst to the courts and, it seems, to Congress (or much of it).

Now, once again, the President has bypassed the federal courts and Congress entirely - with the Executive refusing even to avail itself of the separate, secret FISA court convened by Congress as the only entity with the power to authorize clandestine surveillance of espionage or terrorism suspects.

Importantly, the question now before the country is not some marginal blurring of lines between the three departments of government. The question is whether the Executive department will overwhelmingly dominate the other two - and, especially, the federal courts. President Bush claims Congressional leaders, at least, knew of his warrantless wiretapping, but no court was told.

The Bush Administration has taken the position that it has inherent constitutional authority to exempt itself from all legal constraint when the President invokes his commander-in-chief authority to respond to external national security threats. Surely, this position is wrong.

The Executive's Tactics: "Paper," Conceal, Trot Out the Paper

The Administration's M.O. in all such initiatives seems to be consistent. Within the Executive Branch, it uses the Department of Justice's Office of Legal Counsel - which used to serve as a neutral arbiter on questions of Executive power - as a veritable department of justification: a place where Executive Branch ideologues concoct defenses, no matter how one-sided or incomplete, for every act the President would like to undertake. It is from OLC, for instance, that the notorious torture memos came - and now, the justification for warrantless wiretaps.

In this way, the President can always claim that he was acting within his legal authority as the Justice Department itself defined it. But as the attorneys currently staffing OLC are not inclined to see any constitutional constraint on Presidential power at all, it is absurd to rely on their supposedly drawing the boundaries of the authority within which the President can operate.

In their view, there are no such boundaries. Yet they have produced lengthy analyses to "paper" this simple, incredible view, which might have been expressed in a single naked, unpersuasive sentence.

Next, the Administration shrouds its conduct in a thick veil of secrecy so that not only us ordinary folk, but even high-ranking Congressional officials will have no idea what power the President is actually exercising. And of course, the Administration has terrified potential whistleblowers through threats of investigation and prosecution. That means two more potential groups who might have argued for, or set, boundaries are silenced: Members of Congress, and the small group of those last few conscientious persons within the Administration who still believe it ought to comply with the Constitution, and are willing to say so.

Then, when the Administration's actions finally come to light, its officials trot out whatever legal justifications its lawyers have cooked up. In the past, these justifications have either been rejected by the courts (as when the Supreme Court emphatically rejected the Administration's view of its authority over enemy combatants) or exposed as astonishingly weak (as with the notorious "torture memos"). But OLC did, at least, give the Administration some paper to wave around, with lawyers' names on top.

These "legal" explanations are also invariably accompanied by an insistence that everything the Administration is doing is a necessary component of the amorphous war on terror, and that the American people can and should trust their President to do the right thing. But this argument simply can't justify the Executive's usurpation of power: After all, America has faced crises before without deciding to revert to monarchy.

The Wiretapping: Different Issue, Same Modus Operandi

This latest episode - of warrantless wiretapping - exhibits the same m.o. The Administration is not yet releasing its internal legal analysis for why the President could flout Congress's scheme for authorizing secret surveillance of terrorism suspects. But the contours of this analysis are becoming clearer.

As a first line of defense, the Administration is claiming that Congress, when it enacted its Authorization of the Use of Military Force (AUMF) in the immediate aftermath of 9/11, gave the President a free pass to end-run the FISA court.

This argument is risible. As a general matter, the law strongly disfavors such implied repeals of existing statutes: If a law is meant to decimate prior law, it ought to say that's what it's doing, and generally, it does. And especially when the prior law relates to constitutional rights - here, Fourth Amendment rights - its repeal ought to be crystal clear, so that repeal can immediately be challenged in court.

In addition, nothing in the debate over AUMF suggests that Congress had anything like the NSA surveillance program in mind when it gave Bush the go-ahead to attack Al Qaeda in Afghanistan. After all, that decision was a no-brainer, at the time. What Congressperson was gaming out what would happen years ahead? And again, where in the silence is authorization found?

By this logic, the Administration could invoke the AUMF to override pretty much any federal statute. And that's surely wrong.

Moreover, on a more specific level, Congress purposefully limited the AUMF to the use of force against persons directly connected to Al Qaeda. From what has emerged, the Administration's secret wiretapping program appears to cover a multitude of persons who would not qualify as targets under the AUMF - and, thus, the AUMF rationale falls of its own weight.

The President's real argument, however, is not based on the AUMF, but - once again -- on what he claims is his inherent constitutional powers as commander-in-chief. Here, the President's claim seems breathtaking in scope. He appears to be claiming that the President may disregard every law as he - in his own discretion - deems necessary, to fight a war on terror that has no clearly defined scope, nor any clearly defined foe, nor any knowable end point.

Furthermore, under this theory, it would appear that Congress has no power to curb the President's authority -- because the President alone has the power to define the terrorist threat and the means necessary to combat it.

This is not a constitutional design I recognize. Wasn't one of the Framers' primary concerns to avoid the concentration of such power in a king-like chief executive? Didn't the Framers believe that such a concentration of power was deeply corrupting? And hasn't history only reinforced those lessons?

Revision of the Law May Be Necessary, but Ignoring and Circumventing It Was Not

This issue, it's important to note, is not a political one, and should not be divisive. It may be that this country needs to revise its laws to respond effectively to terrorist threats - and that is the policy issue on which right and left will predictably differ, just as they have on the USA Patriot Act.

But what we all should be able to agree on, is that the Executive's simply opting to act illegally -- without even asking its own same-party Congress to change the law - is wrong.

Perhaps FISA needs to be revamped. Notably, it already contains exceptions for emergencies and the FISA court has a long history of working cooperatively with the intelligence agencies, But some say that the kind of "data mining" the government absolutely must do won't pass muster under current FISA court standards, and that therefore, FISA must be amended.

I don't know whether these claims are true; I'm willing to hear arguments on both sides. It's the missing debate on this, that is the national shame here.

Unilateral Executive Power Is Tyranny, Plain and Simple

I might even accept, for the purposes of argument, that, in the panicky aftermath of 9/11, it was understandable for the President to act unilaterally to protect against a potential second-wave attack, regardless of constitutional limits.

But over four years have passed, and there has been copious time for deliberation and, if necessary, Congressional action. In this context, it simply cannot be that the President, acting alone, has the permanent authority he now claims to override a carefully-wrought congressional scheme for fighting terrorism, and enact his own set of secret rules.

Naturally, such a scheme implicates civil liberties, as enshrined in our Constitution. It is not the President's job, alone, to make the nation's trade-offs between security and privacy. Congress ought to legislate, and if it goes too far, the Supreme Court ought to make sure its legislation stays within constitutional bounds.

But even worse, such a scheme threatens basic democratic principles. This Administration wants virtually unlimited power with essentially no accountability. I might almost be able to stomach Bush's "just trust me" claims of Executive power, if the President could be made truly accountable for his decisions down the road. But Bush wants the power with no public debate and a minimum of public disclosure.

I wouldn't trust any Administration with such a blank check. And this isn't just any Administration. It's an Administration with a deeply troubling history of mistakes and obfuscation, an Administration that seems to expand its definition of terrorism however it finds convenient, an Administration that brooks none of the internal dissent that might check authoritarian impulses.

Against that backdrop, the new revelations of warrantless wiretapping, and the Administration's latest set of explanations, sound less like a plan to fight terror than like tyranny's engines, raring to go.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

Unbelievable: Bush's Illegal Spying Could Free the Very Terror Suspects It's Jailed and Hopes to Convict

by Andy Ostroy


http://www.opednews.com

As reported in the NY Times Wednesday, several captured terror suspects with ties to Al Qaeda are planning to challenge their cases and sue the government claiming the Bush administration used illegal wiretapping in criminal prosecutions that resulted in conviction. The challenges are being mounted in Ohio, Virginia, Florida and Oregon, and including cases involving Iyman Faris, who plotted to blow up the Brooklyn Bridge.

At issue is the Busheviks' skirting of the courts and Congress in its post-911 power-grab under the guise of protecting America from the terrorist threat. Since 911, Bush, through the National Security Agency, has authorized some three dozen instances of illegal surveillance of hundreds, perhaps thousands, of U.S. and foreign citizens, both abroad and here at home. In order to have pursued his extreme terrorism and espionage spying, Bush was and is required by law to obtain warrants from the Foreign Intelligence Surveillance Court, which was established by Congress in 1978 to uphold and protect civil liberties. But Bush has defiantly thumbed his nose at FISC, declaring that his aggressive spying tactics are "fully consistent with my constitutional responsibilities and authorities."

"The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time," Bush said. "And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad."

But here's the rub: the very terrorists that sit in U.S. jails right now could be freed if their legal challenges are successful in claiming they've been denied due process and have been victims of illegal wiretapping. Incredulously, the Bushies' flagrant circumvention of the law could result in people like Faris back on the street to plot another NYC catastrophe. All because Bush refused to seek the warrants every legal scholar in America agrees he could've easily, and quickly, obtained.

So what we have is an administration run amok. There have been more requests for FISC warrants under Bush than in the last four presidential administrations before him. And most of them have been either amended or denied. So what do the Bushies do as a result? They say, 'screw you, courts, we'll just do whatever we want without you.'

One has to seriously question the ultimate motivations and intent of Bush, who willfully circumvented the legal process which he knew would not support his imperialistic pursuits. This is a very serious matter if the president intentionally broke the laws designed to protect U.S. citizens from undue search and seizure, invasion of privacy, and illegal government intrusion. We live in a society based on the rule of law; of checks and balances. In their quest to achieve supreme, unlimited power and create the first totalitarian regime in American history, the Busheviks blatantly disregard these sacred governing principles, and in the process, have actually made our nation less safe and secure, not more.


www.OstroyReport.blogspot.com

Andy Ostroy, theostroyreport@aol.com, a NYC-based 45-year-old entrepreneur and political commentator, is an aggressive counter to the Bush administration, the Republican Party and the powerful right wing media machine. Our mission is to do whatever possible to help Democrats take back the House and Senate in 2006 and win back the White House in '08. http://www.ostroyreport.blogspot.com/

Back to Story - Help
Lawyers Question Evidence in Terror Case By TONI LOCY, Associated Press Writer
7 minutes ago



Lawyers for an Islamic scholar and a Fort Lauderdale computer programmer want federal judges to determine whether evidence used against their clients was gathered by a secret domestic spying program.

Jonathan Turley, a George Washington University law professor, said Wednesday there "seems to be a great likelihood" that Ali al-Timimi, a northern Virginia Islamic cleric convicted for exhorting followers after the Sept. 11 attacks to wage war against U.S. troops overseas, was "subject to this operation."

Attorney Kenneth Swartz of Miami said he wants to know whether any evidence was gathered by the National Security Agency without a warrant and used to convince a secret court to authorize six years of wiretaps of his client, Adham Amin Hassoun.

Last month, Hassoun and Jose Padilla, a U.S. citizen held for nearly four years as an "enemy combatant," were charged with raising money to support violent Islamic fighters outside the United States.

President Bush has acknowledged that within days of the Sept. 11 attacks he authorized the NSA to conduct warrantless intercepts of conversations between people in the United States and others abroad who had suspected ties to al-Qaida or its affiliates.

In doing so, the administration bypassed the nearly 30-year-old secret Foreign Intelligence Surveillance Act court established to oversee the government's handling of espionage and terrorism investigations.

Turley already has appealed the case to the Richmond-based 4th U.S. Circuit Court of Appeals, asking that al-Timimi's conviction and life sentence be overturned. Turley argued that the prosecution was a violation of al-Timimi's free speech rights. His conviction was based on statements he made at a dinner days after the Sept. 11 attacks at which he urged several young Muslim men to join the Taliban and fight U.S. troops overseas.

Al-Timimi's lawyer said he recently has contacted federal prosecutors in Alexandria, Va., where a jury convicted al-Timimi in April, seeking their cooperation in asking the appeals court to return the case to U.S. District Judge Leonie Brinkema. She presided over al-Timimi's monthlong trial.

Brinkema could determine whether NSA-gathered evidence was used against al-Timimi, without the court being told, Turley said. She also could press the government to reveal whether it withheld evidence gathered by the NSA that could have helped al-Timimi's defense, he said.

If prosecutors decline to go along, Turley said, he will file a request next week asking the appeals court to send the case back to Brinkema.

Prosecutors probably did not know about the domestic spying program, Turley said. "It's possible that prosecutors had no idea of the origin of this evidence."

