Senate let's phone companies off the hook

Senate Moves to Shield Phone Companies on Eavesdropping

By ERIC LICHTBLAU

WASHINGTON — After more than a year of heated political wrangling, the Senate handed the White House a major victory Tuesday by voting to broaden the government’s spy powers and to give legal protection to phone companies that cooperated in President Bush’s warrantless eavesdropping program.

The Senate rejected a series of amendments that would have restricted the government’s surveillance powers and eliminated immunity for the phone carriers, and it voted in convincing fashion — 69 to 29 — to end debate and bring the issue to a final vote. That vote is expected later this afternoon, with the result all but assured. On the vote to end debate, 28 Democrats and Senator Bernie Sanders, independent of Vermont, opposed the measure. Senators Hillary Rodham Clinton and Lindsey Graham did not vote.

The House has already rejected the idea of immunity for the phone companies, and Democratic leaders reacted angrily to the Senate vote. But Congressional officials said it appeared that the House would ultimately be forced to accept some sort of legal protection for the phone carriers in negotiations between the two chambers this week.

The Senate vote amounted to a proxy on the president’s warrantless wiretapping program, which allowed the National Security Agency to eavesdrop on Americans’ international communications without a court warrant if they were suspected of having terrorist ties.

With resistance led by Democratic Senators Russ Feingold of Wisconsin and Christopher J. Dodd of Connecticut, critics of the administration’s plan argued that it effectively rewarded phone companies by providing them with legal insulation for actions that violated longstanding law and their own fiduciary responsibilities to their customers. Immunity would protect the phone companies from some 40 lawsuits now pending that charge the firms broke the law by taking part in the program.

But supporters of the plan said the phone carriers acted out of patriotism after the Sept. 11 attacks in complying with what they believed in good faith was a legally binding order from the president. Republicans were able to garner the support of 19 Democrats and Senator Joseph I. Lieberman of Connecticut. Democratic leaders charged that the tactics the Republicans used smacked of fear-mongering.

“This, I believe, is the right way to go for the security of the nation,” said Senator John D. Rockefeller IV, the West Virginia Democrat who leads the intelligence committee and who was a pivotal supporter of the White House-backed plan approved Tuesday.

Beyond the immunity provision, the Senate measure would also widen the executive branch’s surveillance powers by allowing the National Security Agency and intelligence agencies to use broad orders — without getting court orders in advance — to eavesdrop on groups of overseas targets, rather than using individualized warrants.

Collecting of Details on Travelers Documented

U.S. Effort More Extensive Than Previously Known

By Ellen Nakashima
Washington Post Staff Writer
Saturday, September 22, 2007; A01

The U.S. government is collecting electronic records on the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried, according to documents obtained by a group of civil liberties advocates and statements by government officials.

The personal travel records are meant to be stored for as long as 15 years, as part of the Department of Homeland Security's effort to assess the security threat posed by all travelers entering the country. Officials say the records, which are analyzed by the department's Automated Targeting System, help border officials distinguish potential terrorists from innocent people entering the country.

But new details about the information being retained suggest that the government is monitoring the personal habits of travelers more closely than it has previously acknowledged. The details were learned when a group of activists requested copies of official records on their own travel. Those records included a description of a book on marijuana that one of them carried and small flashlights bearing the symbol of a marijuana leaf.

The Automated Targeting System has been used to screen passengers since the mid-1990s, but the collection of data for it has been greatly expanded and automated since 2002, according to former DHS officials.

Officials yesterday defended the retention of highly personal data on travelers not involved in or linked to any violations of the law. But civil liberties advocates have alleged that the type of information preserved by the department raises alarms about the government's ability to intrude into the lives of ordinary people. The millions of travelers whose records are kept by the government are generally unaware of what their records say, and the government has not created an effective mechanism for reviewing the data and correcting any errors, activists said.

The activists alleged that the data collection effort, as carried out now, violates the Privacy Act, which bars the gathering of data related to Americans' exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate. They also expressed concern that such personal data could one day be used to impede their right to travel.

"The federal government is trying to build a surveillance society," said John Gilmore, a civil liberties activist in San Francisco whose records were requested by the Identity Project, an ad-hoc group of privacy advocates in California and Alaska. The government, he said, "may be doing it with the best or worst of intentions. . . . But the job of building a surveillance database and populating it with information about us is happening largely without our awareness and without our consent."

Gilmore's file, which he provided to The Washington Post, included a note from a Customs and Border Patrol officer that he carried the marijuana-related book "Drugs and Your Rights." "My first reaction was I kind of expected it," Gilmore said. "My second reaction was, that's illegal."

DHS officials said this week that the government is not interested in passengers' reading habits, that the program is transparent, and that it affords redress for travelers who are inappropriately stymied. "I flatly reject the premise that the department is interested in what travelers are reading," DHS spokesman Russ Knocke said. "We are completely uninterested in the latest Tom Clancy novel that the traveler may be reading."

But, Knocke said, "if there is some indication based upon the behavior or an item in the traveler's possession that leads the inspection officer to conclude there could be a possible violation of the law, it is the front-line officer's duty to further scrutinize the traveler." Once that happens, Knocke said, "it is not uncommon for the officer to document interactions with a traveler that merited additional scrutiny."

He said that he is not familiar with the file that mentions Gilmore's book about drug rights, but that generally "front-line officers have a duty to enforce all laws within our authority, for example, the counter-narcotics mission." Officers making a decision to admit someone at a port of entry have a duty to apply extra scrutiny if there is some indication of a violation of the law, he said.

The retention of information about Gilmore's book was first disclosed this week in Wired News. Details of how the ATS works were disclosed in a Federal Register notice last November. Although the screening has been in effect for more than a decade, data for the system in recent years have been collected by the government from more border points, and also provided by airlines -- under U.S. government mandates -- through direct electronic links that did not previously exist.

The DHS database generally includes "passenger name record" (PNR) information, as well as notes taken during secondary screenings of travelers. PNR data -- often provided to airlines and other companies when reservations are made -- routinely include names, addresses and credit-card information, as well as telephone and e-mail contact details, itineraries, hotel and rental car reservations, and even the type of bed requested in a hotel.

The records the Identity Project obtained confirmed that the government is receiving data directly from commercial reservation systems, such as Galileo and Sabre, but also showed that the data, in some cases, are more detailed than the information to which the airlines have access.

Ann Harrison, the communications director for a technology firm in Silicon Valley who was among those who obtained their personal files and provided them to The Post, said she was taken aback to see that her dossier contained data on her race and on a European flight that did not begin or end in the United States or connect to a U.S.-bound flight.

"It was surprising that they were gathering so much information without my knowledge on my travel activities, and it was distressing to me that this information was being gathered in violation of the law," she said.

James P. Harrison, director of the Identity Project and Ann Harrison's brother, obtained government records that contained another sister's phone number in Tokyo as an emergency contact. "So my sister's phone number ends up being in a government database," he said. "This is a lot more than just saying who you are, your date of birth."

Edward Hasbrouck, a civil liberties activist who was a travel agent for more than 15 years, said that his file contained coding that reflected his plan to fly with another individual. In fact, Hasbrouck wound up not flying with that person, but the record, which can be linked to the other passenger's name, remained in the system. "The Automated Targeting System," Hasbrouck alleged, "is the largest system of government dossiers of individual Americans' personal activities that the government has ever created."

