March 6, 2006
January 31, 2006
Updated March 6, 2006
On December 16, 2005 in a now well-known article, NY Times
reporters James Risen and Eric Lichtblau exposed a three-year old
program authorized by George W. Bush, in which the National Security
Agency (NSA) eavesdropped on "hundreds, perhaps thousands, of people
inside the United States without warrants." "Nearly a dozen current and
former officials" were concerned enough about the program's legality
and lack of oversight to discuss it with the Times.
As reported by Newsweek's Jonathan Alter, Bush had "summoned Times
publisher Arthur Sulzberger and executive editor Bill Keller to the
Oval Office in a futile attempt to talk them out of running the story."
Bush's concern, Alter suggested, was not that public discussion of the
program "is helping the enemy," as he claimed. (Many American Muslims
suspected that the government might be monitoring their communications
long before the Times story was published.) Rather, Alter
wrote, Bush was "desperate to keep the Times from running this
important story ... because he knew that it would reveal him as a
law-breaker." (The Times acknowledged that it delayed
publication of the story for a year to "conduct additional reporting,"
and also omitted some "information that administration officials argued
could be useful to terrorists.")
The domestic eavesdropping, which the NSA calls a "special
collection program" began soon after the terrorist attacks on September
11, 2001, and expanded as the Central Intelligence Agency (CIA) began
to capture Qaeda operatives overseas. The NSA targeted phone numbers
and contact information from captured cell phones and computers, and
then expanded surveillance as monitored individuals contacted others.
Hundreds of monitored contacts were reportedly inside the United
After the program was underway, according to the Times,
congressional leaders from both parties were briefed in the Vice
President's office by Cheney, then NSA director Lt. Gen. Michael V.
Hayden, and CIA Director George Tenet. "It is not clear how much the
members of Congress were told about the presidential order and the
eavesdropping program," Risen wrote. Other members of Congress were
briefed over time as they assumed leadership positions. At least one
congressman, Senator Rockefeller of West Virginia, wrote Cheney to
express concern about the program.
Does He or Doesn't He?
Some of the officials who talked to the Times said "they
consider warrantless eavesdropping inside the United States to be
unlawful and possibly unconstitutional, amounting to an improper
search." Others suggested that the program was unnecessary given the
special courts established by the 1978 Foreign Intelligence
Surveillance Act specifically to grant expedited warrants for
surveillance cases with national intelligence implications. A FISA
warrant requires only that the government show probable cause that
someone may be "an agent of a foreign power," which includes
international terrorist groups.
The administration has objected that FISA procedures are inadequate
in cases when great urgency is needed, or when a large number of
contacts must be monitored at one time. Critics noted that FISA
procedures allow for surveillance to begin without a FISA warrant, if
the attorney general determines that FISA criteria are satisfied and
obtains a FISA warrant within 72 hours. This observation has led to
speculation that the NSA domestic program does not conform to FISA
Recent statements by Bush and Attorney General Gonzales that FISA
compliance is burdensome conflict with a statement made to the Senate
Intelligence Committee on July 31, 2002 by James A. Baker, the Justice
Department's top lawyer on intelligence policy. Baker was presenting
the administration position on an amendment to FISA law proposed by
Sen. Mike DeWine of Ohio that would have lowered the standard to obtain
a FISA warrant from "probable cause" to "reasonable suspicion." Baker
told the committee that because the "proposed change raises both
significant legal and practical issues, the administration at this time
is not prepared to support it." He also stated that "It may not be the
case that the probable cause standard has caused any difficulties in
our ability to seek the FISA warrants we require."
At its inception the NSA domestic spying program had "few controls
on it and little formal oversight." As the 2004 election approached,
however, some officials became concerned that "the program might come
under scrutiny by Congressional or criminal investigators," in a Kerry
administration, according to the Times.
Moreover, Judge Colleen Kollar-Kotelly, the federal judge who oversees
the FISA court, questioned whether the administration was using
evidence obtained through the NSA program to establish the basis for
FISA warrants -- a practice she would not permit. The program was
suspended for a time, apparently out of concern that the administration
would either have to disclose its existence or mislead a court about
the source of information.
The authority that Bush granted the NSA for domestic spying goes well
beyond the expanded powers to combat terrorism contained in the USA
Patriot Act. This is particularly ironic, given that the main
disagreement between Senate and House conferees -- who have been
struggling to develop compromise language before the act expires on
February 3 -- centers on "provisions that allow FBI agents to obtain
records on terrorism suspects, who have very limited options for
challenging such searches." (Major provisions of the act were
originally scheduled to expire on December 31, but Congress extended
them to February 3 to allow time for the House-Senate conference to
continue work on a compromise approach to renewing the law. Four
Republicans joined most Senate Democrats in opposing the version of the
bill that emerged from the conference in December. In late January
chief House negotiator, Judiciary Committee Chairman James
Sensenbrenner broke off talks.)