In Hassoun's case, the FISA court was not bypassed. The secret court approved wiretaps of Hassoun from 1994 to 2000, Swartz said.

Before the NSA spying program's existence was revealed, Swartz said, he had planned to challenge the legality of the FISA wiretaps. He said his challenge, to be filed in the next week or two, also will ask a federal judge in Miami to determine whether the FISA court was misled with evidence that it had not been told had been gathered secretly by the NSA.

White House spokesman Trent Duffy said Wednesday that the administration would not comment on pending cases. "I don't think it should serve as any surprise that defense attorneys are looking for ways to represent their clients," he said. "That's what defense attorneys do."




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Padilla Lawyers Link Case to Wiretapping ProbeArguments Part of Supreme Court Filing
Lawyers for Jose Padilla are arguing that his case could be related to possible illegal wiretapping by the National Security Agency. (ABCNEWS.com)

Dec. 28, 2005 — Lawyers for "dirty bomb" suspect Jose Padilla have filed a brief with the Supreme Court urging it to take Padilla's case, linking it to the National Security Agency wiretapping controversy.

The brief, filed yesterday, uses strong language against the government for its treatment of Padilla, who was arrested as an "enemy combatant" in June 2002 and indicted by a federal grand jury last month.

"The government continues to defend this sweeping view of the president's power to substitute military rule for the rule of law," the brief states, "and seeks now to expand it further, arguing that the very authorities that it says justify the indefinite detention without charge of citizens also justify widespread spying on citizens without judiciary warrant or congressional notification."

The filing further states: "The government's most recent move is only the latest in a series of strategic maneuvers calculated to insulate its treatment of detainees in the 'war on terror' from judicial review. The government has now changed its story about Padilla for the fourth time in three years."

The filing comes a week after a federal appeals court refused a Bush administration request to transfer Padilla from military to civilian custody to stand trial on terrorism charges. The Dec. 21 ruling from the Fourth Circuit Court of Appeals suggested that the judges were concerned about the appearance that the Justice Department was trying to prevent the Supreme Court from reviewing an earlier ruling from the Fourth Circuit that Bush has the authority to detain Padilla, an American citizen, indefinitely without trial as an enemy combatant.

The New York Times reported today that other defense lawyers in terrorism cases say they plan to bring legal challenges to determine if the NSA illegally used wiretaps to gather evidence against Muslim men with ties to al Qaeda.

The indictment naming Padilla and four others was unsealed in November after it was returned by a federal grand jury in Miami. While the charges allege Padilla was part of a U.S.-based terrorism conspiracy, they do not include the government's earlier allegations that he planned to carry out attacks in America.

"The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting a violent jihad," Attorney General Alberto Gonzales said at a news conference. Gonzales declined to comment on why none of the allegations involving attacks in America were included in the indictment.

Padilla, a Brooklyn-born Muslim convert, had been held as an enemy combatant in Defense Department custody. The Bush administration had resisted calls to charge and try him in civilian courts.


ABC News' Ariane DeVogue contributed to this report.

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Apparently, this is a link to a partial list of protests that the Pentagon was tracking as threats.

http://msnbcmedia.msn.com/i/msnbc/sections...baseTracker.pdf

Or for the link-averse:
msnbcmedia.msn.com/i/msnbc/sections/news/DODAntiWarProtestDatabaseTracker.pdf

http://www.msnbc.msn.com/id/10628591/

This was regarding MSNBC Hardball today and yesterday.

C-span has played this speech several times this week and last weekend. Check the schedule; it may come on again. Or watch it online at http://www.c-span.org

Republican Bob Barr doesn't buy Bush's excuses either

http://www.commongroundcommonsense.org/for...T&f=228&t=45982

Letters to the editor: 12/24/05
Saturday, December 24, 2005
Pittsburgh Post-Gazette
http://www.post-gazette.com/pg/05358/627331.stm

The president and his advisers need a civics refresher

Regarding "President Fiercely Defends Wiretaps," (Dec. 20): After the indictment of Vice President Cheney's chief of staff Lewis "Scooter" Libby was announced, President Bush reportedly ordered White House personnel to take refresher instruction in ethics. With the revelation last week of the extralegal surveillance authorization that the president granted the National Security Agency, which in effect circumvented the Foreign Intelligence Surveillance Act of 1978, some additional classes might be in order.

How about a remedial course in Civics 101, held in the West Wing and mandatory from the top down?

It would appear that the president and his legal advisers played hooky in their formative education from classes that dealt with constitutional separation of powers and checks and balances, and this void suggests a deep-seated ignorance of the document we as Americans hold so dear.

Ever mindful of the need to be vigilant to thwart potential enemies who would threaten our national security, nothing justifies, even in the service of misdirected zeal, breaking of the law, especially by one sworn to uphold it.

Like the kid caught with his hand swelled with cookies in the cookie jar (read power grab), the abrogation of a law by secret fiat further defines the singular characteristic of this administration -- the overreach.

JIM HOHMAN
Shadyside
--------------------------------------------------------------------------------
Limitless Bush

It's always interesting to watch the president wax indignant following public exposition of another indignant corruption of our democratic principles by his White House.

His on-screen fulminations seem like well-staged sleight-of-hand to me. While we watch him froth about the beauty of illegal wiretapping, or stand untroubled by taxpayer-funded American torture, or continue to lie to us for our own good about something like what we should die for, the real stuff is happening off camera.

He's not really upset, or worried. He's just buying time for his boys to roll out Plan B, and get busy on Plan C, in case some joker has the nerve to start nosing around B.

The bottom line is, when honesty, integrity and the law are not obstacles, the sky's the limit in the pursuit of your agenda. This president considers the sky his limit.

C. DOUGHERTY
Mt. Lebanon

Political cartoon
Editorial cartoon: Tim Menees
Monday, December 19, 2005

http://www.post-gazette.com/images3/20051219tim.gif

Political cartoon
Naughty Prez
Tuesday, December 20, 2005
Rob Rogers

http://www.post-gazette.com/images3/122005...ghty%20Prez.gif

Editorial: Bugged / Bush's eavesdroppers must follow the law

Monday, December 26, 2005
Pittsburgh Post-Gazette
http://www.post-gazette.com/pg/05360/627766.stm

Americans' reaction to the fact that the Bush administration has been bugging their phone calls and e-mail messages for the past three years, outside the law, is provoking increasing fury among the public and in the Congress. It was surely an element in the Congress's decision to extend the USA Patriot Act only until Feb. 3.

It started out that the National Security Agency was intercepting calls between the United States and overseas. Then it turned out that NSA was also "accidentally" picking up some calls taking place purely within the United States. It really doesn't matter anyway, in a sense. The prohibitions governing such intercepts are supposed to apply to American citizens everywhere, so what about an American mother in the United States telephoning her American son in London? Is it legal for the NSA to listen to that call without a court order?

First, Americans were told that perhaps there had been 30 such intercepts undertaken on the orders of President Bush without the required authorization by the Foreign Intelligence Surveillance Act court. Now it turns out, in a separate matter, that NSA and the FBI have conducted surveillance and intelligence-gathering operations on advocacy groups like People for Ethical Treatment of Animals and Greenpeace. The FBI said it was not monitoring political operations but rather criminal or violent activity at public protests.

Perhaps the only way the Bush administration could possibly convince the American people that its activities are reasonable, even if they are not legal, would be to release a list of those persons whose phone calls and e-mails are being intercepted by NSA.

But the administration can't or won't release those names, claiming security concerns. Or at least that is what it is saying. Could it also be that the list of those bugged contains names of Bush administration political critics? Sen. Russell Feingold must wonder; so must Rep. Nancy Pelosi.

Now James Robertson, a federal district court judge, has resigned from the FISA court, indicating a lack of confidence in the process he was dignifying by his participation.

Members of Congress who were assigned oversight of the NSA's bugging program, including Democratic Sen. John D. Rockefeller of West Virginia and Senate Minority Leader Harry Reid of Nevada, have expressed concern and resentment about what the Bush administration did, ostensibly under the Congress's oversight. Briefings by Vice President Dick Cheney, they said, were short, elliptical and not in writing as the law requires.

Sen. Arlen Specter, the Pennsylvania Republican who chairs the Judiciary Committee, has scheduled hearings in the new year on the administration's surveillance activities to consider their legality, following hearings on the Supreme Court nomination of Judge Samuel A. Alito, Jr.

That is not good enough or soon enough. The first step is that NSA should be forced -- by court order, if necessary -- to observe the Foreign Intelligence Surveillance Act, conducting no further intercepts without appropriate clearance by the FISA court. Secondly, the Department of Defense should be instructed to destroy immediately its entire database of information collected on American protesters that is older than three months, as required.

In other words, stop bugging and stop keeping files on American citizens. Then the Congress can examine with greater care the propriety and legality of the administration's domestic surveillance activities since 2002.

Take a poll here. This poll is being promoted by a few neocon blogs like Power Line, and a Progressive response would seem appropriate.

Bush was denied wiretaps, bypassed them

By United Press International

U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.
http://www.informationclearinghouse.info/article11396.htm

===
Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts

By ERIC LICHTBLAU and JAMES RISEN

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.
http://www.informationclearinghouse.info/article11395.htm

http://seattlepi.nwsource.com/national/253...tml?source=mypi

Secret court modified wiretap requests
Intervention may have led Bush to bypass panel

By STEWART M. POWELL
SEATTLE POST-INTELLIGENCER WASHINGTON BUREAU

WASHINGTON -- Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

"They wanted to expand the number of people they were eavesdropping on, and they didn't think they could get the warrants they needed from the court to monitor those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency" and "The Puzzle Palace: Inside America's Most Secret Intelligence Organization." "The FISA court has shown its displeasure by tinkering with these applications by the Bush administration."

Bamford offered his speculation in an interview last week.

The 1978 Foreign Intelligence Surveillance Act, adopted by Congress in the wake of President Nixon's misuse of the NSA and the CIA before his resignation over Watergate, sets a high standard for court-approved wiretaps on Americans and resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.



The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.

Attorney General Alberto Gonzales said last week that Bush authorized NSA surveillance of overseas communications by U.S.-based terror suspects because the FISA court's approval process was too cumbersome.

The Bush administration, responding to concerns expressed by some judges on the 11-member panel, agreed last week to give them a classified briefing on the domestic spying program. U.S. District Judge Malcolm Howard, a member of the panel, told CNN that the Bush administration agreed to brief the judges after U.S. District Judge James Robertson resigned from the FISA panel, apparently to protest Bush's spying program.

Bamford, 59, a Vietnam-era Navy veteran, likens the Bush administration's domestic surveillance without court approval to Nixon-era abuses of intelligence agencies.

NSA and previous eavesdropping agencies collected duplicates of all international telegrams to and from the United States for decades during the Cold War under a program code-named "Shamrock" before the program ended in the 1970s. A program known as "Minaret" tracked 75,000 Americans whose activities had drawn government interest between 1952 and 1974, including participation in the anti-war movement during the Vietnam War.

"NSA prides itself on learning the lessons of the 1970s and obeying the legal restrictions imposed by FISA," Bamford said. "Now it looks like we're going back to the bad old days again."

U.S. Says It Didn't Target Muslims
Mosques Among Sites Monitored For Radiation

By Mary Beth Sheridan
Washington Post Staff Writer
Thursday, December 29, 2005; B01



Faced with angry complaints, U.S. officials defended an anti-terrorism program yesterday that secretly tested radiation levels around the country -- including at more than 100 Muslim sites in the Washington area -- and insisted that no one was targeted because of his or her faith.

One official knowledgeable about the program explained that Muslim sites were included because al Qaeda terrorists were considered likely to gravitate to Muslim neighborhoods or mosques while in the United States.

"If you were looking [for] the needle in a haystack, that's the haystack you would look at," the official said, speaking on condition of anonymity because the program is classified. "You'd look at the [likely] targets and the places the operators were."

No indications of radiation were found at the businesses, homes, warehouses or mosques that were included in the program. The official said that radiation monitoring of the Muslim sites started after the Sept. 11, 2001, attacks and lasted through 2003.

The focus on the Muslim sites, which was first reported last week by U.S. News & World Report, has stunned and angered officials at mosques and Muslim and Arab-American organizations. Two such groups have filed Freedom of Information requests, known as FOIAs, in recent days to try to learn which sites were monitored. They also have requested meetings with the FBI, which ran the program along with the Energy Department.

"The problem [is] . . . it further gives the Muslim community a sense they are suspect, they are under the gun," said Ahmed Younis, national director of the Muslim Public Affairs Council.

