[IP] more on Bush Lets U.S. Spy on Callers Without Courts >:o >:o
Begin forwarded message:
From: Dana Blankenhorn <dana@xxxxxxxxxx>
Date: December 16, 2005 12:55:24 PM EST
To: dave@xxxxxxxxxx
Subject: Re: [IP] Bush Lets U.S. Spy on Callers Without Courts >:o >:o
I hear the frustration and share it.
Unfortunately, in the American system, it is impossible to
successfully impeach a President without bipartisan support. And it
is impossible to begin the process if the President's supporters hold
a majority in Congress.
Had Republicans controlled Congress in 1973, I really doubt the
Watergate investigation would have gotten anywhere. The process would
have been controlled by lawyers like Fred Dalton Thompson (the Law &
Order DA), who defended the President right to the end, and to
Congressmen like Charles Wiggin (the House must initiate
impeachment), who did the same.
Should Democrats seize even one house in 2006, investigations will
begin in 2007. I think that should be their rallying cry. Because
otherwise, we'll never know what has been happening these last five
years.
Dana Blankenhorn dana@xxxxxxxxxx
Editor: voic.us http://www.voic.us
----- Original Message ----- From: "David Farber" <dave@xxxxxxxxxx>
To: <ip@xxxxxxxxxxxxxx>
Sent: Friday, December 16, 2005 11:49 AM
Subject: [IP] Bush Lets U.S. Spy on Callers Without Courts >:o >:o
Begin forwarded message:
From: Alice Kehoe <akehoe@xxxxxxx>
Date: December 16, 2005 7:58:53 AM EST
Looks this odious Administration got caught at it again! If only
Bush would have some stupid, sleazy mid-life affair with a little
bimbo so he could be impeached! Obviously starting a war based
upon lies, imprisoning and torturing "suspects" without trial,
flouting international treaties by the dozen, conducting blatantly
illegal covert operations of all sorts and plundering the poor to
help the rich, just aren't serious enough to bring him to
account. >:o >:o
http://www.nytimes.com/2005/12/16/politics/16program.html?
hp&ex=1134795600&en=c7596fe0d4798785&ei=5094&partner=homepage
December 16, 2005
Bush Lets U.S. Spy on Callers Without Courts
By JAMES RISEN and ERIC LICHTBLAU
WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President
Bush secretly authorized the National Security Agency to eavesdrop
on Americans and others inside the United States to search for
evidence of terrorist activity without the court-approved warrants
ordinarily required for domestic spying, according to government
officials.
Under a presidential order signed in 2002, the intelligence agency
has monitored the international telephone calls and international
e- mail messages of hundreds, perhaps thousands, of people inside
the United States without warrants over the past three years in an
effort to track possible "dirty numbers" linked to Al Qaeda, the
officials said. The agency, they said, still seeks warrants to
monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping
inside the country without court approval was a major shift in
American intelligence-gathering practices, particularly for the
National Security Agency, whose mission is to spy on
communications abroad. As a result, some officials familiar with
the continuing operation have questioned whether the surveillance
has stretched, if not crossed, constitutional limits on legal
searches.
"This is really a sea change," said a former senior official who
specializes in national security law. "It's almost a mainstay of
this country that the N.S.A. only does foreign searches."
Nearly a dozen current and former officials, who were granted
anonymity because of the classified nature of the program,
discussed it with reporters for The New York Times because of
their concerns about the operation's legality and oversight.
According to those officials and others, reservations about
aspects of the program have also been expressed by Senator John
D. Rockefeller IV, the West Virginia Democrat who is the vice
chairman of the Senate Intelligence Committee, and a judge
presiding over a secret court that oversees intelligence matters.
Some of the questions about the agency's new powers led the
administration to temporarily suspend the operation last year and
impose more restrictions, the officials said.
The Bush administration views the operation as necessary so that
the agency can move quickly to monitor communications that may
disclose threats to the United States, the officials said.