He said that travel records are among the most potentially invasive of records because they can suggest links: They show who a traveler sat next to, where they stayed, when they left. "It's that lifetime log of everywhere you go that can be correlated with other people's movements that's most dangerous," he said. "If you sat next to someone once, that's a coincidence. If you sat next to them twice, that's a relationship."

Stewart Verdery, former first assistant secretary for policy and planning at DHS, said the data collected for ATS should be considered "an investigative tool, just the way we do with law enforcement, who take records of things for future purposes when they need to figure out where people came from, what they were carrying and who they are associated with. That type of information is extremely valuable when you're trying to thread together a plot or you're trying to clean up after an attack."

Homeland Security Secretary Michael Chertoff in August 2006 said that "if we learned anything from Sept. 11, 2001, it is that we need to be better at connecting the dots of terrorist-related information. After Sept. 11, we used credit-card and telephone records to identify those linked with the hijackers. But wouldn't it be better to identify such connections before a hijacker boards a plane?" Chertoff said that comparing PNR data with intelligence on terrorists lets the government "identify unknown threats for additional screening" and helps avoid "inconvenient screening of low-risk travelers."

Knocke, the DHS spokesman, added that the program is not used to determine "guilt by association." He said the DHS has created a program called DHS Trip to provide redress for travelers who faced screening problems at ports of entry.

But DHS Trip does not allow a traveler to challenge an agency decision in court, said David Sobel, senior counsel with the Electronic Frontier Foundation, which has sued the DHS over information concerning the policy underlying the ATS. Because the system is exempted from certain Privacy Act requirements, including the right to "contest the content of the record," a traveler has no ability to correct erroneous information, Sobel said.

Zakariya Reed, a Toledo firefighter, said in an interview that he has been detained at least seven times at the Michigan border since fall 2006. Twice, he said, he was questioned by border officials about "politically charged" opinion pieces he had published in his local newspaper. The essays were critical of U.S. policy in the Middle East, he said. Once, during a secondary interview, he said, "they had them printed out on the table in front of me."

Judge Strikes Down Parts of Patriot Act

September 7, 2007

By ADAM LIPTAK

A federal judge today struck down parts of the new U.S.A. Patriot Act that authorized the Federal Bureau of Investigation to acquire corporate records using informal secret demands called national security letters.

The law allowed the F.B.I. to force communications companies, including telephone and Internet providers, to turn over their customers’ records without court authorization and permanently to forbid the companies from discussing what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.

The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the law violated the First Amendment and the separation of powers guaranteed by the Constitution.

Judge Marrero wrote that he feared the law could be the first step in a series of intrusions into the role of the judiciary that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.

Yesterday’s decision was a sequel to ones from Judge Marrero in 2004 and a federal judge in Connecticut in 2005, both of which enjoined an earlier version of the law. Congress responded last year by amending the law when it reauthorized the U.S.A. Patriot Act.

The earlier version of the law prohibited all recipients of the letters from disclosing them. The amended law changed the ban slightly, now requiring the F.B.I. to certify in each case that disclosures might harm national security, criminal investigations, diplomacy or people’s safety.

The law authorized courts to review those assertions under an extremely deferential standard. In some cases, for instance, judges were required to treat F.B.I. statements “as conclusive unless the court finds that the certification was made in bad faith.”

In yesterday’s decision, Judge Marrero said the amendment did not go far enough in addressing the flaws identified in the earlier decisions and created additional constitutional problems.

Recipients of the letters, he wrote, remain “effectively barred from engaging in any discussion regarding their experiences and opinions related to the government’s use” of the letters. Indeed, the very identity of the Internet service provider that brought the case decided yesterday remains secret.

Judge Marrero said that the F.B.I. may be entitled to prohibit disclosures for a limited time but afterward “must bear the burden of going to court to suppress the speech.” Putting that burden on recipients of the letters, he said, violates the First Amendment.

Judge Marrero used harsher language and evocative historical analogies in criticizing the aspect of the new law that imposed restrictions on the courts’ ability to review the F.B.I.’s determinations.

“When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy,” Judge Marrero wrote, pointing to discredited Supreme Court cases endorsing the internment of Japanese-Americans during the Second World War and racially segregated railroad cars in the 19th century.

“The only thing left of the judiciary’s function for those Americans in that experience,” he wrote, “was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.”

Lawyers for the American Civil Liberties Union, which represented the Internet company, said Judge Marrero had confirmed a bedrock principle.

“A statute that allows the F.B.I. to silence people without meaningful judicial oversight is unconstitutional,” said Jameel Jaffer, an A.C.L.U. lawyer.

Judge Marrero delayed enforcing the decision pending an appeal by the government. Rebekah Carmichael, a spokeswoman for the United States attorney’s office in Manhattan, said the government has not decided whether it will file one.

Democrats Scrambling to Expand Eavesdropping

August 1, 2007

By JAMES RISEN

WASHINGTON, July 31 — Under pressure from President Bush, Democratic leaders in Congress are scrambling to pass legislation this week to expand the government’s electronic wiretapping powers.

Democratic leaders have expressed a new willingness to work with the White House to amend the Foreign Intelligence Surveillance Act to make it easier for the National Security Agency to eavesdrop on some purely foreign telephone calls and e-mail. Such a step now requires court approval.

It would be the first change in the law since the Bush administration’s program of wiretapping without warrants became public in December 2005.

In the past few days, Mr. Bush and Mike McConnell, director of national intelligence, have publicly called on Congress to make the change before its August recess, which could begin this weekend. Democrats appear to be worried that if they block such legislation, the White House will depict them as being weak on terrorism.

“We hope our Republican counterparts will work together with us to fix the problem, rather than try again to gain partisan political advantage at the expense of our national security,” Senator Harry Reid of Nevada, the majority leader, said in a statement Monday night.

Some civil liberties groups oppose the proposed changes, expressing concern that there might be far-reaching consequences.

“Congress needs to take its time before it implements another piece of antiterrorism legislation it will regret, like the Patriot Act,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “The Bush administration clearly has abused the FISA powers it already has and clearly wants to go back to the good old days of warrantless wiretapping and domestic spying. Congress must stop this bill in its tracks.”

The administration says that digital technology and the globalization of the telecommunications industry have created a legal quandary for the intelligence community. Some purely international telephone calls are now routed through telephone switches inside the United States, which means such “transit traffic” can be subject to federal surveillance laws requiring search warrants for any government eavesdropping.

Under the program of wiretapping without warrants, which began soon after the Sept. 11 attacks, the N.S.A. eavesdropped on the transit traffic without seeking court approval. But in January, the administration placed the program back under the FISA law, which meant warrants were required for surveillance of the transit traffic.

In the Senate, talks were under way on Tuesday on proposed legislation among members of the Senate Intelligence Committee and the Senate Judiciary Committee, as well as Mr. Reid and the Senate leadership, Congressional aides said. Similar talks are under way in the House.

Mr. McConnell sent Congressional leaders a new legislative plan last Friday, one that was more limited than an earlier administration plan.

The White House has told Democratic lawmakers that it will accept a narrow bill now but will come back later for broader changes, including legal immunity for telecommunications companies involved in the wiretapping program.