Michael A. Mason, who oversees the Washington Field Office of the FBI, said in an interview that he hoped to meet next week with the groups.

"We have not violated the law; we have not violated the Constitution; we have not gone on private property," Mason said. He said that he could provide few details because the program remains classified but added that the monitoring devices involved were "passive," roughly akin to holding a thermometer out the window of a moving car to measure the temperature.

"It's not like thermal-imaging a house, where you're trying to figure out if they're trying to grow marijuana," he said.

Officials emphasized that Washington wasn't the only place where the program operated. Nor were Muslim sites the only focus: The program included airports, buildings and monuments that were considered possible targets for a terrorist attack, said the official familiar with the program who spoke on condition of anonymity.

"There was no more intensive focus on D.C. than there was on several other cities," he said.

The testing began several months after the Sept. 11, 2001, attacks, when a series of events had convinced U.S. officials that another terrorist attack was imminent, the official said. Jose Padilla, a U.S. citizen, was arrested in May 2002 on suspicion of planning an attack with a radiological dirty bomb; Osama bin Laden was threatening to strike again.

In addition, documents discovered in Afghanistan indicated that terrorists could possibly use a U.S. mosque to hide radioactive material, said Jack Cloonan, a former FBI counterterrorism agent.

Cloonan, who earlier was interviewed by ABC News about the program, said it was not clear which mosques might have been considered.

The official familiar with the program acknowledged that "now it sounds like a crazy thing. But at the time it didn't sound like a very crazy thing. . . . All the intel was saying, 'An attack is coming, it's likely to be al Qaeda, likely to be launched in a U.S. city, likely to involve a dirty device'. . . . Where would you go looking for that?"

Authorities determined that in the past, al Qaeda terrorists or people close to them tended to live in Muslim neighborhoods or attend local mosques, the official said. That's how some sites became included in a program, he said. Other sites were chosen because of specific intelligence information.

Most of the testing was apparently done from nearby streets. But, according to U.S. News & World Report, in as much as 15 percent of the cases, officials had to go onto private property, such as mosque parking lots and private driveways, to get accurate readings.

Officials involved with the program said no warrants were needed because they were in public access areas. But some Muslim activists said they were concerned.

"We'd like our federal law enforcement agencies to know the American Muslim community stands firmly behind protecting our nation's borders," said Arsalan Iftikhar, legal director of the Council on American-Islamic Relations, one of the groups that are seeking the addresses of the sites involved. "But, at the same time, we are not willing to give up our guaranteed constitutional and legal rights in order to do that."

He said his group constantly received phone calls from Muslims who believed they were under surveillance. But none had specifically mentioned possible radiation testing.

U.S. News & World Report said that some officials believed the program, which involved property occupied or owned by U.S. citizens, was legally questionable. It quoted one unidentified source as saying that participants who complained "nearly lost their jobs."

Mason said that did not occur in the local FBI office.

"No one in the Washington Field Office would ever be so threatened," he said. "Never."

© 2005 The Washington Post Company

http://news.independent.co.uk/world/americ...ticle335477.ece

Terrorism cases in US may be reopened after wiretap scandal
By Rupert Cornwell in Washington
Published: 29 December 2005
Defence lawyers in several terrorism cases in the United States are planning to appeal against the convictions of their clients on the ground that evidence may have been garnered from illegal wiretapping by a federal government surveillance agency.

The threat is the latest repercussion of the disclosure two weeks ago that the Bush administration had used the National Security Agency (NSA) - supposed to go after foreign targets - to conduct electronic surveillance without warrants inside the US, and against American citizens.

Among the cases is that of Ali al-Timimi, a Muslim scholar, who is serving a life sentence for involvement with an alleged "Virginia jihad" cell, and for inciting his students to wage war overseas against the US.

Edward McMahon, Timimi's lawyer, told The New York Times he always had doubts about the explanation offered by federal investigators of how they came to suspect his client of links with terrorism. "The case against a lot of these guys just came out of nowhere because they were really nobodies. It makes you wonder whether they were being tapped."

The focus of the appeals would be on whether prosecutors misled the courts about the source of some evidence, and whether the authorities held back other NSA wiretaps suggesting that individuals charged might be innocent.

The NSA programme was revealed by The New York Times. Opponents said it was a blatant violation of civil liberties, but the White House insisted it was an essential tool in the fight against terrorism.

President George Bush has defended the wiretaps and said that the leak concerning their use was "shameful".

The debate is set to continue in the new year - assuming that Arlen Specter, the Pennsylvania Republican who heads the Senate Judiciary Committee, goes ahead with his threat to hold hearings on the eavesdropping when Congress reconvenes next month.

Not only Democrats but several senior Republicans have expressed unease at the way the NSA has been used to bypass a federal court set up in 1978 to authorise warrants for clandestine wiretaps. One of the court's 10 judges resigned in protest, while its chief has demanded a full briefing from the administration on why it had been cut out of the process.

The affair has complicated Bush administration efforts to extend the Patriot Act, the anti-terror law passed by Congress in the wake of the 9/11 attacks. Key provisions of the Act that were to expire at the end of 2005 have been granted only a one-month extension, despite angry complaints from Mr Bush.

The White House maintains that speed is of the essence in combating terrorism, and that NSA domestic surveillance had been sparingly used. It was "designed to monitor calls from very bad people to very bad people," an official told The New York Times.

But for many Americans, the very notion of intelligence agencies eavesdropping on domestic targets raises the spectre of Watergate, "dirty tricks," and how Richard Nixon used the CIA to snoop on his political opponents.

There are also profound constitutional implications. Many experts see the episode as more proof of how Mr Bush, urged on by Vice-President Dick Cheney, is relentlessly expanding the power of the executive, freeing it from the fetters of Congress. For that reason, reopening the cases could be very difficult, some analysts say - even in cases where mistakes have been made.

The victim of one such error was Brandon Mayfield, an Oregon lawyer who was wrongly arrested in connection with the March 2004 Madrid train bombings before being released. Mr Mayfield is now suing the government and is likely to raise the NSA wiretapping issue.

Meanwhile, the independent watchdog body that oversees the CIA is investigating up to 10 cases where suspected terrorists may have been handed over in error by the agency to foreign governments, under the contested "rendition" programme. The practice pre-dates 11 September 2001, but after the attacks on New York and Washington, President Bush gave the CIA authority to act without case-by-case approval by the government. Some 100 to 150 people have been targets, either arrested in the US or snatched from the streets of a foreign city and handed back to their home country for questioning - frequently, it is said, for torture.

Defence lawyers in several terrorism cases in the United States are planning to appeal against the convictions of their clients on the ground that evidence may have been garnered from illegal wiretapping by a federal government surveillance agency.

The threat is the latest repercussion of the disclosure two weeks ago that the Bush administration had used the National Security Agency (NSA) - supposed to go after foreign targets - to conduct electronic surveillance without warrants inside the US, and against American citizens.

Among the cases is that of Ali al-Timimi, a Muslim scholar, who is serving a life sentence for involvement with an alleged "Virginia jihad" cell, and for inciting his students to wage war overseas against the US.

Edward McMahon, Timimi's lawyer, told The New York Times he always had doubts about the explanation offered by federal investigators of how they came to suspect his client of links with terrorism. "The case against a lot of these guys just came out of nowhere because they were really nobodies. It makes you wonder whether they were being tapped."

The focus of the appeals would be on whether prosecutors misled the courts about the source of some evidence, and whether the authorities held back other NSA wiretaps suggesting that individuals charged might be innocent.

The NSA programme was revealed by The New York Times. Opponents said it was a blatant violation of civil liberties, but the White House insisted it was an essential tool in the fight against terrorism.

President George Bush has defended the wiretaps and said that the leak concerning their use was "shameful".

The debate is set to continue in the new year - assuming that Arlen Specter, the Pennsylvania Republican who heads the Senate Judiciary Committee, goes ahead with his threat to hold hearings on the eavesdropping when Congress reconvenes next month.

Not only Democrats but several senior Republicans have expressed unease at the way the NSA has been used to bypass a federal court set up in 1978 to authorise warrants for clandestine wiretaps. One of the court's 10 judges resigned in protest, while its chief has demanded a full briefing from the administration on why it had been cut out of the process.
The affair has complicated Bush administration efforts to extend the Patriot Act, the anti-terror law passed by Congress in the wake of the 9/11 attacks. Key provisions of the Act that were to expire at the end of 2005 have been granted only a one-month extension, despite angry complaints from Mr Bush.

The White House maintains that speed is of the essence in combating terrorism, and that NSA domestic surveillance had been sparingly used. It was "designed to monitor calls from very bad people to very bad people," an official told The New York Times.

But for many Americans, the very notion of intelligence agencies eavesdropping on domestic targets raises the spectre of Watergate, "dirty tricks," and how Richard Nixon used the CIA to snoop on his political opponents.

There are also profound constitutional implications. Many experts see the episode as more proof of how Mr Bush, urged on by Vice-President Dick Cheney, is relentlessly expanding the power of the executive, freeing it from the fetters of Congress. For that reason, reopening the cases could be very difficult, some analysts say - even in cases where mistakes have been made.

The victim of one such error was Brandon Mayfield, an Oregon lawyer who was wrongly arrested in connection with the March 2004 Madrid train bombings before being released. Mr Mayfield is now suing the government and is likely to raise the NSA wiretapping issue.

Meanwhile, the independent watchdog body that oversees the CIA is investigating up to 10 cases where suspected terrorists may have been handed over in error by the agency to foreign governments, under the contested "rendition" programme. The practice pre-dates 11 September 2001, but after the attacks on New York and Washington, President Bush gave the CIA authority to act without case-by-case approval by the government. Some 100 to 150 people have been targets, either arrested in the US or snatched from the streets of a foreign city and handed back to their home country for questioning - frequently, it is said, for torture.

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

December 29, 2005
Spy Agency Removes Illegal Tracking Files
By THE ASSOCIATED PRESS
By The Associated Press The National Security Agency's Internet site has been placing files on visitors' computers that can track their Web surfing activity despite strict federal rules banning most files of that type.

The files, known as cookies, disappeared after a privacy activist complained and The Associated Press made inquiries this week. Agency officials acknowledged yesterday that they had made a mistake.

Nonetheless, the issue raised questions about privacy at the agency, which is on the defensive over reports of an eavesdropping program.

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

Until Tuesday, the N.S.A. site created two cookie files that do not expire until 2035.

Don Weber, an agency spokesman, said in a statement yesterday that the use of the so-called persistent cookies resulted from a recent software upgrade.

Normally, Mr. Weber said, the site uses temporary cookies that are automatically deleted when users close their Web browsers, which is legally permissible. But he said the software in use was shipped with the persistent cookies turned on.

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

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

Privacy advocates point out that cookies can also track Web surfing, even if no personal information is collected.

In a 2003 memorandum, the Office of Management and Budget at the White House prohibited federal agencies from using persistent cookies - those that are not automatically deleted right away - unless there is a "compelling need."

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

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

Daniel Brandt, a privacy activist who discovered the N.S.A. cookies, said mistakes happen, "but in any case, it's illegal."

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

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

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



Copyright 2005The New York Times Company

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

December 29, 2005
NSA Web Site Puts 'Cookies' on Computers
By THE ASSOCIATED PRESS
Filed at 12:11 a.m. ET

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



Copyright 2005 The Associated Press

http://www.lahontanvalleynews.com/article/...inion/112260005

It's my party and I'll spy if I want to
By Glen McAdoo

"Now, by the way, any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order. 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"- George W. Bush April 20, 2004.

At the very time of that statement, George W. Bush was personally overseeing wiretaps without any court orders.

For all of you who still claim this president doesn't lie, this must come as a shock. For the rest of us it just comes as another "we told you so." He admitted as much the other day when he vowed to continue the practice of spying on American citizens whom he suspects may have ties to Al Qaeda.

The problem is, who is deciding just what amounts to "ties to Al Qaeda?" Not the courts. George W. Bush is above the law. He and he alone will decide. Okay, he may consult with a crony or two. As Richard Nixon once said, "if the president does it, it can't be illegal." Right, George?

How times have changed. With a few exceptions, the most outspoken Republicans who were screaming for the head of Bill Clinton for lying about an extra-marital encounter, claiming no one was above the law, are singing a different tune now that it's their guy who seems to believe he is above the law.