Bush has not asked Congress for additional provisions in the Patriot
Act, or other laws, to cover the NSA domestic spying, apparently
because the administration believes the action is legalized by the
president's constitutional powers as commander-in-chief, and the 2001
congressional resolution authorizing "all necessary force" (AUMF)
against the Taliban in Afghanistan following the 9/11 attacks. These
arguments were summarized in a December 22, 2005 letter
from Assistant Attorney General William Moschella to intelligence
committee chairs in the Senate and House. Moschella's letter also
argued that the limited briefings on the program to congressional
leaders constituted adequate notification to Congress.
The Times' sources suggested that the administration may
also have been reluctant to seek congressional approval "because the
proposal would be certain to face intense opposition on civil liberties
As reported recently by the Washington Post, legislation
"drafted by Justice Department lawyers in 2003 to strengthen the USA
Patriot Act would have provided legal backing for several aspects of
the administration's warrantless eavesdropping program." Critics have
suggested that the draft legislation is inconsistent with
administration claims that Bush had legal authority to order
warrantless domestic spying without obtaining Congressional approval.
Among other provisions, the law would have allowed the president to
order wiretaps without court supervision within 15 days of an AUMF.
Current provisions allow such action only following a declaration of
The draft would also have made it easier for the NSA to obtain lists
of calls made or received by US citizens, and would have created a
"statutory defense" for agents conducting surveillance at the direction
of the president or attorney general, effectively shielding them from
prosecution for violating federal law. When the legislation, titled the
Domestic Security Enhancement Act of 2003, was leaked to the media in
February 2003, the Justice Department dismissed it as an "early draft."
In Re. [deleted]
The Justice Department had provided a glimpse of its views on
warrantless surveillance in a supplemental brief to a 2002 appeal of a
Foreign Intelligence Surveillance Court (FISC) decision concerning the
coordination of law enforcement and counterterrorist operations:
In considering the constitutionality of the amended FISA,
it is important to understand that FISA is not required by the
Constitution. Rather, the Constitution vests in the President inherent
authority to conduct warrantless intelligence surveillance (electronic
or otherwise) of foreign powers or their agents, and Congress cannot by
statute extinguish that constitutional authority.
In its November 2002 appeal decision, the FIS review court sided with
the government in loosening strictures on the sharing of intelligence
between law enforcement and intelligence agencies. In the process, the
court affirmed the government's assertion that "the President did have
inherent authority to conduct warrantless searches to obtain foreign
intelligence information." It noted, however, "That is not to say that
we should be prepared to jettison Fourth Amendment requirements in the
interest of national security."
The nonpartisan Congressional Research Service (CRS) issued a
44-page report on January 6, 2006 rebutting the Moschella letter.
"Congress seems clearly to have contemplated that FISA would continue
to operate during war," the report noted, although amendments might be
necessary. The report rejected the administration's argument that
Congress has "accepted by acquiescence the NSA operations here at
issue." It acknowledged that the FIS review court's judgment
"provide[s] some support for the assertion that the President possesses
inherent authority" to conduct warrantless surveillance, but suggested
that this does not limit Congress's authority to regulate such
activity. In its concluding paragraph the report stated:
... [I]t appears unlikely that a court would hold that Congress
has expressly or impliedly authorized the NSA electronic surveillance operations here under
discussion, and it would likewise appear that, to the extent that those surveillances fall within
the definition of "electronic surveillance" within the meaning of FISA or any activity
regulated under Title III [law enforcement surveillance], Congress intended to cover the entire field with these statutes.
For the president to conduct warrantless searches, amounts to
"disabling Congress from acting upon the
subject," the report argued, suggesting that it is unconstitutional.
Citing the 1972 case United States v United States District Court, the
report concluded ".. [T]he Supreme Court has stated that Congress does
indeed have power to regulate domestic surveillance...."
On January 9, fourteen constitutional law scholars and former government officials published an open letter,
which declared that Moschella failed "to offer a plausible legal
defense" for the warrantless eavesdropping. The letter concurred with
the CRS report that Congress clearly contemplated that FISA would apply
during wartime, and that the 2001 AUMF did not undercut FISA. "If the
administration felt that FISA was insufficient," the letter stated,
"the proper course was to seek legislative amendment."
Former Nixon White House counsel John Dean wrote recently that the
administration claim that NSA domestic spying was authorized by the
2001 resolution "borders on the laughable...."
No sane member of Congress believes that the Authorization
of Military Force provided such an authorization. No first year law
student would mistakenly make such a claim. It is not merely a stretch;
it is ludicrous.
The formal legal opinions justifying the NSA domestic spying are
classified, but apparently were based on memoranda by John Yoo, a
former official in the Justice Department's Office of Legal Counsel
(OLC). As reported elsewhere in The Dubya Report
Yoo played an important role in drafting the legal opinions used to
justify coercive interrogation techniques in Guantanamo Bay,
Afghanistan, and Abu Ghraib prison in Iraq. Dean called Yoo "bright,
but inexperienced and highly partisan," and characterized his legal
thinking as "bordering on fantasy."
