Veterans for Common Sense

The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.

The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency’s legal authority to expand its domestic operations, the documents showed.

Ms. Pelosi’s letter, which was declassified at her request, showed much earlier concerns among lawmakers about the agency’s domestic surveillance operations than had been previously known. Similar objections were expressed by Senator John D. Rockefeller IV, Democrat of West Virginia, in a secret letter to Vice President Dick Cheney nearly two years later.

The letter from Ms. Pelosi, the House minority leader, also suggested that the security agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping.

The congresswoman wrote to Lt. Gen. Michael V. Hayden, then head of the N.S.A., to express her concerns after she and other members of the House and Senate Intelligence Committees received a classified briefing from General Hayden on Oct. 1, 2001, about the agency’s operations.

Ms. Pelosi, then the ranking Democrat on the House Intelligence Committee, said, “I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting.”

The answer, General Hayden suggested in his response to Ms. Pelosi a week later, was that it had not. “In my briefing,” he wrote, “I was attempting to emphasize that I used my authorities to adjust N.S.A.’s collection and reporting.”

It is not clear whether General Hayden referred at the briefing to the idea of warrantless eavesdropping. Parts of the letters from Ms. Pelosi and General Hayden concerning other specific aspects of the spy agency’s domestic operation were blacked out because they remain classified. But officials familiar with the uncensored letters said they referred to other aspects of the domestic eavesdropping program.

Bush administration officials said on Tuesday that General Hayden, now the country’s No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.

“He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities,” said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. “Beyond that, we can’t get into details of what was done.”

In 2002, President Bush signed an executive order specifically authorizing the security agency to eavesdrop without warrants on the international communications of Americans inside the United States who the agency believed were connected to Al Qaeda. The disclosure of the domestic spying program last month provoked an outcry in Washington, where Congressional hearings are planned.

General Hayden’s October 2001 briefing was one of the first glimpses into the expanded but largely hidden role that the N.S.A. would assume in combating terrorism over the last four years.

In the briefing, Ms. Pelosi wrote to General Hayden, “you indicated that you had been operating since the Sept. 11 attacks with an expansive view of your authorities” with respect to electronic surveillance and intelligence-gathering operations.

“You seemed to be inviting expressions of concern from us, if there were any,” Ms. Pelosi wrote, but she said that the lack of specific information about the agency’s operations made her concerned about the legal rationale used to justify it.

One step that the agency took immediately after the Sept. 11 attacks, Ms. Pelosi wrote in her letter, was to begin forwarding information from foreign intelligence intercepts to the F.B.I. for investigation without first receiving a specific request from the bureau for “identifying information.”

In the past, under so-called minimization procedures intended to guard Americans’ privacy, the agency’s standard practice had been to require a written request from a government official who wanted to know the name of an American citizen or a person in the United States who was mentioned or overheard in a wiretap.

In the weeks after the Sept. 11 attacks, the agency began monitoring telephone calls and e-mail messages between the United States and Afghanistan to track possible terror suspects. That program led to the broader eavesdropping operation on other international communications, officials have said.

The agency has also tapped into some of the nation’s main telecommunications arteries to trace and analyze large volumes of phone and e-mail traffic to look for patterns of possible terrorist activity.

Marc Rotenberg, director of the Electronic Privacy Information Center, said the new documents, along with previous reports of objections to the program from Senator Rockefeller and James B. Comey, the former deputy attorney general, underscored the need for a comprehensive investigation.

“There’s an increasing picture of concern, if not outright opposition, within the government,” Mr. Rotenberg said. “But we can’t second-guess anyone’s actions on a document-by-document basis,” particularly if the documents are released only in part, he added.

The way the N.S.A.’s role has expanded has prompted concern even from some of its former leaders, like Bobby R. Inman, a retired admiral who was N.S.A. director from 1977 to 1981. Admiral Inman said that while he supported the decision to step up eavesdropping against potential terrorists immediately after the 2001 attacks, the Bush administration should have tried to change the Foreign Intelligence Surveillance Act to provide explicit legal authorization for what N.S.A. was doing.