This is the president who assured Americans that Saddam Hussein had ties to Al Qaeda, the same one who assured us that Iraq possessed weapons of mass destruction and told America that Saddam Hussein was attempting to get nuclear material from Niger. He was wrong then. He may have lied then.

Are you sure those Americans he is spying on have ties to Al Qaeda? I'm not. That just might explain the secret nature of this spying. After all it is this administration that has the FBI spying on Greenpeace and PETA. Darn tree hugging and animal loving subversives!

It makes no sense. President Bush can easily get court approval to allow the National Security Agency to spy on suspected terrorists collaborators. In 1978, Congress passed the Foreign Intelligence Surveillance Act, which established a secret court. One of its judges has now resigned, apparently in protest of President Bush's actions. Since its establishment it has granted more than 19,000 requests for warrants, usually within hours, while denying only five. What is George W. Bush afraid of?

What about emergencies, you ask? We might need to act quickly, you say. In such a case the president can go ahead without a warrant so long as he gets approval of the court within 72 hours.

Again, the president's actions make no sense unless he is conducting spying activities that he has reason to believe the court would not allow. That is not only scary it is downright criminal.

The president's explanation continues to baffle most Americans. He claims that on numerous occasions congress was informed, as if that makes it alright. Eight members were briefed, but having been sworn to secrecy, they couldn't publicly object without breaking the law themselves and being subjected to criminal charges. This is not the congressional oversight required by law.

Laughable is his claim that it must be constitutional because he raised his hand and swore to uphold the Constitution. It is downright frightening that he thinks that his duties as president, as spelled out in the Constitution, allow him to Willy- Nilly disregard other provisions of the Constitution protecting civil liberties and personal freedoms that he believes might hinder him from conducting business as he sees fit.

Okay all you conservatives out there who have mistakenly claimed that all liberals want to take away your guns --try this on for size. President Bush's (hardly a liberal) interpretation of the Constitution would give him the power to disregard the Second Amendment, come into you home without a warrant, and take away your guns because he had intelligence that you might have ties to Al Qaeda. Oh, you don't have ties to Al Qaeda? Well shut my mouth, you mean the president's intelligence was faulty? Sorry, it's your word against his. Maybe you trust this president's intelligence, but I wouldn't if I were you. I don't.

Bob Barr, one of the most conservative Republican members of congress when he was on the hill, had this to say; "What's wrong with it is several-fold. One, it's bad policy for our government to be spying on American citizens through the National Security Agency. Secondly, it's bad to be spying on Americans without court oversight. And thirdly, it's bad to be spying on Americans apparently in violation of federal laws against doing it without a court order."

I'm sure most columnists and editors have, or will have, something to say about President Bush's spying on American citizens. They should. Now is the time for every American to stand up and be counted. Let the investigation begin and, if warranted, let the impeachment proceedings commence.

http://news.baou.com/main.php?action=recent&rid=20709

Muslim Group Files FOIA Request on Radiation Monitoring of Muslim Sites

http://www.thestate.com/mld/thestate/13502038.htm

NSA inadvertently uses banned data-tracking ``cookies'' at Web siteNEW YORK

(AP) - The National Security Agency's Internet site has been placing files on visitors' computers that can track their Web surfing activity despite strict federal rules banning most of them.
These files, known as ``cookies,'' disappeared after a privacy activist complained and The Associated Press made inquiries this week, and agency officials acknowledged Wednesday they had made a mistake.
Nonetheless, the issue raises questions about privacy at a spy agency already on the defensive amid reports of a secretive eavesdropping program in the United States.
``Considering the surveillance power the NSA has, cookies are not exactly a major concern,'' said Ari Schwartz, associate director at the Center for Democracy and Technology, a privacy advocacy group in Washington, D.C. ``But it does show a general lack of understanding about privacy rules when they are not even following the government's very basic rules for Web privacy.''
Until Tuesday, the NSA site created two cookie files that do not expire until 2035 -- likely beyond the life of any computer in use today.
Don Weber, an NSA spokesman, said in a statement Wednesday that the cookie use resulted from a recent software upgrade. Normally, the site uses temporary, permissible cookies that are automatically deleted when users close their Web browsers, he said, but the software in use shipped with persistent cookies already on.
``After being tipped to the issue, we immediately disabled the cookies,'' he said.
Cookies are widely used at commercial Web sites and can make Internet browsing more convenient by letting sites remember user preferences. For instance, visitors would not have to repeatedly enter passwords at sites that require them.
But privacy advocates complain that cookies can also track Web surfing, even if no personal information is actually collected.
In a 2003 memo, the White House's Office of Management and Budget prohibits federal agencies from using persistent cookies -- those that aren't automatically deleted right away -- unless there is a ``compelling need.''
A senior official must sign off on any such use, and an agency that uses them must disclose and detail their use in its privacy policy.
Peter Swire, a Clinton administration official who had drafted an earlier version of the cookie guidelines, said clear notice is a must, and `vague assertions of national security, such as exist in the NSA policy, are not sufficient.''
Daniel Brandt, a privacy activist who discovered the NSA cookies, said mistakes happen, ``but in any case, it's illegal. The (guideline) doesn't say anything about doing it accidentally.''
The Bush administration has come under fire recently over reports it authorized NSA to secretly spy on e-mail and phone calls without court orders.
Since The New York Times disclosed the domestic spying program earlier this month, President Bush has stressed that his executive order allowing the eavesdropping was limited to people with known links to al-Qaida.
But on its Web site Friday, the Times reported that the NSA, with help from American telecommunications companies, obtained broader access to streams of domestic and international communications.
The NSA's cookie use is unrelated, and Weber said it was strictly to improve the surfing experience ``and not to collect personal user data.''
Richard M. Smith, a security consultant in Cambridge, Mass., questions whether persistent cookies would even be of much use to the NSA. They are great for news and other sites with repeat visitors, he said, but the NSA's site does not appear to have enough fresh content to warrant more than occasional visits.
The government first issued strict rules on cookies in 2000 after disclosures that the White House drug policy office had used the technology to track computer users viewing its online anti-drug advertising. Even a year later, a congressional study found 300 cookies still on the Web sites of 23 agencies.
In 2002, the CIA removed cookies it had inadvertently placed at one of its sites after Brandt called it to the agency's attention.
email thisprint this

http://www.villagevoice.com/generic/show_p...mcmaWQ9NzEzMjU=

Press Clips
Checks and No Balance
The story is Bush's spying, not the story's messenger

by Sydney H. Schanberg
December 27th, 2005 11:42 AM

The domestic spying controversy is a story of immense importance. President Bush, by secret directive a few months after 9-11, allowed the National Security Agency, restricted by law to monitoring only foreign communications, to carry out a domestic spying program as well. This directive, now uncovered, is the latest clear confirmation that the president has been conferring more power on himself—without any checks or balances by Congress or the judicial system.
While previous presidents have at various times claimed the legal right to authorize searches and electronic surveillance without court warrants so as to gather foreign intelligence, those decisions have undergone scrutiny by either courts or congressional hearings.

It's fair to say that Bush had no intention of allowing public scrutiny of his act, since he personally summoned the top executives of The New York Times to a private meeting on December 6 and pressured them not to run the story about the domestic spying. The paper had held the story for a year at the administration's pleading but decided, after second thoughts and more reporting, that its importance required publication. It appeared on the Times' front page on Friday, December 16.

Some Bush supporters have attacked the Times for running the piece. On the other hand, some journalists have attacked theTimes for holding it for a year. From where I stand (I'm a Times alumnus), the paper should get credit for digging it out and publishing it. But whatever one's journalistic point of view, the Times' decision-making is not the central story here. The president's secret directive is.

The president and others in his White House said the leak of his decision to bypass existing law was a serious national security matter and hinted at an investigation. They argued that the existing Foreign Intelligence Surveillance Act (FISA), which requires court warrants and does not allow domestic spying by the National Security Agency, was not designed for an era of terrorism.

Since 9-11, Bush and his inner circle have insisted vehemently that all of the administration's anti-terrorism acts at home and overseas have been done in accordance with U.S. law and the Constitution.

But listen carefully to the president's own earlier statements, keeping in mind that the domestic spying operation has been in effect since early 2002.

On April 19, 2004, in Hershey, Pennsylvania, Bush said, speaking of anti-terrorism wiretapping: " . . . Everything you hear about [wiretapping] requires [a] court order, requires there to be permission from a FISA court, for example." Of note: A member of the FISA court just resigned from the 11-member federal panel in protest against Bush's secret domestic-spying program. The Washington Post reported that U.S. District Judge James Robertson sent his resignation letter to Chief Justice John Roberts on December 19.

On April 20, 2004, in Buffalo, New York, Bush said: "Any time you hear the United States government talking about wiretap, it requires—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."

On December 16, 2005, the day the Times story appeared, the president—interviewed on Jim Lehrer's NewsHour—would not discuss his domestic-spying directive ("We . . . don't talk about ongoing intelligence operations"). "But," he said, "it's important for the American people to understand that we will do—or I will use my powers to protect us, and I will do so under the law."

All the president's above statements about observing the court-order requirement and thus acting "under the law" would appear to be false.

They are false by the same measure that showed his weapons-of-mass-destruction claims to be false—after he misled the nation into war. And what about the misdirections and untruths the White House has promulgated about secret CIA prisons on foreign soil, or about violations of the Geneva Conventions against torture of prisoners, or about an operational link between Al Qaeda and Saddam Hussein, or about blaming the press for alerting Osama bin Laden to U.S. electronic surveillance techniques when the information has been in the public domain for years?

The lies—after all, that's what they really are—have become so numerous that reasonable people are beginning to hear echoes of the Nixon presidency and impeachment. Think about all those rosy "trust me" speeches Bush has been delivering.

As for his drumbeat claims that he is honoring the Constitution and the nation's laws, then why did a FISA judge resign, and why are his colleagues now demanding intelligence briefings on the president's secret sidestepping of their jurisdiction? Why are moderate Republicans leaving Bush's side over these issues—all of which have their origin in the president's self-expansion of power as he devised the invasion and ongoing war in Iraq?

George Bush and his ultra-conservative Republicans didn't invent the art of presidential spinning and hiding of truths and the "modified limited hang-out." We've been lied to before. But this presidency has lifted these arts to new and scary heights. It has effectively sneered at the Founders' basic principle of checks and balances. A few days ago, Vice President Dick Cheney explained the rationale behind the secret domestic spying by saying that Watergate and Vietnam significantly eroded presidential powers and the Bush regime is merely trying to restore them. He actually said that.

The words and deeds of these White House residents point to other conclusions. They seem to be reaching for virtually unchecked power—power even to override laws at will in a nation founded on the rule of law.

This president promised to restore "honor and integrity" to the White House. And when he was elected to a second term, he said happily and boldly to a press conference: "You asked, do I feel free. Let me put it to you this way. I earned capital in the campaign, political capital—and now I intend to spend it."

His bypassing the law, was that what he meant by those promises? Could the president actually have forgotten that in this country, the monarchy was abolished—and any autocracy forbidden—more than two centuries ago?



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Striking differences

New York City used to think of itself as a union town that had some empathy for working people. Now, we seem to be in a more Darwinian mood.

In the transit strike that lasted only three days, the city's newspapers showed little good feeling for the grievances of the struggling workers. The tabloids tended to bare their flesh-eating teeth, particularly the New York Post, which labeled the strikers as dregs of society and greedy rodents—using the kind of venom the paper usually reserves for rapist "fiends." One Post banner headline was, simply: "You Rats." All those years ago, the Post used to care about working people. Now it's a Murdoch paper.

On local television, more often than not, the cameras brought us scenes of raging subway riders and commuters. That's known in TV land as giving the viewers "red meat."

I mention this sociological sea change not to take sides or suggest that the hardships for subway and bus riders weren't severe. I merely note that some of us carry memories from earlier times, when Mike Quill of the Transit Workers Union and Mayor John Lindsay traded theatrical insults (Quill called him "Mayor Lindsley" to annoy him). It was a time when the public seemed to roll better with the punches and to accept a short strike partly as urban theater. This time, when Mayor Bloomberg called the union "selfish" and "thuggish," he seemed to mean it. go to next article in news ->

AlterNet
Big Brother Bush
By Molly Ivins, AlterNet
Posted on December 29, 2005, Printed on December 29, 2005
http://www.alternet.org/story/30175/

The first time as tragedy, the second time as farce. Thirty-five years ago, Richard Milhous Nixon, who was crazy as a bullbat, and J. Edgar Hoover, who wore women's underwear, decided some Americans had unacceptable political opinions. So they set our government to spying on its own citizens, basically those who were deemed insufficiently like Crazy Richard Milhous.