Mr. McConnell met with Congressional leaders of both parties on Tuesday to try to reach a compromise, a spokesman for him said.

Representative Heather Wilson, Republican of New Mexico and a member of the House Intelligence Committee, said, “Admiral McConnell has made the case that this change is needed and that it is a serious problem. This is too serious for political games.”

One obstacle to a deal this week is a disagreement between Democrats and the White House over how to audit the wiretapping of the foreign-to-foreign calls going through switches in the United States.

The Democrats have proposed that the eavesdropping be reviewed by the secret FISA court to make sure that it has not ensnared any Americans.

The administration has proposed that the attorney general perform the review, but Democrats are unwilling to give that kind of authority to Attorney General Alberto R. Gonzales, who is under fire for what some lawmakers describe as his misleading testimony about the dismissals of federal prosecutors and the wiretapping program.

Mr. Gonzalez has insisted that a 2004 dispute between the White House and Justice Department officials that erupted in the hospital room of then Attorney General John Ashcroft related to other intelligence activities. On Sunday, The New York Times reported that the dispute centered on the data mining elements of the N.S.A.’s program, rather than on the eavesdropping, leaving open the possibility that Mr. Gonzalez had been legalistic in his testimony, but had technically not lied.

In a letter Tuesday to Senator Arlen Specter, the Pennsylvania Republican who is the ranking minority member of the Senate Judiciary Committee, Mr. McConnell seemed to confirm the Times account though the letter did not mention Mr. Gonzalez or his testimony.

The letter said that “shortly after 9/11, the president authorized the National Security Agency to undertake various intelligence activities designed to protect the United States from further terrorist attack. A number of these intelligence activities were authorized in one order.”

The letter adds that “one particular aspect of these activities, and nothing more, was publicly acknowledged by the president and described in December 2005, following an unauthorized disclosure.”

F.B.I. Chief Gives Account at Odds With Gonzales’s

July 27, 2007
By DAVID JOHNSTON and SCOTT SHANE

WASHINGTON, July 26 — The director of the F.B.I. offered testimony Thursday that sharply conflicted with Attorney General Alberto R. Gonzales’s sworn statements about a 2004 confrontation in which top Justice Department officials threatened to resign over a secret intelligence operation.

The director, Robert S. Mueller III, told the House Judiciary Committee that the confrontation was about the National Security Agency’s counterterrorist eavesdropping program, describing it as “an N.S.A. program that has been much discussed.” His testimony was a serious blow to Mr. Gonzales, who insisted at a Senate hearing on Tuesday that there were no disagreements inside the Bush administration about the program at the time of those discussions or at any other time.

The director’s remarks were especially significant because Mr. Mueller is the Justice Department’s chief law enforcement official. He also played a crucial role in the 2004 dispute over the program, intervening with President Bush to help deal with the threat of mass resignations that grew out of a day of emergency meetings at the White House and at the hospital bedside of John Ashcroft, who was then attorney general.

In a separate development, Senate Democrats, who were unaware of Mr. Mueller’s comments, demanded the appointment of a special counsel to investigate whether Mr. Gonzales committed perjury in his testimony on Tuesday about the intelligence dispute. The Senate Judiciary Committee, meanwhile, issued a subpoena to Karl Rove, the White House senior political adviser, and another presidential aide, J. Scott Jennings, for testimony about the dismissal of federal prosecutors, another issue that has dogged Mr. Gonzales.

White House officials said the Democrats had engaged in political gamesmanship.

“What we are witnessing is an out-of-control Congress which spends time calling for special prosecutors, starting investigations, issuing subpoenas and generally just trying to settle scores,” said Scott M. Stanzel, a White House spokesman. “All the while they fail to pass appropriations bills and important issues like immigration reform, energy and other problems go unanswered.”

The conflict underscored how Mr. Gonzales’s troubles have expanded beyond accusations of improper political influence in the dismissal of United States attorneys to the handling of the eavesdropping program, in which Mr. Gonzales was significantly involved in his previous post as White House counsel.

“I had an understanding that the discussion was on a N.S.A. program,” Mr. Mueller said in answer to a question from Representative Sheila Jackson Lee, Democrat of Texas, in a hearing before the House Judiciary Committee.

Asked whether he was referring to the Terrorist Surveillance Program, or T.S.P., he replied, “The discussion was on a national N.S.A. program that has been much discussed, yes.”

Mr. Mueller said he had taken notes of some of his conversations about the issue, and after the hearing the committee asked him to produce them.

An F.B.I. spokesman declined Thursday night to elaborate on Mr. Mueller’s testimony.

In a four-hour appearance before the Senate Judiciary Committee on Tuesday, Mr. Gonzales denied that the dispute arose over the Terrorist Surveillance Program, whose existence was confirmed by President Bush in December 2005 after it had been disclosed by The New York Times. Mr. Gonzales said it centered on “other intelligence activities.”

Brian Roehrkasse, a spokesman for the Justice Department, said Thursday night that Mr. Gonzales had testified truthfully, saying “confusion is inevitable when complicated classified activities are discussed in a public forum where the greatest care must be used not to compromise sensitive intelligence operations.”

The spokesman said that when Mr. Gonzales had said there had been no controversy about the eavesdropping operation, he was referring only to the program to intercept international communications that Mr. Bush publicly confirmed.

“The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified,” Mr. Roehrkasse said.

The four senators seeking an inquiry into Mr. Gonzales’s testimony sent a letter to the Justice Department saying “it is apparent that the attorney general has provided at a minimum half-truths and misleading statements.”

The senators asked for the appointment of a special counsel. While the Justice Department is not obliged to act on their request, the letter reflected the chasm of distrust that has opened between lawmakers on the Judiciary Committee and Mr. Gonzales.

The senators who signed the letter were Russell D. Feingold of Wisconsin, Dianne Feinstein of California, Charles E. Schumer of New York and Sheldon Whitehouse of Rhode Island. Ms. Feinstein, Mr. Feingold and Mr. Whitehouse are members of the Intelligence Committee and have been briefed on the intelligence programs at issue.

The senators’ letter was sent to Paul D. Clement, the solicitor general, because Mr. Gonzales is recused from investigations of his own conduct. In addition to his statements to Congress about the intelligence controversy, the letter raised the possibility that Mr. Gonzales had lied about the prosecutor firings.

In what amounted to a warning to the attorney general, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, sent Mr. Gonzales the transcript of Tuesday’s hearing, asking him to “mark any changes you wish to make to correct, clarify or supplement your answers so that, consistent with your oath, they are the whole truth.”

Similar requests are routinely sent to witnesses after hearings, but Mr. Leahy’s pointed language underscored his view of the seriousness of the dispute over Mr. Gonzales’s veracity.

Still, neither Mr. Leahy nor Senator Arlen Specter of Pennsylvania, the committee’s top Republican and a tough critic of Mr. Gonzales, joined in the call for a perjury investigation.

“I don’t think you rush off precipitously and ask for appointment of special counsel to run that kind of an investigation,” Mr. Specter said.

Doubts about Mr. Gonzales’s version of events in March 2004 grew after James B. Comey, the former deputy attorney general, testified in May that he and other Justice Department officials were prepared to resign over legal objections to an intelligence program that appeared to be the N.S.A. program.

Mr. Gonzales’s testimony Tuesday was his first since Mr. Comey’s account drew national attention. He stuck to his account, repeatedly saying that the dispute involved a different intelligence activity.