Yoo left the Department of Justice in 2003. A critique of his views can be found in in a November 2005 review of Yoo's The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11
by Georgetown Law professor David Cole, one of the signatories to the
January 9 letter. Yoo's opinions, wrote Cole, are "exactly the
arguments that the president would have wanted to hear ... that the
president has unilateral authority to initiate wars without
congressional approval, and to interpret, terminate, and violate
international treaties at will." Yoo believes, said Cole, that treaties
"cannot be enforced by courts unless Congress enacts additional
legislation to implement them.... Congress's foreign affairs authority
is largely limited to enacting domestic legislation and appropriating
money. In other words, when it comes to foreign affairs, the president
exercises unilateral authority largely unchecked by law—constitutional
While many conservatives favor a strong executive, Cole suggested,
Yoo's contribution is to reconcile "these modern-day conservative
preferences" with the "originalist" theory of constitutional
interpretation, which holds that the Constitution must be interpreted
within the understandings held by the framers, ratifiers and the public
at the time the document was drafted. A key problem with that exercise,
said Cole, is that "the framers ... were intensely wary of executive
power, and as leaders of a new and vulnerable nation, they were eager
to ensure that the mutual obligations they had negotiated with other
countries would be honored and enforced."
The Constitution grants Congress substantial war powers: to raise
and regulate the military, to declare war and lesser forms of conflict,
to define offenses against the law of nations, and to regulate
international commerce. The Senate is empowered to confirm
appointments, ambassadors, and treaties, while the president represents
the nation in foreign affairs. Cole noted the obvious -- that the
Constitution was drafted following a war of rebellion against a
prototypical "unaccountable executive." So great was the distrust of
executive power that the first attempt at a federal government, the
Continental Congress, depended on the states for "virtually all
significant functions, including imposing taxes, regulating citizens'
behavior, raising an army, and going to war." When that attempt proved
unsuccessful the drafters of the Constitution gave more power to
Congress and created an executive branch of government. Executive power
was strictly limited, however, and powers traditionally associated with
an executive, including power to declare war, were assigned to
At the Constitutional Convention, James Wilson gave voice to the
view of many members when he argued that giving Congress power to
declare war "will not hurry us into war; it is calculated to guard
against it. It will not be in the power of a single man, or a single
body of men, to involve us in such distress; for the important power of
declaring war is vested in the legislature at large."
Yoo's view, despite the evidence to the contrary, is that the
framers intended to "endow the president with power over foreign
affairs virtually identical to that of the king of England, including
the power to initiate wars without congressional authorization." Yoo
based his conclusion on citations from 18th century dictionaries, which
defined "declare" as "to pronounce" not "to commence." Cole countered
that "declare war" was a legal term of art, and suggested there is
evidence that it referred both to the commencement of hostilities and a
statement that war was underway.
Ironically, Cole noted, although Yoo's evidence doesn't effectively
challenge the notion that the framers vested in Congress the power to
take the nation to war, "[m]odern practice is closer to Yoo's view than
to the framers' vision." As the framers anticipated, presidents are
much more willing than Congress to involve the nation in war.
Presidents also tend to benefit from war more than members
of Congress, by increasing their short-term popularity, by acquiring
broader powers over both the civilian economy and the armed forces,
and, sometimes, by the historical recognition later accorded them.
Cole agreed with Yoo's observation that, since Harry Truman, presidents
have "resisted the view that they need congressional authorization to
commit forces to military conflict." After the terrorist attacks of
2001, Yoo wrote "it is all the more essential that the nation be able
to act swiftly and without hesitation, even preemptively, to protect
itself." Cole characterized Yoo's position as holding that the war on
terror does not permit democratic deliberation. These, however, are
recent developments. Presidents have generally sought congressional
authorization for military action, and, until the Korean War, either
acknowledged that such authorization was necessary or provided evidence
why a particular action might be an exception. "Thus," wrote Cole, "the
view that Yoo promotes as "original" has in fact been advanced only
during the last fifty years, and only by self-interested executives."
The two common features of Yoo's thinking, said Cole, are radical
departure from the text of the constitution, and eliminating legal
constraints on presidential power in foreign affairs. Yoo's
justification for the latter is that it preserves presidential
"flexibility" in foreign affairs. Yet, suggested Cole, that
"flexibility" seems to be "flexibility to involve the nation in war
without congressional approval, and to ignore and violate international
commitments with impunity." In the context of the "war on terror," the
flexibility that Yoo advocates has meant interpreting away any legal
limits, or rejecting them outright. Two weeks after the September 11,
2001 attacks, Yoo sent a memo to deputy White House counsel Tim
Flanigan, declaring that the president had unilateral authority to use
military force against terrorists anywhere in the world, with or
without congressional authorization. The government might use
... electronic surveillance techniques and equipment that
are more powerful and sophisticated than those available to law
enforcement agencies in order to intercept telephonic communications
and observe the movement of persons but without obtaining warrants for
such uses.... [T]he government may be justified in taking measures
which in less troubled conditions could be seen as infringements of
Yoo's legal opinions and the environment that fostered them led to
a significant conflict within the administration, as reporting in the
February 6 issue of Newsweek
revealed. One faction included Vice President Cheney and his counsel
(now chief of staff) David Addington; Yoo's controversial legal
opinions apparently originated with requests from this quarter, which
included Defense Secretary Rumsfeld, and perhaps CIA director Tenet. On
the other side were acting attorney general James Comey, and Jack
Goldsmith, a law professor who worked in the Pentagon general counsel's
Cheney and Addington believed that backlash from Vietnam and
Watergate had weakened the executive branch and created a "risk averse"
culture in the military and intelligence community. Following 9/11
Addington set about creating legal justification for the CIA in
particular to use harsher methods in dealing with terrorists captured
on the battlefield. Yoo became Addington's "go-to guy" in the OLC, and
readily supplied a series of opinions based on the principle that
presidential power in wartime is essentially unrestricted.