“What I don’t understand is why when you’re proposing the Patriot Act, you don’t set up an oversight mechanism for this?” Admiral Inman said in an interview. “I would have preferred an approach to try to gain legislation to try to operate with new technology and with an audit of how this technology was used.”

As the joyous display of purple fingers in Iraq again attests, the national struggle for democracy is a moral good and, if it succeeds, a human triumph. But it is not by itself a victory for American national security. We need a policy based on the recognition that democracy in the Middle East and beyond is definitely desirable, maybe necessary but hardly sufficient to secure our future.

In an article on this page Dec. 11 [“The Promise of Democratic Peace”], Secretary of State Condoleezza Rice argued that the “goal of our statecraft is to help create a world of democratic, well-governed states that can meet the needs of their citizens and conduct themselves responsibly in the international system.”

She explains that transnational threats—terrorism, weapons proliferation, crime and disease—cross borders quickly and can inflict great harm on the United States. “Weak and failing states serve as global pathways that facilitate the spread” of these threats, she wrote.

Rice is dead right on all counts. Unfortunately, her solution to the challenge of weak states and transnational threats is at best inadequate.

Promoting freedom has become the cornerstone of the Bush administration’s national security policy. Democracy and freedom are universal human aspirations as well as wise policy objectives that we should actively pursue. Democratic states are less likely to go to war with one another and more likely to govern responsibly.

Yet, the American people would be ill-advised to accept as axiomatic the premise that democracy alone will secure our future or eliminate terrorism.

The jury remains out over whether democracy in the Arab world would yield governments more supportive of U.S. interests, produce populaces less sympathetic to jihadists or prevent al Qaeda from pursuing its goals through terrorism. At stake is more than presidential rhetoric. Democracy promotion has become the sole and defining element of President Bush’s long-term counterterrorism approach. That is why the administration has an obligation to go beyond assertion and demonstrate convincingly that its one-dimensional strategy will yield the desired result. If it cannot, the administration risks putting all of our security eggs in the wrong basket.

The Bush formula is flawed on another score: As Rice outlined it, its premise is that democracy will enable weak states to become capable of providing for their citizens, controlling their territory and effectively combating transnational threats. But fragile democracies that are impoverished remain prone to coups and civil conflict. They also lack resources and institutional capacity to act as responsible states.

From Mali to Tanzania, from Bangladesh to Indonesia, poverty hobbles many nascent democracies, which cannot prevent terrorists from operating on their territory or contain outbreaks of disease. To strengthen weak states, we must do more than promote democracy. We must join with others to build state capacity, in substantial part by helping to alleviate poverty.

The administration’s focus is also too limited geographically. The secretary said, referring to the Middle East: “In one region of the world . . . the problems emerging from the character of regimes are more urgent than in any other.”

Perhaps, but unless we focus on building state capacity in other regions, we will fall far short in thwarting transnational threats, which can emanate from anywhere.

Finally, if freedom is key to our national security, why is the administration ambivalent about implementing this policy outside Iraq? The president’s fiscal 2006 budget requested $30 million less for his Middle East Partnership Initiative than did the previous year’s. That same budget also reduced democracy funds for the former Soviet Union.

When Rice visited Cairo this summer, she laid out tough benchmarks against which we would measure Egypt’s electoral process. But last week, after Egypt’s violent electoral sham, a State Department spokesman termed the overall process “positive” before expressing mild concern about its flaws.

These mixed signals must puzzle, if not deflate, democracy activists across the world.

View the transcript of an interview and discussion with Susan Rice on washingtonpost.com.

© Copyright 2005 The Washington Post Company

As the joyous display of purple fingers in Iraq again attests, the national struggle for democracy is a moral good and, if it succeeds, a human triumph. But it is not by itself a victory for American national security. We need a policy based on the recognition that democracy in the Middle East and beyond is definitely desirable, maybe necessary but hardly sufficient to secure our future.
In an article on this page Dec. 11 [“The Promise of Democratic Peace”], Secretary of State Condoleezza Rice argued that the “goal of our statecraft is to help create a world of democratic, well-governed states that can meet the needs of their citizens and conduct themselves responsibly in the international system.”