For those of you who have forgotten just what a stonewall paranoid Nixon was, the poor man used to stalk around the White House demanding that his political enemies be killed. Many still believe there was a certain Richard III grandeur to Nixon's collapse because he was also a man of notable talents. There is neither grandeur nor tragedy in watching this president, the Testy Kid, violate his oath to uphold the laws and Constitution of our country.

The Testy Kid wants to do what he wants to do when he wants to do it because he is the president, and he considers that sufficient justification for whatever he wants. He even finds lawyers like John Yoo, who tell him that whatever he wants to do is legal.

The creepy part is the overlap. Damned if they aren't still here, after all these years, the old Nixon hands -- Dick Cheney and Donald Rumsfeld, the whole gang whose yearning for authoritarian government rose like a stink over the Nixon years. Imperial executive. Bring back those special White House guard uniforms. Cheney, like some malignancy that cannot be killed off, back at the same old stand, pushing the same old crap. Of course, they tell us we have to be spied on for our own safety, so they can catch the terrorists who threaten us all. Thirty-five years ago, they nabbed a film star named Jean Seberg and a bunch of people running a free breakfast program for poor kids in Chicago. This time, they're onto the Quakers. We are not safer.

We would be safer, as the 9-11 commission has so recently reminded us, if some obvious and necessary precautions were taken at both nuclear and chemical plants -- but that is not happening because those industries contribute to Republican candidates. Republicans do not ask their contributors to spend a lot of money on obvious and necessary steps to protect public safety. They wiretap, instead. You will be unsurprised to learn that, first, they lied. They didn't do it. Well, OK, they did it, but not very much at all. Well, OK, more than that. A lot more than that. OK, millions of private e-mail and telephone calls every hour, and all medical and financial records.

You may recall in 2002 it was revealed that the Pentagon had started a giant data-mining program called Total Information Awareness (TIA), intended to search through vast databases "to increase information coverage by an order of magnitude."

>From credit cards to vet reports, Big Brother would be watching us. This dandy program was under the control of Adm. John Poindexter, convicted of five felonies during Iran-Contra, all overturned on a technicality. This administration really knows where to go for good help -- it ought to bring back Brownie.

Everybody decided that TIA was a terrible idea, and the program was theoretically shut down. As often happens with this administration, it turned out they just changed the name and made the program less visible. Data-mining was a popular buzzword at the time, and the administration was obviously hot to have it. Bush established a secret program under which the National Security Agency could bypass the FISA (Foreign Intelligence Surveillance Act) court and begin eavesdropping on Americans without warrants.

As many have patiently pointed out, the entire program was unnecessary, since the FISA court is both prompt and accommodating. There is virtually no possible scenario that would make it difficult or impossible to get a FISA warrant -- it has granted 19,000 warrants and rejected only a handful.

I don't like to play scary games where we all stay awake late at night, telling each other scary stories -- but there's a reason we have never given our government this kind of power. As the late Sen. Frank Church said, "That capability could at any time be turned around on the American people, and no American would have any privacy left, such is the capacity to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide."

And if a dictator took over, the NSA "could enable it to impose total tyranny." Then we always get that dreadful goody-two-shoes response, "Well, if you aren't doing anything wrong, you don't have anything to worry about, do you?"

Folks, we KNOW this program is being and will be misused. We know it from the past record and current reporting. The program has already targeted vegans and People for the Ethical Treatment of Animals -- and, boy, if those aren't outposts of al-Qaida, what is? Could this be more pathetic?

This could scarcely be clearer. Either the president of the United States is going to have to understand and admit he has done something very wrong, or he will have to be impeached. The first time this happened, the institutional response was magnificent. The courts, the press, the Congress all functioned superbly. Anyone think we're up to that again? Then whom do we blame when we lose the republic?

Molly Ivins writes about politics, Texas and other bizarre happenings.
© 2005 Independent Media Institute. All rights reserved.
View this story online at: http://www.alternet.org/story/30175/

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http://www.worldnetdaily.com/news/article....RTICLE_ID=48103
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HOMELAND INSECURITY
Most Americans back Bush-ordered wiretaps
Believe NSA should eavesdrop on suspects' calls without warrants

--------------------------------------------------------------------------------
Posted: December 28, 2005
12:23 p.m. Eastern



© 2005 WorldNetDaily.com

A new survey found nearly two-thirds of Americans believe the National Security Agency should monitor communications between terrorist suspects overseas and contacts inside the U.S.

According to Scott Rasmussen of Rasmussen Reports, 64 percent of respondents said the super-secret NSA should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. Just 23 percent disagreed, the survey found.


Meanwhile, 68 percent of those surveyed said they are following news reports about the NSA somewhat or very closely.

The shadowy agency came under the spotlight recently following reports President Bush authorized warrantless monitoring of American citizens suspected of communicating with alleged terrorists outside of the country.

Federal law requires authorities to obtain warrants from the secret Foreign Intelligence Surveillance Court, a legal requirement established in 1978 in the wake of the Watergate scandal to deal with terrorism and espionage cases.

But the White House maintains Congress authorized the monitoring when it gave Bush authority to conduct the war against terrorism, though congressional critics of the administration dismiss that claim.

The New York Times, which first broke the story detailing the warrantless eavesdropping, reported Monday the foreign intelligence court is now seeking a briefing from the administration as to why it was bypassed.

"At the same time," the paper reported, "defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the NSA program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used."

However, legal hurdles exist, the paper added, because many defendants waived some rights to appeal as part of their plea deals.



Barely one-quarter of those surveyed by Rasmussen, 26 percent, said they believe Bush is the first president to order warrantless eavesdropping. Forty-eight percent said he is not while 26 percent said they weren't sure.

Politically, 81 percent of Republicans said they believe the NSA should be authorized to listen in on conversations between suspected terrorists and people living in the U.S. That view is also supported by 51 percent of Democrats and 57 percent of respondents who said they were not affiliated with either major political party.

An insidious culture of surveillance

By Thomas Oliphant, Globe Columnist | December 20, 2005

WASHINGTON

IT ALWAYS STARTS SMALL, almost logically.

In a basically free society, abuses of civil and human rights often initially make sense, which appears to have been the case when President Bush took his baby steps toward a system of warrant-free, electronic surveillance of persons inside the United States -- some citizens, some not.

Over time, however, the inch that government first takes becomes a mile, and that also appears to have been the case, as senators and congressmen from both parties, who were too trusting initially, are beginning to understand. The one enduring lesson that conservatives used to teach effectively is that government that is not checked, balanced, and watched like a hawk can gradually become oppressive.

And now, it's happened again.

The latest abuse of civil rights and the Constitution began with the first round of captures of Al Qaeda operatives in Afghanistan and Pakistan in the weeks and months following the 9/11 attacks.

Some of these terrorists were caught in possession of their cellular telephones and laptop computers. Naturally, it occurred to the US agents involved to see where these cellphones and hard drives led -- a perfectly understandable notion.

And then, as night follows day, it all got out of hand, morphing into a system of snooping that can only be justified by authoritarian theories of executive supremacy, complete with legal justifications for a super-secret program that are themselves super-secret.

The clue that even the government recognizes it is doing wrong lies in the almost laughable inability of top officials to discuss all this without resort to the tortured euphemism that authoritarians always rely on.

President Bush's truculent response on Saturday to the surveillance program's belated unmasking by The New York Times -- which held up its story for a year for reasons that remain largely undisclosed -- included the claim that it was designed ''to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations."

As always, the problem arises from the government's claim that it alone decides what a ''link" and ''related" mean; if thousands of people have had their ''communications" monitored, it follows that those links are decidedly tenuous, if not nonexistent.

On Sunday, the designated TV spokeswoman, Condoleezza Rice, invented ''seams", ostensibly exploited by terrorists, between foreign intelligence and domestic law enforcement capabilities out of whole cloth. In fact, the government has bugged thousands of people, and it remains to be seen just how careful the targeting actually was.

One powerful piece of evidence that it got out of hand is the fact that surveillance has been government-wide in the last few years. American groups involved in nothing more than traditional protest and activism have been infiltrated and followed, by the FBI red-flagged by military intelligence agencies. There is a culture of surveillance now, not a few carefully limited operations against severe and immediate threats.

To those who are continually surprised that government behaves in this manner, it helps to remember that we have been down this road before. It is not as if international terrorism is the only modern threat the US has had to confront. There used to be a country called the Soviet Union, armed with thousands of nuclear weapons and motivated by a particularly devious kind of expansionism. During Vietnam, the war was so controversial that at any given moment, a large chunk of the country was involved in trying to stop it -- legally. In both cases, these supposedly dire threats to national security gave birth to a large bureaucracy of oppression whose exposure during Watergate led to what we all thought were lasting reforms.

Even before Watergate exploded, there were two important Supreme Court decisions that appeared to define the limits of government power and (in the late 1970s) one important statute that appeared to close an obvious loophole.

In 1967, much closer to the dawn of the electronic age, the principle was established that evidence from wiretaps should be discarded from legal proceedings unless it was produced under the authority of a court-issued warrant based on a finding of probable cause that a crime had been committed.

Obviously, that didn't cover purely intelligence-related fruits from electronic snooping, so five years later a unanimous court ruled that the wiretapping of alleged domestic subversives without a warrant was unconstitutional.

That left an obvious loophole with regard to the agents of other countries, and Congress presumably filled it in 1978 by enacting the Foreign Intelligence Surveillance Act. This statute established a secret court here that had to approve government applications for surveillance, a court that quickly established procedures for very rapid approvals in emergency situations.

You would think that had established an understandable, fair and efficient mechanism, but here we go again with another government for whom any procedure, any check or balance, is too cumbersome. You wonder why Bush claims he needs the so-called Patriot Act at all.

Thomas Oliphant's e-mail address is oliphant@globe.com

http://www.boston.com/news/globe/editorial...illance?mode=PF

December 28, 2005 -- BREAKING NEWS.

NSA spied on its own employees, other U.S. intelligence personnel, and their journalist and congressional contacts. WMR has learned that the National Security Agency (NSA), on the orders of the Bush administration, eavesdropped on the private conversations and e-mail of its own employees, employees of other U.S. intelligence agencies -- including the CIA and DIA -- and their contacts in the media, Congress, and oversight agencies and offices.

The journalist surveillance program, code named "Firstfruits," was part of a Director of Central Intelligence (DCI) program that was maintained at least until October 2004 and was authorized by then-DCI Porter Goss. Firstfruits was authorized as part of a DCI "Countering Denial and Deception" program responsible to an entity known as the Foreign Denial and Deception Committee (FDDC). Since the intelligence community's reorganization, the DCI has been replaced by the Director of National Intelligence headed by John Negroponte and his deputy, former NSA director Gen. Michael Hayden.

Firstfruits was a database that contained both the articles and the transcripts of telephone and other communications of particular Washington journalists known to report on sensitive U.S. intelligence activities, particularly those involving NSA. According to NSA sources, the targeted journalists included author James Bamford, the New York Times' James Risen, the Washington Post's Vernon Loeb, the New Yorker's Seymour Hersh, the Washington Times' Bill Gertz, UPI's John C. K. Daly, and this editor [Wayne Madsen], who has written about NSA for The Village Voice, CAQ, Intelligence Online, and the Electronic Privacy Information Center (EPIC).


In addition, beginning in 2001 but before the 9-11 attacks, NSA began to target anyone in the U.S. intelligence community who was deemed a "disgruntled employee." According to NSA sources, this surveillance was a violation of United States Signals Intelligence Directive (USSID) 18 and the Foreign Intelligence Surveillance Act of 1978. The surveillance of U.S. intelligence personnel by other intelligence personnel in the United States and abroad was conducted without any warrants from the Foreign Intelligence Surveillance Court. The targeted U.S. intelligence agency personnel included those who made contact with members of the media, including the journalists targeted by Firstfruits, as well as members of Congress, Inspectors General, and other oversight agencies. Those discovered to have spoken to journalists and oversight personnel were subjected to sudden clearance revocation and termination as "security risks."