Defenders of the program say it has been a critical tool in helping
disrupt terrorist plots and prevent attacks inside the United States.
Administration officials are confident that existing safeguards are
sufficient to protect the privacy and civil liberties of
Americans, the officials say. In some cases, they said, the
Justice Department eventually seeks warrants if it wants to expand
the eavesdropping to include communications confined within the
United States. The officials said the administration had briefed
Congressional leaders about the program and notified the judge in
charge of the Foreign Intelligence Surveillance Court, the secret
Washington court that deals with national security issues.
The White House asked The New York Times not to publish this
article, arguing that it could jeopardize continuing investigations
and alert would-be terrorists that they might be under scrutiny.
After meeting with senior administration officials to hear their
concerns, the newspaper delayed publication for a year to conduct
additional reporting. Some information that administration
officials argued could be useful to terrorists has been omitted.
Dealing With a New Threat
While many details about the program remain secret, officials
familiar with it say the N.S.A. eavesdrops without warrants on up
to 500 people in the United States at any given time. The list
changes as some names are added and others dropped, so the number
monitored in this country may have reached into the thousands
since the program began, several officials said. Overseas, about
5,000 to 7,000 people suspected of terrorist ties are monitored at
one time, according to those officials.
Several officials said the eavesdropping program had helped uncover
a plot by Iyman Faris, an Ohio trucker and naturalized citizen who
pleaded guilty in 2003 to supporting Al Qaeda by planning to bring
down the Brooklyn Bridge with blowtorches. What appeared to be
another Qaeda plot, involving fertilizer bomb attacks on British
pubs and train stations, was exposed last year in part through
the program, the officials said. But they said most people
targeted for N.S.A. monitoring have never been charged with a
crime, including an Iranian-American doctor in the South who came
under suspicion because of what one official described as dubious
ties to Osama bin Laden.
The eavesdropping program grew out of concerns after the Sept. 11
attacks that the nation's intelligence agencies were not poised to
deal effectively with the new threat of Al Qaeda and that they
were handcuffed by legal and bureaucratic restrictions better
suited to peacetime than war, according to officials. In response,
President Bush significantly eased limits on American intelligence
and law enforcement agencies and the military.
But some of the administration's antiterrorism initiatives have
provoked an outcry from members of Congress, watchdog groups,
immigrants and others who argue that the measures erode
protections for civil liberties and intrude on Americans' privacy.
Opponents have challenged provisions of the USA Patriot Act, the
focus of contentious debate on Capitol Hill this week, that expand
domestic surveillance by giving the Federal Bureau of
Investigation more power to collect information like library
lending lists or Internet use. Military and F.B.I. officials have
drawn criticism for monitoring what were largely peaceful antiwar
protests. The Pentagon and the Department of Homeland Security
were forced to retreat on plans to use public and private
databases to hunt for possible terrorists. And last year, the
Supreme Court rejected the administration's claim that those
labeled "enemy combatants" were not entitled to judicial review of
their open-ended detention.
Mr. Bush's executive order allowing some warrantless eavesdropping
on those inside the United States - including American citizens,
permanent legal residents, tourists and other foreigners - is
based on classified legal opinions that assert that the president
has broad powers to order such searches, derived in part from the
September 2001 Congressional resolution authorizing him to wage
war on Al Qaeda and other terrorist groups, according to the
officials familiar with the N.S.A. operation.
The National Security Agency, which is based at Fort Meade, Md.,
is the nation's largest and most secretive intelligence agency,
so intent on remaining out of public view that it has long been
nicknamed "No Such Agency." It breaks codes and maintains
listening posts around the world to eavesdrop on foreign
governments, diplomats and trade negotiators as well as drug lords
and terrorists. But the agency ordinarily operates under tight
restrictions on any spying on Americans, even if they are
overseas, or disseminating information about them.