She explains that transnational threats—terrorism, weapons proliferation, crime and disease—cross borders quickly and can inflict great harm on the United States. “Weak and failing states serve as global pathways that facilitate the spread” of these threats, she wrote.

Rice is dead right on all counts. Unfortunately, her solution to the challenge of weak states and transnational threats is at best inadequate.

Promoting freedom has become the cornerstone of the Bush administration’s national security policy. Democracy and freedom are universal human aspirations as well as wise policy objectives that we should actively pursue. Democratic states are less likely to go to war with one another and more likely to govern responsibly.

Yet, the American people would be ill-advised to accept as axiomatic the premise that democracy alone will secure our future or eliminate terrorism.

The jury remains out over whether democracy in the Arab world would yield governments more supportive of U.S. interests, produce populaces less sympathetic to jihadists or prevent al Qaeda from pursuing its goals through terrorism. At stake is more than presidential rhetoric. Democracy promotion has become the sole and defining element of President Bush’s long-term counterterrorism approach. That is why the administration has an obligation to go beyond assertion and demonstrate convincingly that its one-dimensional strategy will yield the desired result. If it cannot, the administration risks putting all of our security eggs in the wrong basket.

The Bush formula is flawed on another score: As Rice outlined it, its premise is that democracy will enable weak states to become capable of providing for their citizens, controlling their territory and effectively combating transnational threats. But fragile democracies that are impoverished remain prone to coups and civil conflict. They also lack resources and institutional capacity to act as responsible states.

From Mali to Tanzania, from Bangladesh to Indonesia, poverty hobbles many nascent democracies, which cannot prevent terrorists from operating on their territory or contain outbreaks of disease. To strengthen weak states, we must do more than promote democracy. We must join with others to build state capacity, in substantial part by helping to alleviate poverty.

The administration’s focus is also too limited geographically. The secretary said, referring to the Middle East: “In one region of the world . . . the problems emerging from the character of regimes are more urgent than in any other.”

Perhaps, but unless we focus on building state capacity in other regions, we will fall far short in thwarting transnational threats, which can emanate from anywhere.

Finally, if freedom is key to our national security, why is the administration ambivalent about implementing this policy outside Iraq? The president’s fiscal 2006 budget requested $30 million less for his Middle East Partnership Initiative than did the previous year’s. That same budget also reduced democracy funds for the former Soviet Union.

When Rice visited Cairo this summer, she laid out tough benchmarks against which we would measure Egypt’s electoral process. But last week, after Egypt’s violent electoral sham, a State Department spokesman termed the overall process “positive” before expressing mild concern about its flaws.

These mixed signals must puzzle, if not deflate, democracy activists across the world.

View the transcript of an interview and discussion with Susan Rice on washingtonpost.com.

© Copyright 2005 The Washington Post Company

The effort President Bush authorized shortly after Sept. 11, 2001, to fight al Qaeda has grown into the largest CIA covert action program since the height of the Cold War, expanding in size and ambition despite a growing outcry at home and abroad over its clandestine tactics, according to former and current intelligence officials and congressional and administration sources.

    The broad-based effort, known within the agency by the initials GST, is compartmentalized into dozens of highly classified individual programs, details of which are known mainly to those directly involved.

    GST includes programs allowing the CIA to capture al Qaeda suspects with help from foreign intelligence services, to maintain secret prisons abroad, to use interrogation techniques that some lawyers say violate international treaties, and to maintain a fleet of aircraft to move detainees around the globe. Other compartments within GST give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world.

    Over the past two years, as aspects of this umbrella effort have burst into public view, the revelations have prompted protests and official investigations in countries that work with the United States, as well as condemnation by international human rights activists and criticism by members of Congress.

