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Friday, May 19, 2006

Adjusting the Law

"In short, the problem with what Bush did is merely procedural, not moral. The first priority, at any rate, is to make whatever Bush has been doing legal by adjusting the law."

Phone Data Gathering Crosses A Line

In the summer of 2001, local police in Tempe, Ariz., suspected a grocery wholesaler of organizing a baby food stealing ring. After Sept. 11, 2001, the Phoenix police claimed they had “confirmed” the suspect “had significant connections to terrorist organizations, including al-Qaeda.” The local authorities were able to get a national security warrant under the Foreign Intelligence Surveillance Act, or FISA. The evidence they procured from bugging the suspect's office and tapping his phone led to the man's conviction and a 10-year prison sentence. He was never actually charged with a terrorism-related crime.

Surely the Tempe police could have waited and gotten the standard warrants. But just as surely, that would have been less convenient for the investigators. They would have actually had to demonstrate probable cause to a regular judge, instead of to a secret federal FISA court, which rubber-stamps nearly every warrant request it receives and is accountable to virtually no one.

It appears that all the government has to do is assert that someone has terrorist connections and the customary safeguards of due process are swept away, regardless of whether there is any evidence of a terrorist connection. The baby food case illustrates how encompassing the war on terror has become. Recent reports of federal spying on such peaceful political activists as Quakers and ACLU members and use of the Patriot Act to combat online gambling also illustrate the problem.

Ever since the Bush administration's secret, warrantless NSA spying became publicized, its defenders have argued that Bush doesn't even need to abide by FISA's weak limits on his power. They insist the president has all the authority he needs thanks to the Constitution's commander in chief clause and Congress' authorization of force against the Sept. 11 perpetrators, passed shortly after Sept. 11. The attorney general has implied that this authorization gives Bush even more power than would a more limited and precise declaration of war on a specified foreign state. The entire world, in fact, is a battleground in this new kind of war, according to this argument, and the president can't be limited in his power or the United States could be attacked again by terrorists. And given that the president has the Supreme Court-approved authority to detain “enemy combatants” without trial, surely he can listen in on some phone calls.

But if the president really has all this “inherent authority” to detain and spy on everyone without judicial review, then why did he need the Patriot Act? Why does he insist that the Patriot Act is a crucial, indispensable tool in the war on terror? What does it enable Bush to do that he doesn't have the “inherent authority” to do without it? The Republican position on this is downright incoherent and suggests the purpose of all this anti-terror legislation is not really to enable the president to do what he must do but could not do without it. Rather, it is to make the American people believe the administration is acting properly and democratically in doing what it, in reality, intends to do regardless of the law.

The top Democrats have a disturbing response. They argue that the executive powers granted by the FISA program, and further aggrandized by the Patriot Act, should have been sufficient for the war on terror. If not, the Democrats reassure us, they would have been just as happy as the Republicans to expand Bush's powers if only he asked. In short, the problem with what Bush did is merely procedural, not moral. The first priority, at any rate, is to make whatever Bush has been doing legal by adjusting the law.

If any law is valid, the Bill of Rights and the Constitution (still the supreme law of the land) should trump statutory law where there's conflict. The Fourth Amendment is clear on the issue of warrants. They require probable cause, must be supported by oath or affirmation, and must describe with particularity the place to be searched and the persons or things to be seized.

In every case the officer must provide to the magistrate enough facts and circumstances to demonstrate probable cause. He must swear to the court that the person about to be searched is worth searching. If he takes the oath dishonestly, he is guilty of perjury. And the government agent better have a very, very good idea what he expects to find.

The secret FISA courts do not meet this standard, and neither do the sneak-and-peak searches authorized by the Patriot Act. Instead, they allow investigators to snoop on Americans without any traditional court warrant, only a secret and unaccountable administrative or judicial decree. Laws like FISA and the Patriot Act abuse our privacy, system of checks and balances and constitutional government. These abusive laws must be repealed for the sake of American liberty.

Bush's defenders have yet to show how effective the new powers have actually been in fighting terror. So far they've only been effective in nabbing common criminals and spying on ordinary Americans. Rather than proof of success, they offer the claim that the president obviously has these powers, and imply that any critical discussion of such important issues is a threat to national security. And yet we are still supposed to believe that they are not championing power for power's sake.