Yoo and Addington's most famous product -- at least until recently --
was the so-called "torture memo" of August 2002. The memo was released
under the signature of then head of OLC, Jay Bybee, but was drafted by
Yoo. The August memo and another drafted in March 2003 claimed legal
justification for the president to order severe mistreatment of
detainees during interrogation -- and on a large scale, i.e. not just
individual cases. At about the time the second memo was released, Bybee
left OLC for a federal judgeship. Addington and then-White House
Counsel Alberto Gonzales wanted Yoo to head OLC. Apparently piqued that
Yoo had provided Addington with an unofficial channel to OLC, Attorney
General Ashcroft wouldn't promote Yoo; Yoo subsequently left government
and returned to teaching law.
Pentagon counsel Goldsmith's combination of credentials and views
seemed to Ashcroft and Addington like a good choice to head OLC. Among
other factors, Goldsmith agreed with Yoo that international human
rights treaties were not binding on US courts. Apparently, though,
Goldsmith's views on executive power were somewhat different from
Yoo's, and in December 2003 Goldsmith issued an opinion that Yoo's
torture memo was "under review."
In an uncharacteristic gesture in the direction of checks and
balances, when it set up the NSA domestic spying program the Bush
administration had included a provision that it was to be re-authorized
by the Department of Justice every 45 days. The authorization was the
responsibility of the OLC, and in March 2004, while John Ashcroft was
in the hospital with pancreatitis, Goldsmith, Comey, and Comey's
national security aide Patrick Philbin announced that they would not
reauthorize the program. Gonzales and Addington visited Ashcroft in the
hospital to complain, but Ashcroft supported Comey.
Eventually a compromise was reached. The NSA program was not
required to use FISA procedures, but additional constraints were placed
on domestic eavesdropping.
In June 2004 Comey, Goldsmith, and Philbin were instrumental in the
Justice Department disavowal of the August 2002 torture memo, which
initiated what Newsweek
termed "fierce behind-the-scenes bureaucratic fight." In December 2004
OLC issued a new memo with a broader definition of torture and limits
on presidential authority to order it. By then Goldsmith had left
government for a teaching post at Harvard; Philbin was planning to
return to the private sector. Comey resigned in the summer of 2005.
Cheney spokesperson Lee Ann McBride told Newsweek, "The
proposition of internal division in our fight against terrorism isn't
based in fact. This administration is united in its commitment to
protect Americans, defeat terrorism and grow democracy."
'Activities Described By the President'
New York first-amendment lawyer Glenn Greenwald has noted that
administration officials have used a curious locution when providing
assurances that warrantless eavesdropping is limited to "members of Al
Qaeda and affiliated groups." The Department of Justice press release
concluded with the following statement: "Throughout this document, 'the
terrorist surveillance program' and 'the NSA program' refer to the NSA
activities described by the President."
In his appearance on CNN's "Larry King Live" Attorney General
Alberto Gonzales used a similar formulation. "... [A]s the president
indicated, and I'm only talking about what the president described to
the American people in his radio address, we're talking about
communication where one end of the communication is outside the United
States and where we have reason to believe that a party on that
communication is a member of al Qaeda or is a member of an affiliate
group with al Qaeda." Greenwald raises the obvious question as to
"whether there are warrantless eavesdropping programs aimed at
Americans other than the 'program described by the President'."
Jason Leopold, former Dow Jones Newswire Los Angeles Bureau Chief and now an investigative reporter for Truthout.org,
wrote in January that the NSA had monitored phone calls and emails of
US citizens prior to Bush's 2002 authorization, and before September
2001. According to Leopold, a transition document prepared for the
incoming Bush administration warned that international communications
of American citizens could be subject to surveillance while NSA
computers searched for keywords in an attempt to identify terrorists.
Protocol dictated, however, that once a party to a communication was
found to be a citizen, his or her identity was to be deleted from
surveillance records, or "minimized."
In the summer of 2001, after Vice President Cheney had visited the
NSA, the CIA and the Defense Intelligence agency, the NSA began
receiving administration requests to reveal the identities of
"minimized" individuals, Leopold reports. A former counterterrorism
official told Leopold, "What's really disturbing is that some of those
people the vice president was curious about were people who worked at
the White House or the State Department. There was a real feeling of
paranoia that permeated from the vice president's office and I don't
think it had anything to do with the threat of terrorism. I can't say
what was contained in those taps that piqued his interest. I just don't
"We weren't targeting specific people, which is what the President's
executive order does," a former NSA official told Leopold. "However, we
did keep tabs on some Americans we caught if there was an interest"
from members of the administration. "That's not legal. And I am very
upset that I played a part in it."