What the agency calls a "special collection program" began soon
after the Sept. 11 attacks, as it looked for new tools to attack
terrorism. The program accelerated in early 2002 after the Central
Intelligence Agency started capturing top Qaeda operatives
overseas, including Abu Zubaydah, who was arrested in Pakistan in
March 2002. The C.I.A. seized the terrorists' computers,
cellphones and personal phone directories, said the officials
familiar with the program. The N.S.A. surveillance was intended to
exploit those numbers and addresses as quickly as possible, they
said.
In addition to eavesdropping on those numbers and reading e-mail
messages to and from the Qaeda figures, the N.S.A. began
monitoring others linked to them, creating an expanding chain.
While most of the numbers and addresses were overseas, hundreds
were in the United States, the officials said.
Under the agency's longstanding rules, the N.S.A. can target for
interception phone calls or e-mail messages on foreign soil, even
if the recipients of those communications are in the United
States. Usually, though, the government can only target phones and
e-mail messages in the United States by first obtaining a court
order from the Foreign Intelligence Surveillance Court, which
holds its closed sessions at the Justice Department.
Traditionally, the F.B.I., not the N.S.A., seeks such warrants and
conducts most domestic eavesdropping. Until the new program began,
the N.S.A. typically limited its domestic surveillance to foreign
embassies and missions in Washington, New York and other cities,
and obtained court orders to do so.
Since 2002, the agency has been conducting some warrantless
eavesdropping on people in the United States who are linked, even
if indirectly, to suspected terrorists through the chain of phone
numbers and e-mail addresses, according to several officials who
know of the operation. Under the special program, the agency
monitors their international communications, the officials said.
The agency, for example, can target phone calls from someone in
New York to someone in Afghanistan.
Warrants are still required for eavesdropping on entirely domestic-
to- domestic communications, those officials say, meaning that
calls from that New Yorker to someone in California could not be
monitored without first going to the Federal Intelligence
Surveillance Court.
A White House Briefing
After the special program started, Congressional leaders from both
political parties were brought to Vice President Dick Cheney's
office in the White House. The leaders, who included the chairmen
and ranking members of the Senate and House intelligence
committees, learned of the N.S.A. operation from Mr. Cheney, Lt.
Gen. Michael V. Hayden of the Air Force, who was then the agency's
director and is now a full general and the principal deputy
director of national intelligence, and George J. Tenet, then the
director of the C.I.A., officials said.
It is not clear how much the members of Congress were told about
the presidential order and the eavesdropping program. Some of them
declined to comment about the matter, while others did not return
phone calls.
Later briefings were held for members of Congress as they assumed
leadership roles on the intelligence committees, officials
familiar with the program said. After a 2003 briefing, Senator
Rockefeller, the West Virginia Democrat who became vice chairman
of the Senate Intelligence Committee that year, wrote a letter to
Mr. Cheney expressing concerns about the program, officials
knowledgeable about the letter said. It could not be determined if
he received a reply. Mr. Rockefeller declined to comment. Aside
from the Congressional leaders, only a small group of people,
including several cabinet members and officials at the N.S.A., the
C.I.A. and the Justice Department, know of the program.
Some officials familiar with it say they consider warrantless
eavesdropping inside the United States to be unlawful and possibly
unconstitutional, amounting to an improper search. One government
official involved in the operation said he privately complained to
a Congressional official about his doubts about the program's
legality. But nothing came of his inquiry. "People just looked the
other way because they didn't want to know what was going on," he
said.
A senior government official recalled that he was taken aback when
he first learned of the operation. "My first reaction was, 'We're
doing what?' " he said. While he said he eventually felt that
adequate safeguards were put in place, he added that questions
about the program's legitimacy were understandable.
Some of those who object to the operation argue that is
unnecessary. By getting warrants through the foreign intelligence
court, the N.S.A. and F.B.I. could eavesdrop on people inside the
United States who might be tied to terrorist groups without
skirting longstanding rules, they say.