In 2001, the Foreign Intelligence Surveillance Court rejected a number of FISA wiretap applications from Michael Resnick, the FBI supervisor in charge of counter-terrorism surveillance. The court said that some 75 warrant requests from the FBI were erroneous and that the FBI, under Louis Freeh and Robert Mueller, had misled the court and misused the FISA law on dozens of occasions. In a May 17, 2002 opinion, the presiding FISA Judge, Royce C. Lamberth (a Texan appointed by Ronald Reagan), barred Resnick from ever appearing before the court again. The ruling, released by Lamberth's successor, Judge Colleen Kollar-Kotelley, stated in extremely strong terms, "In virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors . . . How these misrepresentations occurred remains unexplained to the court."

After the Justice Department appealed the FISC decision, the FISA Review court met for the first time in its history. The three-member review court, composed of Ralph Guy of the 6th U.S. Circuit Court of Appeals, Edward Leavy of the 9th Circuit, and Laurence Silberman [of the Robb-Silberman Commission on 911 "intelligence failures"] of the D.C. Circuit, overturned the FISC decision on the Bush administration's wiretap requests.

Based on recent disclosures that the Bush administration has been using the NSA to conduct illegal surveillance of U.S. citizens, it is now becoming apparent what vexed the FISC to the point that it rejected, in an unprecedented manner, numerous wiretap requests and sanctioned Resnick.

http://waynemadsenreport.com/

Hmm, last time I checked, we hadn't passed the Patriot Act in order to catch meth addicts.

http://www.katv.com/news/stories/1205/289503.html

The Press And The President
Submitted by editor on December 29, 2005 - 12:59pm.
By Jules Witcover
Source: Hartford Courant

The disclosure that President Bush has urged executives of two of the nation's most influential newspapers not to publish stories on grounds of national security raises critical questions about the responsibilities of the press in wartime.

The president, it turns out, asked The Washington Post's executive editor, Leonard Downie Jr., not to publish last month that the CIA maintained secret prisons for suspected terrorists in Eastern Europe, but failed to block the story.

Thereafter, Bush tried to convince the publisher of The New York Times, Arthur Sulzburger Jr., the paper's executive editor, Bill Keller, and its Washington bureau chief, Philip Taubman, not to report this month that he had authorized domestic spying without required court warrants. He also failed to prevent that story from running.

None of the Post and Times executives would confirm or discuss the meetings, nor would the White House, but the existence of the meetings surfaced in Newsweek magazine and the Post.

The president's intervention in both instances was hardly unprecedented. In the most famous similar case, President John F. Kennedy in 1961 either personally or through a subordinate called on the Times to scrub or tone down a story on the planned Bay of Pigs invasion of Cuba by U.S.-supported exiles.

The Times ran the story, about the training of the exiles in Florida, on Page 1, but without a predicted date. Kennedy was outraged nevertheless. Ironically, after the invasion turned out disastrously, he told a Times editor that had the full story been run, it might have killed the invasion plan and Kennedy would have been saved from the whole fiasco.

When Bush's latest attempts to scuttle newspaper stories on grounds they would imperil national security failed to prevent their publication, the result was damage to his own credibility. The stories generated congressional criticism from members of both parties, and the Times story produced a promise by Republican Arlen Specter, chairman of the Senate Judiciary Committee, to hold hearings on Bush's unwarranted approval of domestic eavesdropping.

From the viewpoint of journalistic practice, Keller's acknowledgment that the Times had that story last year, before the 2004 presidential election, but did not run it then, raises an equally disturbing question: Should it have been withheld during a presidential campaign?

There was no certainty that Bush, seeking re-election, would have been damaged politically by the disclosure that he had ignored the law requiring that he seek warrants from a special secret court created for just that purpose.

But didn't the Times have a responsibility to inform the public? The fact that its disclosure has created such a stir in Congress and elsewhere reinforces the argument for timely publication. If national security is not jeopardized now, why would it have been then?

Though the 2004 Democratic nominee, Sen. John Kerry, may have been the political beneficiary of Bush's acts, the matter is not a partisan one. Had the Times or any other news organization come up with some similar breach of the law involving President Bill Clinton in advance of his re-election campaign in 1996, the journalistic responsibility to publish would have been the same.

What makes the whole business of Bush's failure to seek warrants in the domestic spying so troubling is the fact that the procedure was neither difficult nor time-consuming.

And had Bush gone to Congress and sought revision of the procedure, it was highly unlikely such revision would have been refused in the prevailing post-9/11 climate.

As the old year comes to an end, the president's intervention in the matter of press responsibility highlights the fact that 2005 has not been a memorable one for either the leader of the country or its journalistic community.

Bush has seen his personal popularity and credibility in sharp decline, with recent efforts to shore up both only mildly effective.

As for the news business, its own credibility with the public has been hammered by disclosures of columnists propagandizing for pay, plagiarism, reportorial fictionalizing and other ethical implosions.

Let's hope 2006 will bring more candor from officialdom in the national security field and more responsibility from the news media in what is reported and, for justifiable reasons only, what is not.

http://mediachannel.org/blog/node/2588

It's good to be King George

Tuesday, December 27, 2005
By Reg Henry
http://www.post-gazette.com/pg/05361/628256.stm

As I was saying to a fellow peasant just the other day, it is ironic that this country should rebel against one King George only to bow down before another monarch of the same name more than 200 years later.

That our own King George -- he of the House of Bush -- is truly of royal blood has become clear in recent days with the announcement that he has empowered the National Security Agency to spy on whomsoever and whatsoever it wishes under royal decree.

Happily for him if not his subjects, this cannot be challenged by the picky laws and constitutional concerns that rule us poor common folk. It cannot be challenged because he says so, which is the traditional way of kings.

Previously, before His Majesty assumed his sovereign powers, the president -- as he was then quaintly known -- had to go to a secret court if he wanted permission for his agents to snoop on enemies within the realm. The esteemed judges of this court would take out their official rubber stamp, and the matter would be handled satisfactorily for all concerned except for the knaves and scoundrels, hopefully not all of them Democrats.

Although a rubber stamp administered in secret was about the same covering for civil liberties as a lace pasty applied to an exotic dancer, the common people nevertheless rested easily, because a genuflection had been made to their beloved Constitution.

But kings do not bow down before anyone or anything. It is for us, the commoners, to prostrate ourselves before their highnesses. Thus did King George decree that it was too risky for the security of his kingdom to rely on a rubber stamp, which, after all, might wear out.

Moreover, it was insulting for his agents to be kept waiting while the judges came in from the golf course.

So he reasoned that, as he was fighting a war, one that conveniently for him was never going to end, he could do anything he liked because he was the king, or the commander in chief in the old manner of speaking. Laws, shmaws -- what were they to one so noble?

Now everything is changed. Faith-based policies have rediscovered the divine right of kings. I hope the royal court realizes that I am writing this in the groveling position like the uncouth but humble person that I am.

To show my fealty, I tug my forelock in the old ritual of subservience except that I haven't got a forelock, as a result of male pattern baldness, and therefore, as a substitute, I tug my back mullet-lock in all honor and obedience.

I pray King George for his gentle forbearance because he has said that even discussing his new royal powers may aid the enemy. Of course, the last thing I wish to do is aid the enemy. It's just that the old habit of free speech dies hard.

Now that King George has enthroned himself, it is only right that he assume the other trappings of monarchy. May I, his lowly and worthless servant, suggest a coat of arms? Perhaps a church built on the ruins of the wall of separation between church and state. Maybe lobbyists rampant on a field of money.

His Majesty also needs royal titles tailored to the American context. It is my honor to suggest the following, which I hope the NSA will record to my credit ...

Henceforth, throughout the land, let him be proclaimed as His Royal Texas-ship, Defender of the Faith, Interpreter of the Constitution, Protector of the SUVs, Guardian of the Malls, Warrior King, Scourge of the Liberals, Bane of the Activist Judges, His Most High Majesty and Most Excellent King George W. the First of Many.

We beseech you, your kingship, to institute a system of hereditary peerage based upon merit and loyalty (i.e., campaign contributions) so that we peasants will have someone to look up to other than the tawdry celebrities on TV. Sir Rush of Bloviation, Sir Karl of Spin, these will be names to conjure with in the future days of dynasty. Perhaps, as a goodwill gesture, you could name Bill Clinton as a knight of the garter belt.

Please, sire, forgive us our petulant Bush-bashing of former days before we realized you wore a crown. Spy on us as much as you want because we understand now that your knowledge of the Constitution is infinitely greater than our own.

Indeed, it is good to be the king, at least for the king.
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(Reg Henry can be reached at rhenry@post-gazette.com or 412-263-1668.)

Issue One: Bush-approved surveillance
Sunday, December 25, 2005
Pittsburgh Post-Gazette
http://www.post-gazette.com/pg/05359/627276.stm

Don't give in

President Bush assumes that U.S. citizens are so afraid of another 9/11 that we are willing to relinquish the checks and balances that are built into our government, and, in some cases, our civil rights. He is wrong! Immediately after Sept. 11, the Bush administration urged U.S. citizens to stay strong. We were told to continue to go to work and not to change our behavior -- to do so would show the terrorists that we were afraid.

Now, the Bush administration is using fear of another 9/11 as a way to justify its actions and persuade us to change ours ("President Fiercely Defends Wiretaps," Dec. 20). I ask you, before Sept. 11, 2001, would we have stood for spying in the United States without proper court approval? If we are to stay strong as the United States, then we must honor the basic civil liberties on which our country was founded. If we don't, then the terrorists have already won.

MICHELE MARGITTAI
South Side

[deleted pro-Bush letter]

Impeach him

Now that President Bush has admitted that he illegally ordered the National Security Agency to spy on U.S. citizens ("Bush Defends NSA Spying," Dec. 18), it is time to begin the impeachment process.

This is a nation of laws, not men. We citizens cannot shirk our responsibility to defend the laws and rights of all our citizens. Call your congressman and make your indignation known.

WALFRED RAISANEN
Washington, Pa.
--------------------------------------------------------------------------------
Creating distrust

Police state. I lived in Northern Ireland under the police states of the Loyalist Government and the IRA and Protestant terrorists. They all kept notes on their "enemies" and treated their "enemies" accordingly -- either by internment or through knee-capping/murdering.

George W. Bush is creating a similar situation here in the United States.

It is time for the people to reel him in before he declares that, for the safety of the world, he should be a permanent fixture in Washington.

PATRICK J. CORR
West View

Editorial: Big Brother Bush / The president took a step toward a police state
Sunday, December 18, 2005

Pittsburgh Post-Gazette
http://www.post-gazette.com/pg/05352/623818.stm

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

Analysis: Courts have set limits on presidential power
Justices may decide if Constitution or Congress granted Bush authority to spy
Thursday, December 22, 2005

By Michael McGough, Post-Gazette National Bureau

http://www.post-gazette.com/pg/05356/626195.stm

Saw this DKos diary, and I thought it was a good fit for this thread.

http://www.dailykos.com/story/2005/12/29/192952/59

We often think of America as a land of opportunity, but now to feel safe we try not to be important enough to be targets of our government's surveillance.

December 29, 2005
U.S. to Probe Contractor's Web Tracking
By THE ASSOCIATED PRESS
Filed at 11:19 p.m. ET

NEW YORK (AP) -- Unbeknown to the Bush administration, an outside contractor has been using Internet tracking technologies that may be prohibited to analyze usage and traffic patterns at the White House's Web site, an official said Thursday.

David Almacy, the White House's Internet director, promised an investigation into whether the practice is consistent with a 2003 policy from the White House's Office of Management and Budget banning the use of most such technologies at government sites.

''No one even knew it was happening,'' Almacy said. ''We're going to work with the contractor to ensure that it's consistent with the OMB policy.''

An official with the contractor, WebTrends Inc., said later Thursday, however, that although a cookie may be used, no data from it is actually sent back to the company.

The development came a day after the National Security Agency admitted it had erred in using banned ''cookies'' at its Web site. Cookies are small data files that can be used to track Internet users. The acknowledgments followed inquiries by The Associated Press.

The White House's Web site uses what's known as a Web bug to anonymously keep track of who's visiting and when. A Web bug is essentially a tiny graphic image -- a dot, really -- that's virtually invisible. In this case, the bug is pulled from a server maintained by WebTrends and lets the traffic analytic company know that another person has visited a specific page on the site.

Web bugs themselves are not prohibited.

But when these bugs are linked to a cookie -- so that a site can tell if the same person has visited again -- a federal agency using them must demonstrate a ''compelling need,'' get a senior official's signoff and disclose such usage, said Peter Swire, a Clinton administration official who helped draft the original rules.

The White House's privacy policy does not specifically mention cookies or Web bugs, and Almacy said the signoff was never sought because one was not thought to be required. He said his team was first informed of the cookie use by the AP.