One person with "an interest" was apparently John Bolton, now US
ambassador to the UN. During his confirmation hearings Bolton told
members of the Senate that he had requested that names be identified in
NSA intercepts on a "handful" of occasions. In May 2005 Newsweek
reported that the State Department admitted Bolton had made 10 such
requests since 2001, and that the department as a whole had made 400
requests. According to Newsweek, however, the NSA may have been
disclosed as many as 10,000 names of US, British, Canadian and
Australian citizens to intelligence agencies, law-enforcement agencies,
and policymaking officials.
Bolton's chief of staff, Frederick Fleitz, a former CIA official,
testified during Bolton's confirmation hearings that, in one instance,
a "minimized" name that Bolton requested be identified turned out to be
another state department official. When the official's name was
revealed, Bolton congratulated him, which violated NSA regulations
prohibiting discussion of classified wiretap information. In a letter
to outgoing NSA director Hayden, Sen. Jay Rockefeller, vice chair of
the Senate intelligence committee wrote:
I have confirmed with the NSA that the phrase 'no further
action' includes sharing the requested identity of U.S. persons with
any individual not authorized by the NSA to receive the identity.
In addition to being troubled that Mr. Bolton may have
shared U.S. person identity information without required NSA approval,
I am concerned that the reason for sharing the information was not in
keeping with Mr. Bolton's requested justification for the identity in
the first place. The identity information was provided to Mr. Bolton
based on the stated reason that he needed to know the identity in order
to better under the foreign intelligence contained in the NSA report.
Responding to Bolton's cavalier use of supposedly classified NSA data, author Patrick Radden Keefe wrote in an August 2005 NY Times op-ed piece
The revelations amount to a reversal of what intelligence
officials have been claiming for 30 years. Heads of the NSA are famous
for saying very little about what the agency does, but the one thing
that its various directors, under both Republican and Democratic
administrations, have said repeatedly is that they do not eavesdrop on
We now know that this hasn't been the case - the agency
has been listening to Americans' phone calls, just not reporting any
names. And Bolton's experience makes clear that keeping those names
confidential was a formality that high-ranking officials could overcome
by picking up the phone.
The NSA also eavesdropped on home and office telephones and email of
UN delegations in early 2003, apparently as part of the effort to win
votes favoring the war in Iraq. While it is generally suspected that
the activities of UN delegates are monitored by US intelligence
agencies, a memo leaked to The Observer (UK) suggested that the
NSA was "mounting a surge" aimed at learning how Security Council
members would vote on a second Iraq resolution, but also "policies,"
"negotiating positions," "alliances" and "dependencies" - the "whole
gamut of information that could give US policymakers an edge in
obtaining results favorable to US goals or to head off surprises." The Observer noted:
While many diplomats at the UN assume they are being
bugged, the memo reveals for the first time the scope and scale of US
communications intercepts targeted against the New York-based missions.
The disclosure comes at a time when diplomats from the
countries have been complaining about the outright 'hostility' of US
tactics in recent days to persuade then to fall in line, including
threats to economic and aid packages.
Despite administration assurances that the NSA's warrantless domestic
spying is targeted only at international communications, and
individuals with suspected terrorist connections, officials conceded to
the NY Times
that purely domestic communications have been monitored, as well.
Telecommunications experts suggested that, for technical reasons, it
may not always be possible to determine whether a phone call is
domestic or international. While such calls are believed to represent a
small fraction of communications monitored under the domestic spying
program, their existence contradicts assurances from former NSA
director Hayden, and Attorney General Alberto R. Gonzales that the
program applied only to international communications.
As the January 9 open letter put it, "a US citizen living here who
received a phone call from another US citizen who attends a mosque that
the administration believes is 'supportive' of al-Qaeda could be
wiretapped without a warrant."
The NY Times exposé of the NSA program, and related
revelations, have raised concerns that federal agencies are targeting
groups and individuals who dissent from administration policies.
James Bovard noted recently in the LA Times that it took
very little for a Muslim or Arab immigrant to be considered a terrorist
in the round-up of 1,200 people shortly after 9/11. Arab students were
arrested for working in pizza parlors in violation of their student
visas. A Pakistani immigrant in Queens, NY was jailed because he dried
his laundry on the fence and his lawn needed mowing. Newsweek columnist Steven Brill reported that FBI agents were instructed to look through phone books for Arab-sounding names.
A May 2003 Department of Homeland Security (DHS) memo to 18,000 state
and local police departments, made public in 2004,
advised them to treat critics of the Iraq war as potential terrorists,
Bovard wrote. Since December 2005, Transportation Security
Administration (TSA) officials have been looking for potential
terrorists among airline passengers who exhibit "involuntary physical
and psychological reactions," such as being stressed or frightened.