    Still, virtually all the programs continue to operate largely as they were set up, according to current and former officials. These sources say Bush’s personal commitment to maintaining the GST program and his belief in its legality have been key to resisting any pressure to change course.

    “In the past, presidents set up buffers to distance themselves from covert action,” said A. John Radsan, assistant general counsel at the CIA from 2002 to 2004. “But this president, who is breaking down the boundaries between covert action and conventional war, seems to relish the secret findings and the dirty details of operations.”

    The administration’s decisions to rely on a small circle of lawyers for legal interpretations that justify the CIA’s covert programs and not to consult widely with Congress on them have also helped insulate the efforts from the growing furor, said several sources who have been involved.

    Bush has never publicly confirmed the existence of a covert program, but he was recently forced to defend the approach in general terms, citing his wartime responsibilities to protect the nation. In November, responding to questions about the CIA’s clandestine prisons, he said the nation must defend against an enemy that “lurks and plots and plans and wants to hurt America again.”

    This month he went into more detail, defending the National Security Agency’s warrantless eavesdropping within the United States. That program is separate from the GST program, but three lawyers involved said the legal rationale for the NSA program is essentially the same one used to support GST, which is an abbreviation of a classified code name for the umbrella covert action program.

    The administration contends it is still acting in self-defense after the Sept. 11 attacks, that the battlefield is worldwide, and that everything it has approved is consistent with the demands made by Congress on Sept. 14, 2001, when it passed a resolution authorizing “all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks.”

    “Everything is done in the name of self-defense, so they can do anything because nothing is forbidden in the war powers act,” said one official who was briefed on the CIA’s original cover program and who is skeptical of its legal underpinnings. “It’s an amazing legal justification that allows them to do anything,” said the official, who like others spoke on the condition of anonymity because of the sensitivity of the issues.

    The interpretation undergirds the administration’s determination not to waver under public protests or the threat of legislative action. For example, after The Washington Post disclosed the existence of secret prisons in several Eastern European democracies, the CIA closed them down because of an uproar in Europe. But the detainees were moved elsewhere to similar CIA prisons, referred to as “black sites” in classified documents.

    The CIA has stuck with its overall approaches, defending and in some cases refining them. The agency is working to establish procedures in the event a prisoner dies in custody. One proposal circulating among mid-level officers calls for rushing in a CIA pathologist to perform an autopsy and then quickly burning the body, according to two sources.

    In June, the CIA temporarily suspended its interrogation program after a controversy over the disclosure of an Aug. 1, 2002, memorandum from the Justice Department’s Office of Legal Counsel that defined torture in an unconventional way. The White House withdrew and replaced the memo. But the hold on the CIA’s interrogation activities was eventually removed, several intelligence officials said.

    The authorized techniques include “waterboarding” and “water dousing,” both meant to make prisoners think they are drowning; hard slapping; isolation; sleep deprivation; liquid diets; and stress positions – often used, intelligence officials say, in combination to enhance the effect.

    Behind the scenes, CIA Director Porter J. Goss – until last year the Republican chairman of the House intelligence committee – has gathered ammunition to defend the program.

    After a CIA inspector general’s report in the spring of 2004 stated that some authorized interrogation techniques violated international law, Goss asked two national security experts to study the program’s effectiveness.

    Gardner Peckham, an adviser to then-House Speaker Newt Gingrich (R-Ga.), concluded that the interrogation techniques had been effective, said an intelligence official familiar with the result. John J. Hamre, deputy defense secretary under President Bill Clinton, offered a more ambiguous conclusion. Both declined to comment.

    The only apparent roadblock that could yet prompt significant change in the CIA’s approach is a law passed this month prohibiting torture and cruel and inhumane treatment of prisoners in U.S. custody, including in CIA hands.

    It is still unclear how the law, sponsored by Sen. John McCain (R-Ariz.), will be implemented. But two intelligence experts said the CIA will be required to draw up clear guidelines and to get all special interrogation techniques approved by a wider range of government lawyers who hold a more conventional interpretation of international treaty obligations.

