[IP] more on Bush Lets U.S. Spy on Callers Without Courts >:o >:o
Begin forwarded message:
From: "Lin, Herb" <HLin@xxxxxxx>
Date: December 16, 2005 4:01:20 PM EST
To: dave@xxxxxxxxxx, ip@xxxxxxxxxxxxxx
Subject: RE: [IP] more on Bush Lets U.S. Spy on Callers Without
Courts >:o >:o
I like the idea of draining the swamp, and eliminating the conditions
that breed terrorists. In fact, in the long term, that's probably the
only way to make us safe against terrorists.
The more important question is this: is current U.S. policy in fact
achieving this goal? For example, one might want to ask if the current
occupation of Iraq is (a) a way of forcing democracy and elections on
the former Iraq dictatorship, or (b) a way of training people to be more
effective terrorists, or (perhaps)(c) some combination of the two.
Also - perhaps neil or someone else might wish to answer the question of
whether they believe that the AQ threat (or the threat posed by Islamic
terrorists) will end when EVERY dictatorial country in the middle east
has been occupied, democratized, and had free elections.
Interested minds want to know.
Herb
From: "Munro, Neil" <NMunro@xxxxxxxxxxxxxxxxxxx>
Date: December 16, 2005 1:34:26 PM EST
To: dave@xxxxxxxxxx
Subject: RE: [IP] Bush Lets U.S. Spy on Callers Without Courts >:o >:o
....
But the chief problem, which the NYT article does not highlight, is that
AL-Q has chosen to blur the lines between civilian and military, law and
war, criminal and innocuous. They buy tickets on our airplanes, use our
phone lines, hide behind our laws, hire our lawyers, locate themselves
to shelter under the protection of our legal regime, and cite our
prisoner-protection rules, etc. In effect, they swim in the sea of our
complex, sensitive culture while they try to kill us. Reserving these
protections for US citizens, while rooting out terrorists, is very
difficult.
Of course police powers must be restricted, but it is a very difficult
task when an intelligent enemy adjusts his tactics to exploit the same
protections given to American citizens.
Some have suggested that the least-painful solution to this dilemma
would be to drain the terrorist swamp in the Middle East, rather than
writing more and more intrusive and uncertain rules to regulate an
high-stakes hunt around the world for terrorists. The claim is that the
US could try to drain that swamp by forcing democracy and elections on
various dictatorships in the Middle East. Does anyone know of an NYT
article discussing whether Bush is considering this alternative?
Neil
-----Original Message-----
From: David Farber [mailto:dave@xxxxxxxxxx]
Sent: Friday, December 16, 2005 11:49 AM
To: ip@xxxxxxxxxxxxxx
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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