In September 2005, Veterans Administration (VA) clinical nurse Laura Berg, wrote a letter to the Alibi,
an Albuquerque, in which she criticized the Bush administration's
handling of Hurricane Katrina relief efforts, and the Iraq war. Berg
urged citizens to to "act forcefully" to remove an administration
characterized by "vicious deceit."
Later that month, VA Information Security employees seized Berg’s
office computer, claiming that "government equipment was used
inappropriately…during government time for drafting an editorial
letter." Mel Hooker, Chief of Human Resource Management Service at the
VA, responded in a memo on November 9 to Berg's complaints about the
seizure. Hooker admitted that no evidence had been uncovered that Berg
used her office computer to write the letter in question, but justified
the VA investigation by asserting that "the Agency is bound by law to
investigate and pursue any act which potentially represents sedition." ACLU of New Mexico has demanded an explanation.
"The reference to 'sedition' is shocking,"ACLU of New Mexico Executive
Director Peter Simonson said in a January press release. "Even if Laura
had used the office computer it would change nothing. None of her
actions -- her criticism of the government, or her appeal for a change
in the heads of government -- approach an act of unlawful insurrection.
Is this government so jealous of its power, so fearful of dissent, that
it needs to threaten people who openly oppose its policies with charges
NBC news reported on December 14, 2005 that a Pentagon counterterrorism
database was found to contain "dozens of alerts on antiwar meetings and
peaceful protests," although analysts had determined that the events
did not constitute a security threat. Pentagon policy requires that
such information be deleted 90 days after such a determination is made.
The Threat and Local Observation Notice (TALON) program was created in
2003 to centralize information about threats to military bases and
personnel. Apparently responding to the NBC report, Undersecretary of
Defense for Intelligence Stephen A. Cambone ordered a review of the
program's data retention policies.
On December 20, the NY Times reported that documents released
in response to a Freedom of Information Act (FOIA) lawsuit by the
American Civil Liberties Union (ACLU) showed that the FBI had conducted
"numerous surveillance and intelligence-gathering operations that
involved, at least indirectly, groups active in causes as diverse as
the environment, animal cruelty and poverty relief...." One document
indicated that a "Vegan Community Project" in Indianapolis was under
surveillance. Another described the Catholic Worker movement's
"semi-communistic ideology" (The Catholic Worker
movement promotes social causes and works against poverty.) A third
document noted interest in a demonstration against the use of llama fur
by People for the Ethical Treatment of Animals (PETA).
The documents revealed that in the case of PETA, Greenpeace, and other
organizations, the FBI used "employees, interns, and other confidential
informants" to monitor the groups and develop leads on potential
criminal activity. The FBI also investigated financial ties between
Greenpeace and militant groups such as "the Earth Liberation Front
(ELF) and the Animal Liberation Front (ALF)." In previous Congressional
testimony the FBI described the latter two groups as "extremist special
interest groups." PETA and Greenpeace, however, questioned the
characterization of their activities as "terrorism," and the diversion
of counterterrorism resources from more serious investigations.
While ELF and ALF activities may be criminal, they are aimed at
property; one of the groups' strategies is to try to increase the cost
of doing business to the point that companies discontinue activities
that the groups oppose. The term "eco-terrorist," which is sometimes
applied to ELF and ALF, is promoted by industry-backed advocacy groups
such as the Center for the Defense of Free Enterprise and Center for
Consumer Freedom. The latter group, funded by restaurant, alcohol and
tobacco interests, has urged FBI investigation of ELF, ALF, and more
mainstream organizations such as the Humane Society and PETA. David
Martosko, research director of the Center for Consumer Freedom,
testified at a Senate hearing in 2005, "The threat from domestic
terrorism motivated by environmental and animal rights ideologies is
undocumented, unambiguous and growing." The group also lobbies against
healthy-eating and anti-smoking campaigns.
The American Legislative Exchange Council (ALEC), a conservative
lobbying group backed by more than 300 corporations, joined with the US
Sportsmen's Alliance (an advocacy group for hunters, fishers, and
trappers) in drafting the Animal and Ecological Terrorism Act. If
passed, the law would consider trespassing or destruction of property
domestic terrorism, if carried out by wildlife rights activists. In
2003 Representative Chris Chocola, Republican of Ohio, introduced the
introduced the Stop Terrorism of Property Act in Congress, but the bill
died in committee. Larry Frankel of the American Civil Liberties Union
has observed that the proposed statute criminalizes a particular
political view. For instance, people blockading a road to prevent
logging could be prosecuted as eco-terrorists, while someone who
trashed the offices of a law firm working on an injunction to prevent
logging could not.
"It's clear that this administration has engaged every possible
agency, from the Pentagon to NSA to the FBI, to engage in spying on
Americans," Ann Beeson, associate legal director for the ACLU, said.
"You look at these documents, and you think, wow, we have really
returned to the days of J. Edgar Hoover, when you see in FBI files that
they're talking about a group like the Catholic Workers league as
having a communist ideology."