By Anthony Gregory
May 12, 2006

Gregory is a research analyst at the Oakland-based Independent Institute.


Aiding and Abetting Gen. Snoopy's Police State

"When Specter meets a stonewall, he caves. He may ask telephone company CEOs why they surrendered records to the government, but—illegal eavesdropping or no—Specter will likely remain a spectator, as Pat Roberts greases the skids for Big Brother Gen. Michael Hayden, architect and implementer of eavesdropping on Americans in violation of FISA, to become the next director of the CIA. Hayden’s disingenuousness in his testimony before the intelligence committees has been clear, but the committee chairmen are as much to blame for winking at it."

Bowing To The Police State

Is Congress aiding and abetting the creation of a police state? Recently, the chairman of the House Intelligence Committee, Pete Hoekstra, R-Mich., helped to give the CIA and NSA unprecedented police powers. By inserting a provision in the FY07 Intelligence Authorization Act, Hoekstra has undermined the existing statutory limits on involvement in domestic law enforcement. This comes after revelations in January of direct NSA involvement with the Baltimore police in order to "protect" the NSA Headquarters from Quaker protesters.

Add to this, the disquieting news that the White House has been barraging the CIA with totally improper questions about the political affiliation of some of its senior intelligence officers, the ever widening use of polygraph examinations, and the FBI’s admission that it acquires phone records of broadcast and print media to investigate leaks at the CIA. I, for one, am reminded of my service in the police state of the U.S.S.R., where there were no First or Fourth Amendments.

Like the proverbial frog in slowly boiling water, we have become inured to what goes on in the name of national security. Recent disclosures about increased government surveillance and illegal activities would be shocking, were it not for the prevailing outrage-fatigue brought on by a long train of abuses. But the heads of the civilian, democratically elected institutions that are supposed to be our bulwark against an encroaching police state, the ones who stand to lose their own power as well as their rights and the rights of all citizens, aren’t interested in reining in the power of the intelligence establishment. To the contrary, Rep. Hoekstra and his counterpart at the Senate, Pat Roberts, R.-Kan., are running the risk of whiplash as they pivot to look the other way.

James Bamford, one of the best observers of the inner workings of U.S. intelligence, warned recently that Congress has lost control of the intelligence community. “You can’t get any oversight or checks and balances,” he said. “Congress is protecting the White House, and the White House can do whatever it wants.”

Consider the following nuggets drawn from Sunday’s Washington Post article by R. Jeffrey Smith about the firing of senior CIA analyst Mary McCarthy. Apparently McCarthy learned that at least one “senior agency official” lied to Congress about agency policy and practice with regard to torturing detainees during interrogations.

According to Smith’s article, one internal CIA study completed in 2004 concluded that CIA interrogation policies and techniques violated international law. This is said to have come as something of a shock to agency interrogators who had been led by the Justice Department to believe that international conventions against torture did not apply to interrogations of foreigners outside of the United States. McCarthy reportedly was also chagrined to learn that the CIA’s general counsel had secured a secret Justice Department opinion in 2004 authorizing the creation of a category of “ghost detainees,” prisoners transported abroad, mostly from Iraq, for secret interrogation—without notification of the Red Cross, as required by the Geneva Convention.

No problem, said senior CIA officials. We’ll just lie to the committee leaders about the torture; they will wink and be grateful we did. The lying came during discussion of draft legislation aimed at preventing torture. As deputy inspector general, McCarthy became aware that CIA officials had misled the chairmen and ranking members of the congressional “oversight” committees on multiple occasions. Neither of the committees seemed interested in taking a serious look at the torture issue.

It will be highly interesting to see what the intrepid chairmen of the House and Senate intelligence committees do, if anything, to followup on Smith’s report that “a senior CIA official” meeting with Senate staff last June lied about the agency’s interrogation practices. Or that a “senior agency official” failed to provide a full account of CIA’s policy for treating detainees at a closed hearing of the House intelligence committee in Feb. 2005 under questioning by Rep. Jane Harman, the ranking Democrat. Will Roberts and Hoekstra hold those agency officials accountable, or will they let the matter die—like some of the detainees subjected to “enhanced” interrogation techniques to which the chairmen have so far turned a blind eye?