The standard of proof required to obtain a warrant from the Foreign
Intelligence Surveillance Court is generally considered lower than
that required for a criminal warrant - intelligence officials only
have to show probable cause that someone may be "an agent of a
foreign power," which includes international terrorist groups -
and the secret court has turned down only a small number of
requests over the years. In 2004, according to the Justice
Department, 1,754 warrants were approved. And the Foreign
Intelligence Surveillance Court can grant emergency approval for
wiretaps within hours, officials say.
Administration officials counter that they sometimes need to move
more urgently, the officials said. Those involved in the program
also said that the N.S.A.'s eavesdroppers might need to start
monitoring large batches of numbers all at once, and that it would
be impractical to seek permission from the Foreign Intelligence
Surveillance Court first, according to the officials.
The N.S.A. domestic spying operation has stirred such controversy
among some national security officials in part because of the
agency's cautious culture and longstanding rules.
Widespread abuses - including eavesdropping on Vietnam War
protesters and civil rights activists - by American intelligence
agencies became public in the 1970's and led to passage of the
Foreign Intelligence Surveillance Act, which imposed strict limits
on intelligence gathering on American soil. Among other things,
the law required search warrants, approved by the secret F.I.S.A.
court, for wiretaps in national security cases. The agency, deeply
scarred by the scandals, adopted additional rules that all but
ended domestic spying on its part.
After the Sept. 11 attacks, though, the United States intelligence
community was criticized for being too risk-averse. The National
Security Agency was even cited by the independent 9/11 Commission
for adhering to self-imposed rules that were stricter than those
set by federal law.
Concerns and Revisions
Several senior government officials say that when the special
operation began, there were few controls on it and little formal
oversight outside the N.S.A. The agency can choose its
eavesdropping targets and does not have to seek approval from
Justice Department or other Bush administration officials. Some
agency officials wanted nothing to do with the program, apparently
fearful of participating in an illegal operation, a former senior
Bush administration official said. Before the 2004 election, the
official said, some N.S.A. personnel worried that the program
might come under scrutiny by Congressional or criminal
investigators if Senator John Kerry, the Democratic nominee, was
elected president.
In mid-2004, concerns about the program expressed by national
security officials, government lawyers and a judge prompted the
Bush administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A.
program, several officials said. And to provide more guidance, the
Justice Department and the agency expanded and refined a checklist
to follow in deciding whether probable cause existed to start
monitoring someone's communications, several officials said.
A complaint from Judge Colleen Kollar-Kotelly, the federal judge
who oversees the Federal Intelligence Surveillance Court, helped
spur the suspension, officials said. The judge questioned whether
information obtained under the N.S.A. program was being improperly
used as the basis for F.I.S.A. wiretap warrant requests from the
Justice Department, according to senior government officials.
While not knowing all the details of the exchange, several
government lawyers said there appeared to be concerns that the
Justice Department, by trying to shield the existence of the
N.S.A. program, was in danger of misleading the court about the
origins of the information cited to justify the warrants.
One official familiar with the episode said the judge insisted to
Justice Department lawyers at one point that any material gathered
under the special N.S.A. program not be used in seeking wiretap
warrants from her court. Judge Kollar-Kotelly did not return calls
for comment.
A related issue arose in a case in which the F.B.I. was monitoring
the communications of a terrorist suspect under a F.I.S.A.-
approved warrant, even though the National Security Agency was
already conducting warrantless eavesdropping.
According to officials, F.B.I. surveillance of Mr. Faris, the
Brooklyn Bridge plotter, was dropped for a short time because of
technical problems. At the time, senior Justice Department
officials worried what would happen if the N.S.A. picked up
information that needed to be presented in court. The government
would then either have to disclose the N.S.A. program or mislead a
criminal court about how it had gotten the information.