On January 5 the Dow Jones News reported that the IRS had been
collecting taxpayers' political party affiliation in 20 states. Colleen
Kelly, president of the National Treasury Employees Union brought the
matter to the attention of Senator Patty Murray of Washington, the
senior Democrat on the Appropriations Committee, which oversees the
IRS. An IRS spokesman responding to Kelly's concerns in a December 21
letter said that the agency did not use the information. Not satisfied,
Murray wrote IRS Commissioner Mark Everson that "No employee or
contractors of the IRS should have access to this sensitive
information," and demanded that the practice be discontinued. Deputy
Commissioner John Dalrymple responded that the information was included
in a database that the IRS obtained from an outside contractor.
According to Dow Jones, the contractor was the Accurint public records
service, a LexisNexis product. Accurint had agreed to filter the party
affiliation data in the future, Everson said. It is unclear for how
long the IRS was obtaining party affiliation data.
The Austin-American Statesman reported on January 7 that
CNN was "'looking into' whether its chief international correspondent,
Christiane Amanpour, has been targeted by the Bush administration's
domestic spying program...." In an interview aired on January 3 on NBC
Nightly News, correspondent Andrea Mitchell asked NY Times's
James Risen if he had information suggesting that the NSA had spied on
Amanpour. Risen said that he had no such information. Inexplicably the
exchange was removed from the transcript
of the broadcast posted on the MSNBC web site. Amanpour's reports from
Iraq and elsewhere have from time to time revealed information that the
Bush administration has sought to downplay; she is also married to
James Rubin, who was served in the State Department during the Clinton
administration and was a member of the Kerry campaign foreign policy
Meanwhile, on January 24, the Denver Post reported that the NSA would be moving some operations to the Denver area. The Washington Post's
William Arkin noted that Denver suburb Aurora is already the home of
the Aerospace Data Facility at Buckley Airforce Base, a satellite
downlink and domestic warning facility. US Northern Command,
responsible for homeland air defense, is 70 miles away. The NSA move
follows a May 2005 announcement that the CIA's National Resources
Division would relocate domestic operations to Aurora. The main
function of the National Resources Division until now has been to
debrief ordinary citizens who travel overseas, and to recruit foreign
students and diplomats to become CIA "assets" when they return home.
The May announcement coincided with an agreement between the agency and
the FBI concerning coordination of operations and debriefings.
"Colorado is now the American epicenter for national domestic spying,"
In 2002 John Dean wrote an open letter to Karl Rove in which he
warned "the continuing insistence on secrecy by your White House is
startlingly Nixonian. I'm talking about everything from stiffing
Congressional requests from information and witnesses, to employing an
executive order to demolish the 1978 law providing public access to
presidential papers, to forcing the Government Accounting Office to go
to Court to obtain information about how the White House is spending
tax money when creating a pro-energy industry Vice Presidential task
force." Warrantless wiretapping, he added recently, continues the
"disturbing parallels." "There can be no serious question that
warrantless wiretapping, in violation of the law, is impeachable. After
all, Nixon was charged in Article II of his bill of impeachment with
illegal wiretapping for what he, too, claimed were national security
reasons." In fact, Bush may have outdone Nixon, Dean suggested:
"Nixon's illegal surveillance was limited; Bush's, it is developing,
may be extraordinarily broad in scope."
The darkest irony may be that, while the war in Iraq is creating
terrorists rather than combating terrorism, Bush's surveillance at home
is likely to be singularly ineffective in apprehending them. A
terrorist communicating using even a simple code that the NSA doesn't
recognize can avoid detection regardless of the computing power and
hardware directed at him.
Moreover, of the thousands of tips a month sent from the NSA to the FBI
in the search for terrorists, "virtually all of them ... led to dead
ends or innocent Americans," according to "[m]ore than a dozen current
and former law enforcement and counterterrorism officials, including
some in the small circle who knew of the secret eavesdropping program
and how it played out at the FBI." The "program was viewed with
skepticism by key figures at the Federal Bureau of Investigation," the
agency that would be responsible for domestic terrorism investigations.
Officials acknowledged that NSA tips may have played a role in the
arrest of individuals in Portland and Minneapolis charged with
supporting terrorism, money laundering, and conspiracy. The persons in
question may have been involved in recruiting or training operations.
NSA information also helped a counterterrorism sting operation that
resulted in the arrest in Albany, NY of Yassin Aref and Mohammed
Hossain for attempting to sell a missile launcher to an undercover
informant. Other officials take issue, however, with administration
claims that domestic spying helped apprehend Iyman Faris, an Ohio truck
driver who had discussed trying to destroy the Brooklyn Bridge with a
blowtorch. Officials also dispute administration assertions that the
NSA program contributed to the foiling of a plot to detonate fertilizer
bombs in London in 2004.
Homeland Security Secretary Michael Chertoff, has admitted that he
cannot be sure that the NSA program is a deterrent to terrorism. "I
don't know that it's ever possible to attribute one strand of
intelligence from a particular program."
With a Republican controlled Congress and polls showing a majority of
American's would give up some civil liberties to prevent a terrorist
attack, John Dean asked, why wouldn't Bush simply ask Congress for the
authority he thought he needed? Dean's answer was that Dick Cheney
never recovered from his stint as Gerald Ford's chief of staff when
Congress put limits on presidential authority. Cheney wanted to make
the point, Dean suggested, that the president could ignore Congress,
and Bush, as with all of Cheney's quests, went along.