Mr. Gonzales described an emergency meeting with Congressional leaders at the White House on March 10, 2004, to discuss the dispute. That evening, he and the White House chief of staff, Andrew H. Card Jr., went to the hospital bedside of Mr. Ashcroft in an unsuccessful effort to get his reauthorization for the secret program.

Lawmakers present at the afternoon meeting have given various accounts, but several have said that only one program, the Terrorist Surveillance Program, was discussed.

In addition, in testimony last year, Gen. Michael V. Hayden, who was the N.S.A. director when the program started and now heads the Central Intelligence Agency, said the March 2004 meeting involved the Terrorist Surveillance Program.

see also

Ashcroft and the Night Visitors

By Dana MilbankWednesday, May 16, 2007;

As if Attorney General Alberto Gonzales didn't have enough trouble, now comes word that, before coming to the Justice Department, Gonzales preyed on the infirm.
In hair-raising testimony before a Senate committee yesterday, Jim Comey, the former No. 2 official at the Justice Department, described what might be called the Wednesday Night Massacre of March 10, 2004. Gonzales, then the White House counsel, and White House Chief of Staff Andrew Card staged a bedside ambush of Attorney General John Ashcroft while he lay in intensive care. Comey, serving as acting attorney general during Ashcroft's incapacitation, testified about how, on a tip from Ashcroft's wife, he intercepted the pair in Ashcroft's hospital room.
"The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card," Comey told the spellbound senators. "They came over and stood by the bed." They wanted Ashcroft to sign off on an eavesdropping plan that Comey and others at the Justice Department had already called legally indefensible.
Ashcroft "lifted his head off the pillow and in very strong terms expressed his view of the matter" -- that Comey was right. "And as he laid back down, he said, 'But that doesn't matter, because I'm not the attorney general. There is the attorney general.' And he pointed to me."
Gonzales and Card "did not acknowledge me," Comey testified. "They turned and walked from the room."
The Democrats on the Senate Judiciary Committee stared. The lone Republican in attendance, Arlen Specter (Pa.), looked down. The 6-foot-8 Comey, slightly hunched in the witness chair, swallowed frequently and kept his hands in his lap as he spun a narrative worthy of Dashiell Hammett.
"I thought I just witnessed an effort to take advantage of a very sick man," Comey told the quiet chamber. His voice grew thick and he cleared his throat as he explained how he prepared to resign. "I couldn't stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis."
Comey had come before the committee to discuss Gonzales's botched firing of U.S. attorneys. Instead, under questioning from Sen. Charles Schumer (D-N.Y.), he gave his account of Gonzales's dark-of-night attempt to emasculate the department he would soon lead. The testimony had all the more impact because it came the morning after Deputy Attorney General Paul McNulty became the fourth senior official to resign in the prosecutor mess.
If Comey's testimony had the grip of mystery yesterday, Gonzales's defense had the feel of farce, as he heaped blame on McNulty for the mishandled firings. "The deputy attorney general is the direct supervisor of the United States attorneys," Gonzales volunteered at a National Press Club breakfast. He added: "I went back to the deputy attorney general and I asked Paul, 'Do you still stand by the recommendations?' And he said, 'Yes.' "
At the hearing, Specter offered a different view of McNulty's departure. "It's embarrassing for a professional to work for the Department of Justice today," he said, calling the resignation "evidence that the department really cannot function with the continued leadership or lack of leadership of Attorney General Gonzales."
Despite public pleas from a "lonely" Specter, the other Republicans on the committee didn't risk an appearance. Even the White House declined to counter Comey, who has a reputation for honesty. "You've got somebody who has splashy testimony on Capitol Hill -- good for him," presidential press secretary Tony Snow dodged.
In truth, nothing Snow could have said would have matched Comey's testimony. Comey recounted how, while driving home at 8 p.m. on that day in 2004, he got word that Mrs. Ashcroft had received a call -- possibly from President Bush himself -- to say Gonzales and Card were coming.
"I told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly," Comey testified. "I got out of the car and ran up -- literally ran up the stairs with my security detail. . . . I raced to the hospital room, entered." The room was dark, and Ashcroft was "pretty bad off."
In Comey's account, he got FBI Director Robert Mueller to tell his agents guarding Ashcroft not to let Card and Gonzales evict Comey from the room. A few minutes after the bedside confrontation, Card called the hospital. He "demanded that I come to the White House immediately," Comey testified. "I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present."
"He replied, 'What conduct? We were just there to wish him well.' " After Card demanded to know if Comey was "refusing to come to the White House," Comey, with the solicitor general, finally arrived at the West Wing at 11 p.m. His narrative covered the next two days, ending when Bush intervened and avoided a spate of resignations.
The senators had some trouble finding words for what they had heard. "This story makes me gulp," Schumer said.
Specter invoked the firing of the Watergate prosecutor. "It has some characteristics of the Saturday Night Massacre," he said. And the senator left little doubt about whom he blamed.
"Can you give us an example of an exercise of good judgment by Alberto Gonzales?" he asked.
This time, Comey had no narrative. "Let the record show a very long pause," Specter said.

Cheney Defends Efforts to Obtain Records

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January 15, 2007

By MARK MAZZETTI

Vice President Dick Cheney yesterday defended efforts by the Pentagon and the Central Intelligence Agency to obtain financial records of Americans suspected of terrorism or espionage, calling the practice a “perfectly legitimate activity” used partly to protect troops stationed on military bases in the United States.

But the chairman of the House Intelligence Committee expressed concern over the expansion of the military’s domestic intelligence collection efforts and said his committee would investigate how the Pentagon was using its authority.

Appearing on “Fox News Sunday,” Mr. Cheney said “national security letters” issued to banks and credit agencies were an essential tool for investigating terrorism cases in the United States.

He said the Pentagon had crossed no legal boundaries in issuing the letters independent of the Federal Bureau of Investigation.

“There’s nothing wrong with it or illegal,” Mr. Cheney said. “It doesn’t violate people’s civil rights. And if an institution that receives one of these national security letters disagrees with it, they’re free to go to court to try to stop its execution.”

Representative Silvestre Reyes, a Texas Democrat who is the new chairman of the House Intelligence Committee, said his panel would examine the matter. Mr. Reyes also indicated that he might renew efforts to pass a law requiring various agencies to get court approval before issuing national security letters.

“Any expansion by the department into intelligence collection, particularly on U.S. soil, is something our committee will thoroughly review,” he said in a statement issued to the news media.

Since the Sept. 11 attacks, the Pentagon has issued hundreds of letters to American banks and other financial institutions seeking information about suspects in counterterrorism or counterespionage investigations.

Banks are not required to hand over the information, but Pentagon officials said that financial institutions usually complied.

The C.I.A. also uses the letters as an investigative tool, but issues them far less frequently than does the Pentagon, intelligence officials said.

The use of the national security letters by the Pentagon and the C.I.A. was first reported in The New York Times yesterday.

By law, the Pentagon and the C.I.A. are barred from any domestic law enforcement activities. But government officials said that their authority to issue the letters dated back several decades and was strengthened by the USA Patriot Act, an antiterrorism law passed in 2001.

Mr. Cheney said yesterday that the letters were valuable for protecting American forces stationed at hundreds of bases in the United States.