Hoekstra is a master at Catch-22. On the one hand Hoekstra insists that those in intelligence who have information on illegal or improper behavior report it to his intelligence committee; then he refuses to let them in the door. Russell Tice, a former NSA employee, has been trying since last December to give Hoekstra a first-hand account of illegal activities at the NSA. He has rebuffed Tice, with the lame explanation that the NSA will not clear Hoekstra or any of his committee members for the highly classified programs about which Tice wants to report. With the door locked to the intelligence committees, Tice has turned to the Senate Armed Services Committee and said that he will meet soon with committee staff in closed session to tell of “probable unlawful and unconstitutional acts” at the NSA while Gen. Michael Hayden was in charge.

Amid the recent revelations of secret CIA-run prisons abroad, torture and illegal eavesdropping, Hoekstra has chosen to express outrage—but not at the prisons, torture or eavesdropping. Rather, the House Intelligence Committee chairman is outraged that information on these abuses has found its way onto the public square. Hoekstra has turned his full attention to pursuing those who leak such information—never mind that is the activities disclosed, not the leaks, that are the real outrage.

The executive branch is “walking all over the Congress at the moment,” complained Sen. Arlen Specter, R.-Pa., last week to the Senate Judiciary Committee which he chairs. Unlike Roberts and Hoekstra, Specter seems genuinely troubled at the president’s disdain for the separation of powers and particularly his end-run around the Foreign Intelligence Surveillance Act of 1978, which prohibits eavesdropping on American citizens without a court warrant.

But when Specter meets a stonewall, he caves. He may ask telephone company CEOs why they surrendered records to the government, but—illegal eavesdropping or no—Specter will likely remain a spectator, as Pat Roberts greases the skids for Big Brother Gen. Michael Hayden, architect and implementer of eavesdropping on Americans in violation of FISA, to become the next director of the CIA. Hayden’s disingenuousness in his testimony before the intelligence committees has been clear, but the committee chairmen are as much to blame for winking at it.

Meanwhile, the Justice Department has told Rep. Maurice Hinchey, D.-N.Y., that it is stopping its months-long investigation into who approved the NSA’s eavesdropping-on-American-citizens initiative (now euphemistically dubbed “the terrorist surveillance program”). Justice explained to Hinchey that the NSA would not grant Justice department investigators the appropriate security clearances to investigate the NSA program. Kafka would smirk.

Rep. Hoekstra’s speaks of “vigorous oversight” of the NSA, but the evidence of that is lacking. Late last year the current head of the NSA, Army Lt. Gen. Keith Alexander, deliberately misled House intelligence committee member Rush Holt, D-N.J., on the eavesdropping program. On Dec. 6, Holt, a former State Department intelligence specialist, called on Alexander and NSA lawyers to discuss protecting Americans’ privacy. They all assured Holt that the agency singled out Americans for eavesdropping only after warrants had been obtained from the FISA court. Later that month, when disclosures in The New York Times made it clear that Alexander had lied to a member of his committee, Hoekstra merely suggested that Holt write a letter to Alexander to complain. The inescapable message to Alexander? Fear not: Hoekstra the fox is watching the hen house.

When the writers of the Constitution envisioned a separation of powers to ensure checks and balances in our government, they were relying on the leaders of those branches to fight to maintain their own power within the system. Fresh from the struggle against King George, they could not have predicted that some of our leaders would voluntarily sign away their own rights to another George who would be king.

Ray McGovern
May 16, 2006

Ray McGovern works with Tell the Word, the publishing arm of the Church of the Saviour in Washington, DC. He was a CIA analyst for 27 years and is now on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS).


Battlefield: U.S.

Pentagon Spies Are Treating The Homeland Like A War Zone.

TODAY, THE Senate Intelligence Committee will begin questioning Air Force Gen. Michael Hayden, nominated to be director of the Central Intelligence Agency, about the National Security Agency's collection of U.S. citizens' telephone records.

The scrutiny of the NSA is deserved, but the Senate and the American public may be missing a broader and more disturbing development. For the first time since the Civil War, the United States has been designated a military theater of operations. The Department of Defense — which includes the NSA — is focusing its vast resources on the homeland. And it is taking an unprecedented role in domestic spying.