But Jason Palmer, vice president of product management for Portland, Ore.-based WebTrends, insisted the cookies are not used in such manner.

Cookies from the White House site are not generated simply by visiting it, according to analyses by the AP and by Richard M. Smith, a security consultant in Cambridge, Mass., who first noticed the Web bug this week.

Rather, WebTrends cookies are sometimes created when visiting other WebTrends clients. Smith said his analysis of network traffic shows such preexisting cookies have then been used when visiting the White House site.

But WebTrends officials say they do not aggregate information about visitors across multiple sites.

Palmer said the browsers are designed to pull preexisting cookies automatically, and that the company has no choice in the matter. But he insisted the company doesn't use the information.

In any case, Almacy said, no personal data are collected.

In a statement, WebTrends added that the analysis performed at the White House site is typical among organizations for improving user experience.

The Clinton administration first issued the strict rules on cookies in 2000 after its Office of National Drug Control Policy, through a contractor, had used the technology to track computer users viewing its online anti-drug advertising. The rules were updated in 2003 by the Bush administration.

Although no personal information was collected at the time, Swire said, concerns were raised that one site's data could be linked later with those from the contractor's other clients.

''It all could be linked up after the fact, and that was enough to lead to the federal policy,'' Swire said.

Nonetheless, agencies occasionally violate the rules inadvertently. The CIA did in 2002, and the NSA more recently. The NSA disabled the cookies this week and blamed a recent upgrade to software that shipped with cookie settings already on.

http://www.nytimes.com/aponline/technology...agewanted=print

I hope someone is checking the Pentagon website.

http://washingtontimes.com/commentary/2005...92503-6702r.htm

. . . or outside the law?
By Bruce Fein
December 28, 2005


President Bush secretly ordered the National Security Agency (NSA) to eavesdrop on the international communications of U.S. citizens in violation of the warrant requirement of the Foreign Intelligence Surveillance Act (FISA) in the aftermath of the September 11, 2001, abominations.
The eavesdropping continued for four years, long after fears of imminent September 11 repetitions had lapsed, before the disclosure by the New York Times this month.
Mr. Bush has continued the NSA spying without congressional authorization or ratification of the earlier interceptions. (In sharp contrast, Abraham Lincoln obtained congressional ratification for the emergency measures taken in the wake of Fort Sumter, including suspending the writ of habeas corpus).
Mr. Bush has adamantly refused to acknowledge any constitutional limitations on his power to wage war indefinitely against international terrorism, other than an unelaborated assertion he is not a dictator. Claims to inherent authority to break and enter homes, to intercept purely domestic communications, or to herd citizens into concentration camps reminiscent of World War II, for example, have not been ruled out if the commander in chief believes the measures would help defeat al Qaeda or sister terrorist threats.
Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand. As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself."
The Founding Fathers confined presidential war powers to avoid the oppressions of kings. Despite championing a muscular and energetic chief executive, Hamilton in Federalist 69 accepted that the president must generally bow to congressional directions even in times of war: "The president is to be commander in chief of the Army and Navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces; while that of the British king extends to declaring war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature."
President Bush's claim of inherent authority to flout congressional limitations in warring against international terrorism thus stumbles on the original meaning of the commander in chief provision in Article II, section 2.
The claim is not established by the fact that many of Mr. Bush's predecessors have made comparable assertions. In Youngstown Sheet & Tube v. Sawyer (1952), the U.S. Supreme Court rejected President Truman's claim of inherent power to seize a steel mill to settle a labor dispute during the Korean War in reliance on previous seizures of private businesses by other presidents. Writing for a 6-3 majority, Justice Hugo Black amplified: "But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested in the Constitution in the Government of the United States."
Indeed, no unconstitutional usurpation is saved by longevity. For 50 years, Congress claimed power to thwart executive decisions through "legislative vetoes." The Supreme Court, nevertheless, held the practice void in Immigration and Naturalization Service v. Chadha (1983). Approximately 200 laws were set aside. Similarly, the high court declared in Erie Railroad v. Tompkins (1938) that federal courts for a century since Swift v. Tyson (1842) had unconstitutionally exceeded their adjudicative powers in fashioning a federal common law to decide disputes between citizens of different states.
President Bush preposterously argues the Sept. 14, 2001, congressional resolution authorizing "all necessary and appropriate force against those nations, organizations or persons [the president] determines" were implicated in the September 11 attacks provided legal sanction for the indefinite NSA eavesdropping outside the aegis of FISA. But the FISA statute expressly limits emergency surveillances of citizens during wartime to 15 days, unless the president obtains congressional approval for an extension: "[T]he president, through the attorney general, may authorize electronic surveillance without a court order... to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress."
A cardinal canon of statutory interpretation teaches that a specific statute like FISA trumps a general statute like the congressional war resolution. Neither the resolution's language nor legislative history even hints that Congress intended a repeal of FISA. Moreover, the White House has maintained Congress was not asked for a law authorizing the NSA eavesdropping because the legislature would have balked, not because the statute would have duplicated the war resolution.
As Youngstown Sheet & Tube instructs, the war powers of the president are at their nadir where, as with the NSA eavesdropping, he acts contrary to a federal statute. Further, that case invalidated a seizure of private property (with just compensation) a vastly less troublesome invasion of civil liberties than the NSA's indefinite interception of international conversations on Mr. Bush's say so alone.
Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

http://www.truthout.org/docs_2005/122905I.shtml

Bush-NSA Spying in Defiance of Congress, Court
By Jason Leopold
t r u t h o u t | Investigative Report

Thursday 29 December 2005

The Bush administration was publicly admonished by a senate committee, and a special surveillance court, in two separate instances for repeatedly trying to skirt the law in obtaining top-secret warrants to spy on American citizens suspected of having ties to terrorists. Despite the public rebuke, President Bush circumvented the judicial process and secretly authorized the National Security Agency to spy on thousands of individuals in the United States in defiance of the very court that issued a legal opinion saying the administration was already infringing on civil liberties in other domestic spy cases.

Securing top-secret surveillance warrants from a special court after 9/11 was proving to be hugely problematic for the Justice Department, and led a senate committee to issue an extraordinary report more than two years ago criticizing federal law enforcement officials for failing to properly follow routine guidelines in their efforts to obtain warrants for eavesdropping on Americans suspected of having ties to terrorists.

The Senate Judiciary Committee report issued in February 2003 may help explain why President Bush authorized the National Security Agency to spy on Americans without seeking prior approval from the Foreign Intelligence Surveillance Court, which for more than two decades has handled domestic spying activities.

The report singled out the FBI, and said the bureau's agents, whose job it is to obtain the surveillance warrants from the special court to collect intelligence information in the fight against terrorism, were inadequately trained in important aspects of not only the procedures to obtain warrants to spy on Americans under the Foreign Intelligence Surveillance Act (FISA), "but also fundamental aspects of criminal law."

The recent discovery of the NSA surveillance program caused a backlash against the administration by the legal community and led a judge who sits on the Foreign Intelligence Surveillance Court to resign in protest two weeks ago. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, said it wants the Bush administration to explain why it bypassed the court and ordered eavesdropping without warrants.

Details in the 2003 senate committee report may offer an explanation. The report cited numerous problems associated with the way some officials in the Bush administration interpreted the FISA law, found a "breakdown of communication among all those involved in the FISA application process," and noted that "most disturbing is the lack of accountability that has permeated the entire application procedure."

"In fact, the bureaucratic hurdles erected by Headquarters (and DOJ) not only hindered investigations but contributed to inaccurate information being presented to the FISA Court, eroding the trust in the FBI of the special court that is key to the government's enforcement efforts in national security investigations," the report states.

President Bush and Attorney General Alberto Gonzales have said over the past few weeks that the court process was cumbersome. Still, since 9/11, the administration requested and received approval for more than 5,000 special warrants to monitor personal email accounts and conduct top-secret wiretaps of people believed to be al-Qaeda associates, according to public documents contradicting the president and attorney general's claims that the court moved too slowly in some cases.

Bush tried to explain the reasons the administration may seek approval from the special court to eavesdrop on a suspected terrorist and why, in some cases, the NSA conducts its own surveillance absent a warrant. At a December 19 press conference at the White House, he said the administration still seeks FISA warrants "for long-term monitoring," but needs the flexibility of the NSA program.

Bush said, "This is a different era, a different war.... People are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent ... it requires quick action."

But the surveillance court has rejected just five of the nearly 19,000 requests for warrants it has received since 1979 and the warrants can be applied retroactively, meaning that the administration can begin a domestic spy operation and take up to 15 days to file a warrant request with the court.

President Bush says he has the legal authority to authorize the National Security Agency to continue eavesdropping on citizens and monitoring emails without judicial oversight, but many Democratic and Republican lawmakers are questioning whether the president violated the law in doing so.

The surveillance court has also questioned the legality of Bush's actions. The Justice Department's attempts to broaden the FBI's spying abilities after 9/11 became (such) a major concern for the surveillance court that in May 2002 it secretly ordered Attorney General John Ashcroft to scale back the plans to expand the FBI's powers because it infringed on civil liberties, according to a May 17, 2002 Foreign Intelligence Surveillance Court document.

After the Patriot Act was first approved in 2001 and a key 2002 court decision dismantled the legal wall separating the FBI's criminal and intelligence probes, the sharing of information became easier and the use of FISA warrants increased.

Ashcroft is credited with breaking down the wall that former Attorney General Janet Reno had erected in the mid-1990s that separated intelligence-gathering investigations and criminal probes to safeguard against unnecessary invasion of privacy. Federal investigators were incensed by Reno's plan, which said that intelligence agents cannot share information with criminal prosecutors, who have to meet higher legal standards to be granted warrants to conduct wiretaps and searches.

But in March 2002, Ashcroft presented a plan to the FISA court that would allow criminal prosecutors to participate in intelligence operations in the fight against terrorism. The May 17, 2002 surveillance court ruling reined Ashcroft in, and said that he overstepped his authority by loosening the rules governing intelligence gathering. Specifically, the court said Ashcroft's plans "are NOT reasonably designed" to safeguard privacy rights.

"The 2002 procedures appear to be designed to amend the law and substitute the FISA [i.e. the less demanding intelligence surveillance standards] for Title III electronic surveillances [i.e. the more demanding law enforcement standards]. This may be because the government is unable to meet the substantive requirements of these law enforcement tools, or because their administrative burdens are too onerous," the court document says.

The Senate Judiciary Committee also had concerns. The committee met privately with Ashcroft and other Justice Department officials after the Patriot Act was signed into law by President Bush on October 26, 2001. That's when Ashcroft had started to press Congress to make additional changes to FISA requirements, including changing the definition of "foreign power" to include "individual, non-U.S. persons engaged in international terrorism."

"DOJ explained that this proposal was to address the threat posed by a single foreign terrorist without an obvious tie to another person, group, or state overseas. Yet, when asked to 'provide this Committee with information about specific cases that support your claim to need such broad new powers,' DOJ was silent in its response and named no specific cases showing such a need, nor did it say that it could provide such specificity even in a classified setting," the Senate Judiciary Committee report states.

"In short, DOJ sought more power but was either unwilling or unable to provide an example as to why," the report added.

Part of the reason the FISA court refused to allow the Justice Department to expand its intelligence gathering operations goes back to the Clinton administration. In the court's May 17, 2002 opinion, it said there were more than 75 cases where "FISA applications related to major terrorist attacks directed against the United States" contained errors or false information.

Ashcroft appealed the decision. In November 2002, the court of review reversed the FISA court's decision and granted Ashcroft the broad powers he had originally sought. Still, even with the additional spying powers that now made it even easier to obtain surveillance warrants, President Bush continued to end-run the system and use the NSA to spy on Americans.

This past June, the Justice Department once again sought to broaden the scope of the Patriot Act by giving the FBI even more powers, specifically allowing the agency to bypass the FISA court if it uncovered an immediate threat to national security, which is exactly what President Bush said was the reason he had bypassed the FISA court and used the FBI to spy on Americans previously.

The FBI suggested under those extraordinary circumstances that Congress should amend the Patriot Act to provide the FBI with the authority to issue its own subpoenas without prior approval from a court. This would allow it to obtain documents, such as emails and phone records, from individuals who may have ties to terrorist groups. The FBI argued that requesting approval from a court such as the FISA court might result in an "unacceptable delay" and further threaten national security.