Since Sept. 11, the Pentagon has increased its domestic intelligence collection efforts to help ensure that American bases are protected from potential terrorist attacks.

The efforts have been criticized by civil liberties organizations, who say the Pentagon is using “force protection” to spy on Americans and collect information on groups like war protesters.

The American Civil Liberties Union said yesterday that it had “serious concerns” about the use of the letters by the Pentagon and the C.I.A., and it called for a Congressional investigation to examine the frequency and legal basis for the records demands, along with civil liberties safeguards in place.

“This country has a long tradition of rejecting the use of the C.I.A. and the Pentagon to spy on Americans, and rightfully so,” said Caroline Fredrickson, director of the A.C.L.U.’s Washington office. “Today’s published report that the Pentagon and C.I.A. have been relying on ‘national security letters’ to collect the financial records of Americans without judicial supervision or Congressional oversight raises a host of questions that need to be answered.”

Pentagon officials said the financial documents obtained through the national security letters usually did not establish an individual’s links to terrorism or espionage and had rarely led to criminal charges.

But officials said the records still had intelligence value, and the Pentagon plans within the next year to incorporate the records into a database at its Counterintelligence Field Activity office.

With the Democrats now in charge of both houses of Congress, the House and the Senate Intelligence Committees are planning hearings on various intelligence programs conducted by the Bush administration since Sept. 11, 2001.

At the top of the agenda are hearings on the National Security Agency’s domestic surveillance program and the C.I.A.’s detention and interrogation of terrorism suspects.

Mr. Reyes indicated yesterday that the military’s domestic collection efforts could also be a priority for his committee.

“We want our intelligence professionals to have strong tools that will enable them to interrupt the planning process of our enemies and to stop attacks against our country,” his statement said.

“But in doing so, we also want those tools to comply fully with the law and the Constitution.”

Bush Claims Right to Open Mail

By Dan Froomkin

Special to washingtonpost.com
Thursday, January 4, 2007; 12:38 PM

The New York Daily News today reports on a signing statement President Bush quietly issued two weeks ago, in which he asserts his right to open mail without a warrant.

Signing statements have historically been used by presidents mostly to explain how they intend to enforce the laws passed by Congress; Bush has used them to quietly assert his right to ignore those laws.

James Gordon Meek writes about the latest: "President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant, the New York Daily News has learned.

"The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a 'signing statement' that declared his right to open people's mail under emergency conditions.

"That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it. . . .

"Most of the Postal Accountability and Enhancement Act deals with mundane reform measures. But it also explicitly reinforced protections of first-class mail from searches without a court's approval."

The signing statement said, in part:

"The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection."

Meek notes that White House spokeswoman Emily Lawrimore denied Bush was claiming any new authority.

Here is the signing statement in question. Here is information on the bill in question.

It shouldn't be a surprise that although Meek was almost two weeks late with this story -- which was a matter of public record -- he still got a scoop.

Bush's signing statements have been widely ignored by the traditional media, with the significant exception of Boston Globe reporter Charlie Savage, who is on book leave right now.

And sadly, most of the questions about signing statements that I raised in a Nieman Watchdog essay last June still remain unaddressed. Foremost among them: Are these signing statements just a bunch of ideological bluster from overenthusiastic White House lawyers -- or are they actually emboldening administration officials to flout the laws passed by Congress? If the latter, Bush's unprecedented use of these statements constitutes a genuine Constitutional crisis.

Fine Print in Defense Bill Opens Door to Martial Law

Fine Print in Defense Bill Opens Door to Martial Law
By Jeff Stein, CQ National Security Editor

It’s amazing what you can find if you turn over a few rocks in the anti-terrorism legislation Congress approved during the election season.

Take, for example, the John W. Warner Defense Authorization Act of 2006, named for the longtime Armed Services Committee chairman from Virginia.

Signed by President Bush on Oct. 17, the law (PL 109-364) has a provocative provision called “Use of the Armed Forces in Major Public Emergencies.”

The thrust of it seems to be about giving the federal government a far stronger hand in coordinating responses to Katrina-like disasters.

But on closer inspection, its language also alters the two-centuries-old Insurrection Act, which Congress passed in 1807 to limit the president’s power to deploy troops within the United States.

That law has long allowed the president to mobilize troops only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.”

But the amended law takes the cuffs off.

Specifically, the new language adds “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident” to the list of conditions permitting the President to take over local authority — particularly “if domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.”

Since the administration broadened what constitutes “conspiracy” in its definition of enemy combatants — anyone who “has purposely and materially supported hostilities against the United States,” in the language of the Military Commissions Act (PL 109-366) — critics say it’s a formula for executive branch mischief.

Yet despite such a radical turn, the new law garnered little dissent, or even attention, on the Hill.

One of the few to complain, Sen. Patrick J. Leahy, D-Vt., warned that the measure virtually invites the White House to declare federal martial law.

It “subverts solid, longstanding posse comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the President to declare martial law,” he said in remarks submitted to the Congressional Record on Sept. 29.

“The changes to the Insurrection Act will allow the President to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor,” he said.

Moreover, he said, it breaks a long, fundamental tradition of federal restraint.

“Using the military for law enforcement goes against one of the founding tenets of our democracy.”

And he criticized the way it was rammed through Congress.

It “was just slipped in the defense bill as a rider with little study,” he fumed. “Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.”

No matter: Safely tucked into the $526 billion defense bill, it easily crossed the goal line on the last day of September.
Silence

The language doesn’t just brush aside a liberal Democrat slated to take over the Judiciary Committee come January. It also runs over the backs of the governors, 22 of whom are Republicans.

The governors had waved red flags about the measure on Aug. 1, sending letters of protest from their Washington office to the Republican chairs and ranking Democrats on the House and Senate Armed Services committees.

No response. So they petitioned the party heads on the Hill — Sens. Bill Frist, R-Tenn., and Harry Reid, D-Nev., Speaker of the House J. Dennis Hastert, R-Ill., and his Democratic opposite, Nancy Pelosi of California.

“This provision was drafted without consultation or input from governors,” said the Aug. 6 letter signed by every member of the National Governors Association, “and represents an unprecedented shift in authority from governors . . .to the federal government.”

“We urge you,” they said, “to drop provisions that would usurp governors’ authority over the National Guard during emergencies from the conference agreement on the National Defense Authorization Act.”

Again, no response from the leadership, said David Quam, the National Governors Association’s director of federal relations.

On Aug. 31, the governors sent another letter to the congressional party leaders, as well as to Defense Secretary Donald H. Rumsfeld, who had met quietly with an NGA delegation back in February.

The bill “could encroach on our constitutional authority to protect the citizens of our states,” they protested, complaining again about how the provision had been dumped on a midnight express.

“Any issue that affects the mission of the Guard in the states must be addressed in consultation and coordination with governors,” they demanded.

“The role of the Guard in the states and to the nation as a whole is too important to have major policy decisions made without full debate and input from governors throughout the policy process.”

More silence.

“We did not know until the bill was printed where we stood,” Quam said.

That’s partly the governors’ own fault, said a Republican Senate aide.

“My understanding is that they sent form letters to offices,” she said. “If they really want a piece of legislation considered they should have called offices and pushed the matter. No office can handle the amount of form letters that come in each day.”