Several national security officials say the powers granted the
N.S.A. by President Bush go far beyond the expanded
counterterrorism powers granted by Congress under the USA Patriot
Act, which is up for renewal. The House on Wednesday approved a
plan to reauthorize crucial parts of the law. But final passage
has been delayed under the threat of a Senate filibuster because
of concerns from both parties over possible intrusions on
Americans' civil liberties and privacy.
Under the act, law enforcement and intelligence officials are still
required to seek a F.I.S.A. warrant every time they want to
eavesdrop within the United States. A recent agreement reached by
Republican leaders and the Bush administration would modify the
standard for F.B.I. wiretap warrants, requiring, for instance, a
description of a specific target. Critics say the bar would remain
too low to prevent abuses.
Bush administration officials argue that the civil liberties
concerns are unfounded, and they say pointedly that the Patriot
Act has not freed the N.S.A. to target Americans. "Nothing could
be further from the truth," wrote John Yoo, a former official in
the Justice Department's Office of Legal Counsel, and his co-
author in a Wall Street Journal opinion article in December 2003.
Mr. Yoo worked on a classified legal opinion on the N.S.A.'s
domestic eavesdropping program.
At an April hearing on the Patriot Act renewal, Senator Barbara A.
Mikulski, Democrat of Maryland, asked Attorney General Alberto R.
Gonzales and Robert S. Mueller III, the director of the F.B.I.,
"Can the National Security Agency, the great electronic snooper,
spy on the American people?"
"Generally," Mr. Mueller said, "I would say generally, they are not
allowed to spy or to gather information on American citizens."
President Bush did not ask Congress to include provisions for the
N.S.A. domestic surveillance program as part of the Patriot Act
and has not sought any other laws to authorize the operation.
Bush administration lawyers argued that such new laws were
unnecessary, because they believed that the Congressional
resolution on the campaign against terrorism provided ample
authorization, officials said.
The Legal Line Shifts
Seeking Congressional approval was also viewed as politically risky
because the proposal would be certain to face intense opposition
on civil liberties grounds. The administration also feared that
by publicly disclosing the existence of the operation, its
usefulness in tracking terrorists would end, officials said.
The legal opinions that support the N.S.A. operation remain
classified, but they appear to have followed private discussions
among senior administration lawyers and other officials about the
need to pursue aggressive strategies that once may have been seen
as crossing a legal line, according to senior officials who
participated in the discussions.
For example, just days after the Sept. 11, 2001, attacks on New
York and the Pentagon, Mr. Yoo, the Justice Department lawyer,
wrote an internal memorandum that argued that the government might
use "electronic surveillance techniques and equipment that are
more powerful and sophisticated than those available to law
enforcement agencies in order to intercept telephonic
communications and observe the movement of persons but without
obtaining warrants for such uses."
Mr. Yoo noted that while such actions could raise constitutional
issues, in the face of devastating terrorist attacks "the
government may be justified in taking measures which in less
troubled conditions could be seen as infringements of individual
liberties."
The next year, Justice Department lawyers disclosed their thinking
on the issue of warrantless wiretaps in national security cases in
a little-noticed brief in an unrelated court case. In that 2002
brief, the government said that "the Constitution vests in the
President inherent authority to conduct warrantless intelligence
surveillance (electronic or otherwise) of foreign powers or their
agents, and Congress cannot by statute extinguish that
constitutional authority."
Administration officials were also encouraged by a November 2002
appeals court decision in an unrelated matter. The decision by the
Foreign Intelligence Surveillance Court of Review, which sided
with the administration in dismantling a bureaucratic "wall"
limiting cooperation between prosecutors and intelligence
officers, cited "the president's inherent constitutional authority
to conduct warrantless foreign intelligence surveillance."
But the same court suggested that national security interests
should not be grounds "to jettison the Fourth Amendment
requirements" protecting the rights of Americans against undue
searches. The dividing line, the court acknowledged, "is a very
difficult one to administer."
Barclay Walsh contributed research for this article.
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