But in a June 17 report, the Senate Intelligence Committee said there was no reason to change the Patriot Act to grant the FBI more authority than it already possesses since the FBI could not produce any evidence where national security would be further threatened by a court taking too long to approve warrants or subpoenas.

"When testifying before the Committee, the FBI could not document significant past or current instances when national security investigations faltered or were hindered due to lack of an administrative subpoena authority," the report says. "The FBI argued that such a circumstance could exist in the future when immediacy might dictate moving quickly with a subpoena for records without prior judicial review. This may be true, but based on both demonstrated and anticipated need, the use of any such authority without prior review should be the exception, not the rule."

The committee report added that federal law enforcement officials should continue to seek approval for obtaining records from the FISA court because the court provides an "important check against potential abuse in the investigative process." Circumventing the court "effectively puts the court out of business," and "puts the current subpoena authority of the court in the hands of the investigators."

"This is not necessary, justified, or wise," the report states.



--------------------------------------------------------------------------------
Jason Leopold spent two years covering California's electricity crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has spent the last year cultivating sources close to the CIA leak investigation, and is a regular contributer to t r u t h o u t.

Oh well. I know my post in the previous thread on this was ignored, but I'll try again. We should be contacting our congressional representatives (in particular probably Arlen Specter, but also your local congressmen) demanding that they act now to protect individuals who helped to expose Bush's undermining the Constitution. Bush has already accused these people publicly of aiding the enemy, and now they are actively working to determine who these people are.

May God help these people who have risked their jobs and freedom to defend our Constitution by questioning this abuse of executive power. My prayers are with these people and their families.

More from John Dean, and he is prominently featuring the 'i' word here:

http://writ.news.findlaw.com/dean/20051230.html

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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


Copyright © 2005 Yahoo! Inc. All rights reserved.

http://www.counterpunch.org/lindorff12302005.html

December 30, 2005

It May Invalidate Terror Cases
Bush's NSA Spying Jeopardizes National Security
By DAVE LINDORFF

The massive warrantless spying campaign against people living inside the U.S. which was authorized and ordered by President Bush and is only now coming to light has angered Americans across the political spectrum.

Now it appears that besides massively violating the U.S. Constitution's Fourth Amendment protection against illegal search and seizure, this illegal spying may have put the U.S. at risk by undermining the prosecution of possible terror suspects.

By illegally snooping on people's email and phone conversations, without first making a showing to a judge of some probable cause for the monitoring, the administration has opened the door for defense attorneys to seek new trials for their clients based upon a claim of improperly obtained evidence. Other cases that have yet to be brought to trial may end up being thrown out on the same grounds.

"The infection of these cases by the NSA spying scandal raises the spying to a new level," says John Bonifaz, a constitutional law expert, founder of the organization AfterDowningStreet.org, and author of the book Warrior-King: The Case for Impeaching George W. Bush.

"What this means is that George Bush, by violating the rules on domestic surveillance by the NSA, has compromised national security," says Bonifaz. "This scandal effectively prevents the prosecution of people, some of whom may actually be culpable as terrorists."

Bonifaz, who on the eve of the Iraq war attempted to prevent the invasion by bringing a lawsuit on behalf of some active duty soldiers contending that the war was illegal, and who is currently running for Secretary of State for Massachusetts, says that a round of cases seeking to quash prosecutions and convictions based upon the illegal spying could develop into "the equivalent for Bush of Nixon's Watergate tapes."

He explains that as the public learns from public court proceedings just what the extent of the NSA domestic spying campaign has been, and how it has damaged legitimate prosecutions, and as higher courts begin to rule on the impact of and illegality of that campaign, there could be growing calls for impeachment on that issue alone.

Dave Lindorff is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of CounterPunch columns titled "This Can't be Happening!" is published by Common Courage Press. Information about both books and other work by Lindorff can be found at www.thiscantbehappening.net.

He can be reached at: dlindorff@yahoo.com

http://www.thecouriermail.news.com.au/prin...7698664,00.html

White House denies calling for probe
From correspondents in Crawford
31dec05

THE White House said overnight it had no role in the Justice Department's decision to investigate the leaking of classified information indicating that President George W. Bush authorised a secret government wiretap program.

"The Justice Department undertook this action on its own, which is the way it should be," White House spokesman Trent Duffy said in Crawford, Texas, where the President was enjoying a year-end vacation on his ranch.
But he added: "The White House was informed of the decision, as was the president."

Mr Duffy stressed that "the leaking of classified information is a serious issue." And he defended the use of wiretaps, warning that "Al-Qaeda's playbook is not printed on page one, and when America's is, it has serious ramifications."

The probe was opened after Mr Bush earlier this month urged a "full investigation" into who leaked information about the secret government wiretap program.

It is unknown who was behind the leak revealing the secret program, although media reports have suggested that some agents were concerned about the program's legality.

The president's call for a probe came after US media reported that Mr Bush had authorised the National Security Agency (NSA) to engage in an operation to monitor massive volumes of telephone and Internet communications.

Domestic spying is a sensitive issue for many Americans who are proud of their civil liberties. Similar revelations about domestic spying led to legislation in the 1970s that allows wiretapping but requires government agencies to obtain a special court warrant for it.

The President's order enabled the NSA to monitor, without a warrant, international telephone calls and electronic mail of US citizens with suspected ties to Al-Qaeda.

Covert CIA Program Withstands New Furor
Anti-Terror Effort Continues to Grow

By Dana Priest
Washington Post Staff Writer
Friday, December 30, 2005; A01



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 is 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 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 protests 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 the 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 J. 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 stated 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 then-House Speaker Newt Gingrich (R-Ga.), concluded that the interrogation techniques had been effective, said an intelligence official familiar with the result. John J. 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 will 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."

The Origins

The top-secret presidential finding Bush signed six days after the Sept. 11 attacks empowered the intelligence agencies in a way not seen since World War II, and it ordered them to create what would become the GST program.

Written findings are required by the National Security Act of 1947 before the CIA can undertake a covert action. A covert action may not violate the Constitution or any U.S. law. But such actions can, and often do, violate laws of the foreign countries in which they take place, said intelligence experts.

The CIA faced the day after the 2001 attacks with few al Qaeda informants, a tiny paramilitary division and no interrogators, much less a system for transporting terrorism suspects and keeping them hidden for interrogation.

Besides fighting the war in Afghanistan, the agency set about to put in place an intelligence-gathering network that relies heavily on foreign security services and their deeper knowledge of local terrorist groups. With billions of dollars appropriated each year by Congress, the CIA has established joint counterterrorism intelligence centers in more than two dozen countries, and it has enlisted at least eight countries, including several in Eastern Europe, to allow secret prisons on their soil.

Working behind the scenes, the CIA has gained approval from foreign governments to whisk terrorism suspects off the streets or out of police custody into a clandestine prison system that includes the CIA's black sites and facilities run by intelligence agencies in other countries.

The presidential finding also permitted the CIA to create paramilitary teams to hunt and kill designated individuals anywhere in the world, according to a dozen current and former intelligence officials and congressional and executive branch sources.

In four years, the GST has become larger than the CIA's covert action programs in Afghanistan and Central America in the 1980s, according to current and former intelligence officials. Indeed, the CIA, working with foreign counterparts, has been responsible for virtually all of the success the United States has had in capturing or killing al Qaeda leaders since Sept. 11, 2001.

Bush delegated much of the day-to-day decision-making and the creation of individual components to then-CIA Director George J. Tenet, according to congressional and intelligence officials who were briefed on the finding at the time.

"George could decide, even on killings," one of these officials said, referring to Tenet. "That was pushed down to him. George had the authority on who was going to get it."

The Lawyers

Tenet, according to half a dozen former intelligence officials, delegated most of the decision making on lethal action to the CIA's Counterterrorist Center. Killing an al Qaeda leader with a Hellfire missile fired from a remote-controlled drone might have been considered assassination in a prior era and therefore banned by law.

But after Sept. 11, four former government lawyers said, it was classified as an act of self-defense and therefore was not an assassination. "If it was an al Qaeda person, it wouldn't be an assassination," said one lawyer involved.

This month, Pakistani intelligence sources said, Hamza Rabia, a top operational planner for al Qaeda, was killed along with four others by a missile fired by U.S. operatives using an unmanned Predator drone, although there were conflicting reports on whether a missile was used. In May, another al Qaeda member, Haitham Yemeni, was reported killed by a Predator drone missile in northwest Pakistan.

Refining what constitutes an assassination was just one of many legal interpretations made by Bush administration lawyers. Time and again, the administration asked government lawyers to draw up new rules and reinterpret old ones to approve activities once banned or discouraged under the congressional reforms beginning in the 1970s, according to these officials and seven lawyers who once worked on these matters.

Gen. Michael V. Hayden, deputy director of national intelligence, has described the administration's philosophy in public and private meetings, including a session with human rights groups.

"We're going to live on the edge," Hayden told the groups, according to notes taken by Human Rights Watch and confirmed by Hayden's office. "My spikes will have chalk on them. . . . We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."

Not stopping another attack not only will be a professional failure, he argued, but also "will move the line" again on acceptable legal limits to counterterrorism.

When the CIA wanted new rules for interrogating important terrorism suspects the White House gave the task to a small group of lawyers within the Justice Department's Office of Legal Counsel who believed in an aggressive interpretation of presidential power.

The White House tightened the circle of participants involved in these most sensitive new areas. It initially cut out the State Department's general counsel, most of the judge advocates general of the military services and the Justice Department's criminal division, which traditionally dealt with international terrorism.

"The Bush administration did not seek a broad debate on whether commander-in-chief powers can trump international conventions and domestic statutes in our struggle against terrorism," said Radsan, the former CIA lawyer, who is a professor at William Mitchell College of Law in St. Paul, Minn. "They could have separated the big question from classified details to operations and had an open debate. Instead, an inner circle of lawyers and advisers worked around the dissenters in the administration and one-upped each other with extreme arguments."

At the CIA, the White House allowed the general counsel's job, traditionally filled from outside the CIA by someone who functioned in a sort of oversight role, to be held by John Rizzo, a career CIA lawyer with a fondness for flashy suits and ties who worked for years in the Directorate of Operations, or D.O.

"John Rizzo is a classic D.O. lawyer. He understands the culture, the intelligence business," Radsan said. "He admires the case officers. And they trust him to work out tough issues in the gray with them. He is like a corporate lawyer who knows how to make the deal happen."

These lawyers have written legal justifications for holding suspects picked up outside Afghanistan without a court order, without granting traditional legal rights and without giving them access to the International Committee of the Red Cross.

CIA and Office of Legal Counsel lawyers also determined that it was legal for suspects to be secretly detained in one country and transferred to another for the purposes of interrogation and detention -- a process known as "rendition."

Lawyers involved in the decision making acknowledge the uncharted nature of their work. "I did what I thought the best reading of the law was," one lawyer said. "These lines are not obvious. It was a judgment."

Credit and Blame

One way the White House limited debate over its program was to virtually shut out Congress during the early years. Congress, for its part, raised only weak and sporadic protests. The administration sometimes refused to give the committees charged with overseeing intelligence agencies the details they requested. It also cut the number of members of Congress routinely briefed on these matters, usually to four members -- the chairmen and ranking Democratic members of the House and Senate intelligence panels.

John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate Select Committee on Intelligence, complained in a 2003 letter to Vice President Cheney that his briefing on the NSA eavesdropping was unsatisfactory. "Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities," he wrote.

Rockefeller made similar complaints about the CIA's refusal to allow the full committee to see the backup material supporting a skeptical report by the CIA inspector general in 2004 on detentions and interrogations that questioned the legal basis for renditions.

Some former CIA officers now worry that the agency alone will be held responsible for actions authorized by Bush and approved by the White House's lawyers.

Attacking the CIA is common when covert programs are exposed and controversial, said Gerald Haines, a former CIA historian who is a scholar in residence at the University of Virginia. "It seems to me the agency is taking the brunt of all the recent criticism."

Duane R. "Dewey" Clarridge, who directed the CIA's covert efforts to support the Nicaraguan contras in the 1980s, said the nature of CIA work overseas is, and should be, risky and sometimes ugly. "You have a spy agency because the spy agency is going to break laws overseas. If you don't want it to do those dastardly things, don't have it. You can have the State Department."

But a former CIA officer said the agency "lost its way" after Sept. 11, rarely refusing or questioning an administration request. The unorthodox measures "have got to be flushed out of the system," the former officer said. "That's how it works in this country."

Researcher Julie Tate contributed to this report.