It may be legal. But it circumvents three decades of efforts by Congress to restrict government surveillance of Americans under the guise of national security. And it represents a profound shift in the role of the military operating inside the United States. What's at stake here is the erosion of the principle, embedded in the 1878 Posse Comitatus Act, that the U.S. military not be used for domestic law enforcement.

When the administration declared the United States to be a theater of military operations in 2002, it created a U.S. Northern Command, which set up intelligence centers in Colorado and Texas to analyze the domestic threat. But these are not the military's only domestic intelligence efforts. According to the Congressional Research Service, the Pentagon controls "a substantial portion" of U.S. national intelligence assets, the traditional turf of the FBI and CIA.

In 2003, Congress created the job of undersecretary of Defense for intelligence to oversee the department's many intelligence bodies — including a new entity called Counterintelligence Field Activity, or CIFA.

CIFA was ordered to maintain a "domestic law-enforcement database" on "potential terrorist threats" to U.S. military installations, and it began collecting information on U.S. citizens.

In 2005, a presidential commission suggested that CIFA, set up as a clearinghouse for information, be empowered to conduct domestic investigations into crimes such as treason, espionage and terrorism. Astoundingly, the commission declared that such an expansion of military powers would not require congressional approval; a presidential order and Pentagon directive would suffice. One Defense Department program feeding information to CIFA is TALON (Threat and Local Observation Notice), which is supposed to obtain data from "concerned citizens and military members regarding suspicious incidents" that could herald terrorist attacks. But the military appears to have interpreted its mandate broadly. A TALON report was filed on a protest against "war profiteering" by Halliburton, Newsweek reported. The protesters alleged the defense contractor overcharged for food for U.S. troops in Iraq.

Counterintelligence reports were also filed on New York University's OUTlaw, a decades-old organization of openly gay law students. "The term 'outlaw' is a backhanded way of saying it's all right to commit possible violence," concluded one misguided military investigator in a document obtained last month under the Freedom of Information Act." NBC reported that about four dozen TALON database entries on "suspicious incidents" were not about terrorism but about opposition to the Iraq war and military recruiting.

These misguided military forays into domestic surveillance harken back to Vietnam War-era abuses. This time, they are the result of a much broader intelligence-gathering effort by the military on U.S. soil. President Bush said last week, "We're not mining or trolling through the personal lives of millions of innocent Americans." But a 2004 survey by the General Accounting Office found 199 data-mining operations that collect information ranging from credit-card statements to medical records. The Defense Department had five programs on intelligence and counterterrorism.

The Defense Intelligence Agency, created in 1961 to provide foreign military intelligence, now uses "Verity K2" software to scan U.S. intelligence files and the Internet "to identify foreign terrorists or Americans connected to foreign terrorism activity," and "Inxight Smart Discovery" software to help identify patterns in databases. CIFA has reportedly contracted with Computer Sciences Corp. to buy identity-masking software, which could allow it to create fake websites and monitor legitimate U.S. sites without leaving clues that it had been there. The National Geospatial-Intelligence Agency is collecting data from 133 U.S. cities; intelligence sources told the Los Angeles Times that, when collection is completed, the agency would be able to identify occupants in each house, their nationality and even their political affiliation.

In 2002, the Defense Department launched the granddaddy of all data-mining efforts, Total Information Awareness, to trawl through all government and commercial databases available worldwide. In 2003, concerned about privacy implications, Congress cut its funding. But many of the projects simply transferred to other Defense Department agencies. Two of the most important, the Information Awareness Prototype System and Genoa II, moved to NSA headquarters.

The Pentagon argues that its monitoring of U.S. citizens is legal. "Contrary to popular belief, there is no absolute ban on intelligence" agencies collecting information on Americans or disseminating it, says a memo by Robert Noonan, deputy chief of staff for intelligence. Military intelligence agents can receive any information "from anyone, any time," Noonan wrote.

Throughout U.S. history, we have struggled to balance security concerns with the protection of individual rights, and a thick body of law regulates domestic law enforcement agencies' behavior. Congress should think twice before it lets the behemoth Defense Department into domestic law enforcement.

LAURA K. DONOHUE is a fellow at Stanford University's Center for International Security and Cooperation. A longer article on this topic will appear next month in Northwestern School of Law's Journal of Criminal Law and Criminology.