There may, however, be another reason, at once simpler and more
sinister. George Lakoff in his writings about the worldviews of
liberals and conservatives has suggested that in the conservative moral
system, the system itself is right and good. "Opponents of the moral
system itself are therefore wrong; and if they try to overthrow the
moral system, they will be engaging in a moral act. The moral system
itself must be defended above all." "You're either with us or against
us in the fight against terror," Bush famously declared at his November
6, 2001 news conference with Jacques Chirac. It is not inconceivable
that in the minds of George W. Bush and Dick Cheney, as perhaps in the
mind of Richard Nixon, political opponents are not easily distinguished
from threats to the nation.
In 1974 when the Nixon impeachment hearings
took place, Arlen Specter was Philadelphia District Attorney. Nixon had
at one time considered appointing him to the Supreme Court. When the
Senate Judiciary Committee hearings on the NSA's surveillance commenced on February 6 it was Specter who presided.
Risen, James and Eric Lichtblau"Bush Lets U.S. Spy on Callers Without Courts" NY Times 16 Dec. 2005
Alter, Jonathan "Bush’s Snoopgate" Newsweek 19 Dec. 2005
Babington, Charles "Patriot Act Talks Hit Roadblock On Privacy Issue" Washington Post 25 Jan. 2006
Dean, John W. "George W. Bush as the New Richard M. Nixon" Find Law's Writ. 30 Dec. 2005
Cole, David. "What Bush Wants to Hear" Rev. of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo. New York Review of Books 17 Nov. 2005
Klaidman, Daniel et al "Palace Revolt" Newsweek 6 Feb. 2006
In Re. [deleted]. Supplemental Brief for the United States. Foreign Intelligence Surveillance Court. Case No. 02-001. 25 Sep. 2002
In Re: Sealed Case No. 02-001. On Motions for Review of Orders of the United States Foreign Intelligence Surveillance Court. 18 Nov. 2002.
Greenwald, Glenn "Some items of interest" Crooks and Liars 28 Jan. 2006
Leopold, Jason "NSA Spying Evolved Pre-9/11" truthout.org. 17 Jan 2006
Hosenball, Mark "Spying: Giving Out U.S. Names" Newsweek 2 May 2005
Leopold, Jason "Bolton Testimony Revealed Domestic Spying" truthout.org. 2 Jan. 2006
Keefe, Patrick Radden "Big brother and the bureaucrats" NY Times 11 Aug. 2005
Landay, Jonathan S. "In 2002, Justice Department said eavesdropping law working well" Knight Ridder Newspapers. 25 Jan. 2006
Keefe, Patrick Radden "Listening In and Naming Names" Slate. 20 Dec. 2005
Bright, Martin, et al. "Revealed: US dirty tricks to win vote on Iraq war" The Observer 2 Mar. 2003
Congresional Research Service. Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information By Elizabeth B. Bazan, et al. 5 Jan. 2006.
Eggen, Dan "2003 Draft Legislation Covered Eavesdropping" Washington Post 28 Jan 2006
Risen, James and Eric Lichtblau "Spying Program Snared U.S. Calls" NY Times 21 Dec. 2005
Wells, Rob "IRS To Restrict Collectors' Access To Political Data" Dow Jones Newswires. 5 Jan 2006
Blumenthal, Les "IRS collects political links of taxpayers" McClatchy News Service. 6 Jan. 2006
Deans, Bob "Reporter asks whether NSA spied on CNN correspondent" Austin American-Statesman. 7 Jan. 2006.
Cloud, David S. "Pentagon Is Said to Mishandle A Counterterrorism Database" NY Times 16 Dec. 2005
Lichtblau, Eric "FBI Watched Activist Groups, New Files Show" NY Times 20 Dec. 2005
Dean, John "Ignore Nixon at Your Peril" Find Law's Writ. 10 May 2002
Bergman, Lowell et al. "Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends" NY Times 17 Jan. 2006
Lakoff, George Moral Politics Chicago: University of Chicago Press, 1996.
"'You are either with us or against us'" CNN. 6 Nov. 2001
Dean, John W. "Judiciary Committee Chairman Arlen Specter Presses Judge John Roberts on His Commerce Clause Views" Find Law's Writ. 12 Aug. 2005
Priest, Dana "CIA Plans to Shift Work to Denver" Washington Post 6 May 2005
Bovard, James A terrorist on every corner? LA Times 8 Feb. 2006
Komp, Catherine "Vilified as 'Terrorists,' Eco-activists Face New Offensive by Business" The New Standard 7 Feb. 2006
"New Mexico ACLU wants apology to employee investigated on 'sedition'" Associated Press. 1 Feb. 2006
"ACLU of New Mexico Defends VA Employee Accused of 'Sedition' Over Criticism of Bush Administration" Press Release. ACLU. 31 Jan. 2006
Myers, Lisa et al. "Is the Pentagon spying on Americans?"
NBC News. 14 Dec. 2005