Quam disputed that.

“The letter was only the beginning of the conversation,” he said. “The NGA and the governors’ offices reached out across the Hill.”
Blogosphere

Looking back at the government’s chaotic response to Katrina, it’s not altogether surprising that the provision drew so little opposition in Congress and attention from the mainstream media.

And of course, it was wrapped in a monster defense bill related to the emergency in Iraq.

But the blogosphere, of course, was all over it.

A close analysis of the bill by Frank Morales, a 58-year-old Episcopal priest in New York who occasionally writes for left-wing publications, spurred a score of liberal and conservative libertarian Web sites to take a look at it.

But a search of The Washington Post and New York Times archives, using the terms “Insurrection Act,” “martial law” and “Congress,” came up empty.

That’s not to say the papers don’t care: There’s just too much going on in the global war on terror to keep up with, much less write about such a seemingly insignificant provision. The martial law section of the Defense Appropriation Act, for example, takes up just a few paragraphs in the 591-page document.

What else is in there? More intriguing stuff, it looks like — and I’m working my way through it.

House Approves Warrantless Wiretap Law

House Approves Warrantless Wiretap Law

By LAURIE KELLMAN
The Associated Press
Friday, September 29, 2006; 1:27 AM

WASHINGTON -- The House approved a bill Thursday that would grant legal status to President Bush's warrantless wiretapping program with new restrictions. Republicans called it a test before the election of whether Democrats want to fight or coddle terrorists.

"The Democrats' irrational opposition to strong national security policies that help keep our nation secure should be of great concern to the American people," Majority Leader John Boehner, R-Ohio, said in a statement after the bill passed 232-191.

"To always have reasons why you just can't vote 'yes,' I think speaks volumes when it comes to which party is better able and more willing to take on the terrorists and defeat them," Boehner said.

Democrats shot back that the war on terrorism shouldn't be fought at the expense of civil and human rights. The bill approved by the House, they argued, gives the president too much power and leaves the law vulnerable to being overturned by a court.

"It is ceding the president's argument that Congress doesn't matter in this area," said Rep. Chris Van Hollen, D-Md.

The bill, sponsored by Rep. Heather Wilson, R-N.M., that give legal status under certain conditions to Bush's warrantless wiretapping of calls and e-mails between people on U.S. soil making calls or sending e-mails and those in other countries.

Under the measure, the president would be authorized to conduct such wiretaps if he:

_ Notifies the House and Senate intelligence committees and congressional leaders.

_ Believes an attack is imminent and later explains the reason and names the individuals and groups involved.

_ Renews his certification every 90 days.

The Senate also could vote on a similar bill before Congress recesses at the end of the week. Leaders concede that differences between the versions are so significant they cannot reconcile them into a final bill that can be delivered to Bush before the Nov. 7 congressional elections.

For its part, the White House announced it strongly supported passage of the House version but wasn't satisfied with it, adding that the administration "looks forward to working with Congress to strengthen the bill as it moves through the legislative process."

But with Congress giving Bush the other half of his September anti-terrorism agenda _ a bill setting conditions on how terrorism suspects are to be detained, interrogated and tried _ Republicans shifted from lawmaking to campaign mode.

After the House voted 253-168 to set rules on tough interrogations and military tribunal proceedings, Speaker Dennis Hastert, R-Ill., was even more critical than Boehner.

"Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of more rights for terrorists," Hastert said in a statement. "So the same terrorists who plan to harm innocent Americans and their freedom worldwide would be coddled, if we followed the Democrat plan. "

Retorted Pelosi: "I think the speaker is a desperate man for him to say that. Would you think that anyone in our country wants to coddle terrorists?"

She and other Democratic critics of the GOP's September anti-terrorism agenda contend the Republican-written bills make Bush's programs vulnerable to being overturned in court. More broadly, they argue the legislation reflects the White House's willingness to fight the war on terrorism at the expense of civil and human rights.

A Democratic majority in either House would set the balance right, Democrats say. "In 40 days, we can put an end to this nonsense," said Sen. Edward Kennedy, D-Mass, referring to the election.

A federal judge in Detroit who struck down the warrantless surveillance program turned aside a government request for an indefinite stay Thursday. U.S. Judge Anna Diggs Taylor said the government could have a week to appeal.

___

The House bill is H.R. 5825; the Senate bill is S. 3931.

___

On the Net:

Many Rights in U.S. Legal System Absent in New Bill

Many Rights in U.S. Legal System Absent in New Bill

By R. Jeffrey Smith
Washington Post Staff Writer
Friday, September 29, 2006; A13

The military trials bill approved by Congress lends legislative support for the first time to broad rules for the detention, interrogation, prosecution and trials of terrorism suspects far different from those in the familiar American criminal justice system.

President Bush's argument that the government requires extraordinary power to respond to the unusual threat of terrorism helped him win final support for a system of military trials with highly truncated defendant's rights. The United States used similar trials on just four occasions: during the country's revolution, the Mexican-American War, the Civil War and World War II.

Included in the bill, passed by Republican majorities in the Senate yesterday and the House on Wednesday, are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.

The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.

By writing into law for the first time the definition of an "unlawful enemy combatant," the bill empowers the executive branch to detain indefinitely anyone it determines to have "purposefully and materially" supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death.

At the same time, the bill immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of detainees who the military and the CIA captured before the end of last year. It gives the president a dominant but not exclusive role in setting the rules for future interrogations of terrorism suspects.

Written largely, but not completely, on the administration's terms, with passages that give executive branch officials discretion to set details or divert from its protections, the bill is meant to provide what Bush said yesterday are "the tools" needed to handle terrorism suspects U.S. officials hope to capture.

For more than 57 months after the 2001 terrorist attacks on the World Trade Center and the Pentagon, Bush maintained that he did not need congressional authorization of such tools. But the Supreme Court decided otherwise in June, declaring the administration's detainee treatment and trial procedures illegal, and ruling that Bush must first seek Congress's approval.

Now Bush has received much of the authority he desired from party loyalists and a handful of Democrats on Capitol Hill. "The American people need to know we're working together," Bush told senators before yesterday's vote.

But Tom Malinowski, the Washington office director for Human Rights Watch, said Bush's motivation is partly to protect his reputation by gaining congressional endorsement of controversial actions already taken. "He's been accused of authorizing criminal torture in a way that has hurt America and could come back to haunt our troops. One of his purposes is to have Congress stand with him in the dock," Malinowski said.

The bill contains some protections unavailable to the eight Nazi saboteurs who came ashore in the United States in 1942 and were captured two weeks later. Six were executed that year after a closed military trial on the fifth floor of Justice Department headquarters. That proceeding was upheld by the Supreme Court in a decision it explained two months after the electrocutions.

Under the new procedures, trials are supposed to be open, but can be closed to protect the security of individuals or information expected to harm national security. Defendants have a right to be present, unless they are disruptive, and a right to examine and respond to the evidence against them. Proof of guilt must exceed a reasonable doubt.

Many constitutional experts say, however, that the bill pushes at the edges of so much settled U.S. law that its passage will not be the last word on America's detainee policies. They predict it will shift the public debate to the federal courts, a forum where the administration has had less success getting its way on counterterrorism policies.

"This is a full-employment act for lawyers," said Deborah Perlstein, who directs the U.S. Law and Security Program at the New York-based nonprofit group Human Rights First.

Former White House associate counsel Bradford A. Berenson, a supporter of the bill and one of the authors of the rules struck down by the Supreme Court, agreed. "Some of the most creative legal minds are going to be devoted to poking holes in this," he said.

Anticipating court challenges, the administration attempted to make the bill bulletproof by including provisions that would sharply restrict judicial review and limit the application of international treaties -- signed by Washington -- that govern the rights of wartime detainees.

The bill also contains blunt assertions that it complies with U.S. treaty obligations.

University of Texas constitutional law professor Sanford V. Levinson described the bill in an Internet posting as the mark of a "banana republic." Yale Law School Dean Harold Koh said that "the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it's not clear that most of the members understand what they've done."

In contrast, Douglas W. Kmiec, a professor of constitutional law at Pepperdine University, said Congress "did reasonably well in terms of fashioning a fair" set of procedures. But Kmiec and many others say they cannot predict how the Supreme Court will respond to the provision barring habeas corpus rights, which he said will leave "a large body of detainees with no conceivable basis to challenge their detentions."

There are other likely flashpoints. In the Supreme Court's June decision overturning previous administration policies, four members of the court who joined the majority opinion said conspiracy is not a war crime. The new bill says it is.

Georgetown University law professor Neal Katyal said the bill's creation of two systems of justice -- military commissions for foreign nationals and regular criminal trials for U.S. citizens -- may violate the Constitution's 14th Amendment, which requires equal protection of the laws to anyone under U.S. jurisdiction.

"If you're an American citizen, you get the Cadillac system of justice. If you're a foreigner or a green-card holder, you get this beat-up-Chevy version," he said.
© 2006 The Washington Post Company

We've lost

jurisprudence
The Blind Leading the Willing
A compromise between those who don't care and those who don't want to know.
By Dahlia Lithwick
Posted Wednesday, Sept. 27, 2006, at 6:11 PM ET

Is it still called a compromise when the president gets everything he wanted?

A major detainee bill hurtling down the HOV lane in Congress today would determine the extent to which the president can define and authorize torture. The urgency to pass this legislation has nothing to do with a new need to interrogate alleged enemy combatants. The urgency is about an election.

Last time Congress rubber-stamped a major terrorism-related law no one had bothered to read in the first place, we got the Patriot Act. That alone should lead us to wonder whether there shouldn't be a mandatory three-month cooling-off period whenever Congress enacts broad laws that rewrite the Constitution.

The White House version of the detainee bill met with some resistance among ranking GOP members of Congress last week, but not enough to matter. And now, with a "compromise" at hand, nobody seems to agree on the meaning of the bargain we've struck. Sen. John McCain still believes that he's won on the bedrock principle of U.S. adherence to the Geneva Conventions. The Bush administration sees it as granting the president the authority to decide what Geneva really means.

That led to all the confusion last Sunday, when, appearing on Face the Nation, McCain claimed that the current bill "could mean that … extreme measures such as extreme deprivation—sleep deprivation, hypothermia, and others would be not allowed." This, on the same weekend that the editors at the Wall Street Journal crowed: "It's a fair bet that waterboarding—or simulated drowning, the most controversial of the CIA's reported interrogation techniques—will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster." So, what did we agree to? Is hypothermia in or out? What about sexual degradation or forcing prisoners to bark like dogs? Stress positions?

I'd wager that any tie goes to the White House. One hardly needs a law degree to understand that in a controversy over detainee treatment between the executive and legislative branches, the trump will go to the guy who's holding the unnamed detainees in secret prisons.

That brings us to a second stunning aspect of the so-called compromise: Not only do our elected officials have no idea what deal they've just struck, but they also have no idea what they were even bargaining about. In his Face the Nation interview, McCain revealed that he was in fact quite clueless as to what these "alternative interrogation measures"—the ones the president insists the CIA must use—actually include. "It's hard for me to get into these techniques," McCain said. "First of all, I'm not privy to them, but I only know what I've seen in public reporting."

Asked whether he had "access to more information about this than any of us because you've been in the negotiations," the senator was not reassuring. He knows "only what the president talked about in his speech." To clarify: McCain, the Geneva Conventions' great defender, is signing off on interrogation limits he knows nothing about. And so, it appears, will the most of the rest of Congress.

But that's not all. Congress doesn't want to know what it's bargaining away this week. In the Boston Globe this weekend, Rick Klein revealed that only "10 percent of the members of Congress have been told which interrogation techniques have been used in the past, and none of them know which ones would be permissible under proposed changes to the War Crimes Act." More troubling still, this congressional ignorance seems to be by choice. Klein quotes Sen. Jeff Sessions, the Alabama Republican, as saying, "I don't know what the CIA has been doing, nor should I know." Evidently, "widely distributing such information could result in leaks."

We've reached a defining moment in our democracy when our elected officials are celebrating their own blind ignorance as a means of keeping the rest of us blindly ignorant as well.

Over at the National Review Online they exult that the CIA torture program isn't just the president's project anymore. "Now it is just as much the program of Congress and of John McCain." Not quite right. Now it's the president's program that John McCain chooses not to know about.

And just to be completely certain, Congress is taking the courts down with it. No serious reader of the detainee-compromise bill can dispute that the whole point here is to sideline the courts. This bill immunizes some forms of detainee abuse and ignores others. It strips courts of habeas-corpus jurisdiction and denies so-called unlawful enemy combatants (a term that sweeps in citizens and noncitizens, Swiss grandmothers and Don Rumsfeld's neighbor if-that-bastard-doesn't-trim-his-hedge) the right to assert Geneva Convention claims in courts. Many detainees may never stand trial on the most basic question of whether they have done anything wrong. And courts will apparently now be powerless to do anything about any of this.

For the five years since 9/11, we have been in the dark in this country. This president has held detainees in secret prisons and had them secretly tortured using secret legal justifications. Those held in secret at Guantanamo Bay include innocent men, as do those who have been secretly shipped off to foreign countries and brutally tortured there. That was a shame on this president.

But passage of the new detainee legislation will be a different sort of watershed. Now we are affirmatively asking to be left in the dark. Instead of torture we were unaware of, we are sanctioning torture we'll never hear about. Instead of detainees we didn't care about, we are authorizing detentions we'll never know about. Instead of being misled by the president, we will be blind and powerless by our own choice. And that is a shame on us all.
Dahlia Lithwick is a Slate senior editor.

Article URL: http://www.slate.com/id/2150495/

Copyright 2006 Washingtonpost.Newsweek Interactive Co. LLC

Leading a Rebellion (Time article)

Why G.O.P. Senator Lindsey Graham is taking on the President over rules for enemy combatants
By KAREN TUMULTY, PERRY BACON JR. / WASHINGTON

If you want to understand how a baby-faced freshman Republican Senator from conservative South Carolina has come to be standing against President George W. Bush on the issue of how to interrogate and try terrorism suspects, it helps to know how Lindsey Graham spent part of his summer. A month ago, when most Senators were back home campaigning and fund raising, he was in Kabul, Afghanistan, answering to "Colonel." Wearing desert fatigues, with an M9 pistol strapped to his hip, Graham was conducting a two-day tutorial on the principles of U.S. military law at the Afghan Defense Ministry. He recalls coaching Afghan military lawyers, who are modeling their system after that of the U.S.: "It's important that when the troops act badly, they are punished to keep good order and discipline, but it's equally important that people believe that the punishment and the system itself are fair." The only Senator now serving in the National Guard or reserve, and the first in decades to do military duty in a combat zone, Graham adds, "It has to be based on what the person did and not who the person is."

That's pretty much the same argument that Graham is making back in Washington, where he is helping turn what looked like a smart political strategy into an internecine battle among Republicans on Capitol Hill. White House and congressional leaders had hoped that focusing on terrorism in the final months before a tight midterm election would give their party an advantage over the Democrats. But they didn't count on a rebellion in their own ranks, made worse by the fact that it is led by Graham and two more senior members of the Armed Services Committee who also have impressive military credentials: chairman John Warner, a former Secretary of the Navy who was a Marine ground officer in the Korean War, four years before Graham was born; and John McCain, a former Navy pilot whose father and grandfather were admirals and who still suffers from what he endured during 5 1/2 years in a North Vietnamese POW camp.

Graham got his battle testing in a military courtroom, first at Shaw Air Force Base in South Carolina and then as chief prosecutor for the Air Force in Europe during the 1980s. He insists that Bush's proposal to tamper with the interpretation of the Geneva Conventions and put detainees on trial without letting them see all the evidence against them would have far-reaching consequences because it would invite future enemies to do the same, or worse, to Americans they capture. That argument has drawn strong support from such powerful voices as Colin Powell, former Chairman of the Joint Chiefs of Staff and ex--Secretary of State, who in a rare public criticism of Bush policy sent McCain a letter warning that "the world is beginning to doubt the moral basis of our fight against terrorism." Caught in the middle have been Graham's fellow military lawyers, many of whom share misgivings about the detainee program. At a closed session of the Armed Services Committee last week, Senator John Cornyn of Texas brandished a letter signed by top lawyers of each service saying they "do not object" to a key part of Bush's plan. But he may have overstated their level of support. "That's not the whole story," Graham said to Cornyn, according to a witness. Last week, amid bitter Republican infighting and despite a White House lobbying effort that brought both Bush and Vice President Cheney to Capitol Hill, the committee defiantly passed the trio's proposal for trying and interrogating terrorism suspects, rather than Bush's. The showdown on the Senate floor, where majority leader Bill Frist is expected to introduce the President's proposal, is not likely to be pretty.

It's not the first time Graham has put the Bush Administration on the spot. When the Abu Ghraib prison scandal broke most inconveniently in a presidential election year, he demanded accountability up the chain of command. "What are we fighting for?" the Senator asked at a hearing. "To be like Saddam Hussein?" On Bush's biggest domestic initiative, Graham supported the President's idea to add individual savings accounts to Social Security but also suggested a heretical payroll-tax increase to finance them. He infuriated the right last year by joining the bipartisan, largely moderate "Gang of 14" that blocked a change in Senate rules that would have ended Democratic filibusters of Bush's judicial nominees. Graham more recently helped ice the appeals-court nomination of Defense Department counsel William Haynes, an architect of the Administration's detainee policy.

Support Ghraham and McCain

Briefly, here is a quote from an article on Saturday,

"Bush's proposed bill also would allow enemy combatants to be tried by military tribunals without having access to classified information used against them by prosecutors. But the Senate Armed Services Committee instead backed a rival bill by McCain that would make it more difficult to make classified information off-limits to the accused."

This is the deal folks, the reason why it is so important for the administration's proposal to be defeated is because if these tribunals are established,all the government would have to do is declare you an "enemy combatant" and your right to due process, guaranteed by the constitution, goes out the window.

Don't think it could happpen? Suppose you were in a feud with your neighbor and he called Homeland Security and told them that you were building bombs in your basement and that you were known for radical speech. At this point the government could label you a "terroist" and put you in jail with no recourse, no lawyer, no due process...indefinitely.


The sixth amendment to the Constitution guarantees us the right to confront our accusers and the evidence against us:

Amendment VI.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

I've already laid out a scenario that is not beyond possiblility. If we allow this administration to skirt the sixth amendment, then we are no better off than people in Communist China. Think about it...

Normalizing thuggery

Wednesday Bush admitted that the United States has secret CIA facilities around the world used to keep “terrorists” prisoner. He also reiterated that the US does not torture people. If that is the case, one has to wonder why back in January when the congress passed a law banning torture; Bush signed it and then issued a caveat saying that he would not have to abide by the law he just signed. The Washington Post wrote,

“On Friday, in signing the ban on torture, Bush issued a ''signing statement," saying he would interpret the restrictions in the context of his broader constitutional powers as commander in chief. A ''signing statement" is an official document in which a president lays out his interpretation of a new law.

A senior administration official later confirmed that the president believes the Constitution gives him the power to authorize interrogation techniques that go beyond the law to protect national security. But in enacting the law, Congress intended to close every loophole and impose an absolute ban on all forms of torture, no matter the circumstances, Graham said.”

How can anybody who signs something into law and then declares that the law only applies when its convenient, have any credibility with the people?

Now he has admitted what the world has known for a couple of years that the CIA operates “black” spots across the globe. Human rights watchers have suspected for quite a while that the United States has been keeping detainees in former Soviet, Eastern European nations like Romania.

Why would the United States need to use former eastern bloc nations like Romania to house detainees when there are traditional allies all over Europe?

It seems fairly simple to me that places like Romania, where communism only recently fell, would be a lot more accommodating when it comes to things like disregarding Geneva conventions and allowing torture. Ceausescu may be deposed, but his minions and the whole police state apparatus are probably not too far removed, after all, old habits die hard and it hasn’t even been a generation since the revolution. Not to mention the fact that the fledgling government would like to do anything possible to curry favor with the U.S.

The inevitable consequences of such a policy make me shudder. This is our new best friend, Romania?! The whole ex-eastern bloc part of the world, rampant with organized crime and a thousand year history of tribal feuds, not to mention Soviet gerrymandering, just makes the whole region a basket case. Criminals and thugs run the show, maybe that’s the kind of people the Bush administrations likes to cozy up to. It seems so.

If that is the case, then so be it, but if the war on terrorism is so critical that the United States needs to consort with criminal gangs, corrupt governments, and resort to torture and kidnapping then, haven’t we become the very thing we purport to be combating?

Rene van der Linden, president of the Council of Europe's Parliamentary Assembly said on Wednesday,

“Kidnapping people and torturing them in secret, however tempting the short-term gain may appear to be, is what criminals do, not democratic governments,

"In the long term, such practices create more terrorists and undermine the values we are fighting for," he said. - AP

I think he hit the nail on the head. Although the American ideal is basically just an abstraction not really based in reality, it is an ideal none the less. Our ideals and image of ourselves, no matter how far fetched, go to the core of our civilization. When we think, act, behave and associate with thugs, we become thugs in reality. Any notion of high minded ideals and morality cannot coincide with a gangster mentality.

So when our leaders rationalize repugnant activity and claim it is for the benefit of our safety, we are intellectually and culturally diluted. Bad behavior becomes the norm because it is tolerated at the highest level.

We were constantly reminded by Republicans that Clinton’s peccadilloes while in office were setting a low moral standard for impressionable American kids. This has borne out, mostly, to be true. Why should it be any different now?