    “The executive branch will not pull back unless it has to,” said a former Justice Department lawyer involved in the initial discussions on executive power. “Because if it pulls back unilaterally and another attack occurs, it will get blamed.”

    The Origins

    The top-secret presidential finding Bush signed six days after the Sept. 11 attacks empowered the intelligence agencies in a way not seen since World War II, and it ordered them to create what would become the GST program.

    Written findings are required by the National Security Act of 1947 before the CIA can undertake a covert action. A covert action may not violate the Constitution or any U.S. law. But such actions can, and often do, violate laws of the foreign countries in which they take place, said intelligence experts.

    The CIA faced the day after the 2001 attacks with few al Qaeda informants, a tiny paramilitary division and no interrogators, much less a system for transporting terrorism suspects and keeping them hidden for interrogation.

    Besides fighting the war in Afghanistan, the agency set about to put in place an intelligence-gathering network that relies heavily on foreign security services and their deeper knowledge of local terrorist groups. With billions of dollars appropriated each year by Congress, the CIA has established joint counterterrorism intelligence centers in more than two dozen countries, and it has enlisted at least eight countries, including several in Eastern Europe, to allow secret prisons on their soil.

    Working behind the scenes, the CIA has gained approval from foreign governments to whisk terrorism suspects off the streets or out of police custody into a clandestine prison system that includes the CIA’s black sites and facilities run by intelligence agencies in other countries.

    The presidential finding also permitted the CIA to create paramilitary teams to hunt and kill designated individuals anywhere in the world, according to a dozen current and former intelligence officials and congressional and executive branch sources.

    In four years, the GST has become larger than the CIA’s covert action programs in Afghanistan and Central America in the 1980s, according to current and former intelligence officials. Indeed, the CIA, working with foreign counterparts, has been responsible for virtually all of the success the United States has had in capturing or killing al Qaeda leaders since Sept. 11, 2001.

    Bush delegated much of the day-to-day decision-making and the creation of individual components to then-CIA Director George J. Tenet, according to congressional and intelligence officials who were briefed on the finding at the time.

    “George could decide, even on killings,” one of these officials said, referring to Tenet. “That was pushed down to him. George had the authority on who was going to get it.”

    The Lawyers

    Tenet, according to half a dozen former intelligence officials, delegated most of the decision making on lethal action to the CIA’s Counterterrorist Center. Killing an al Qaeda leader with a Hellfire missile fired from a remote-controlled drone might have been considered assassination in a prior era and therefore banned by law.

    But after Sept. 11, four former government lawyers said, it was classified as an act of self-defense and therefore was not an assassination. “If it was an al Qaeda person, it wouldn’t be an assassination,” said one lawyer involved.

    This month, Pakistani intelligence sources said, Hamza Rabia, a top operational planner for al Qaeda, was killed along with four others by a missile fired by U.S. operatives using an unmanned Predator drone, although there were conflicting reports on whether a missile was used. In May, another al Qaeda member, Haitham Yemeni, was reported killed by a Predator drone missile in northwest Pakistan.

    Refining what constitutes an assassination was just one of many legal interpretations made by Bush administration lawyers. Time and again, the administration asked government lawyers to draw up new rules and reinterpret old ones to approve activities once banned or discouraged under the congressional reforms beginning in the 1970s, according to these officials and seven lawyers who once worked on these matters.

    Gen. Michael V. Hayden, deputy director of national intelligence, has described the administration’s philosophy in public and private meetings, including a session with human rights groups.

    “We’re going to live on the edge,” Hayden told the groups, according to notes taken by Human Rights Watch and confirmed by Hayden’s office. “My spikes will have chalk on them. . . . We’re pretty aggressive within the law. As a professional, I’m troubled if I’m not using the full authority allowed by law.”

    Not stopping another attack not only will be a professional failure, he argued, but also “will move the line” again on acceptable legal limits to counterterrorism.

    When the CIA wanted new rules for interrogating important terrorism suspects the White House gave the task to a small group of lawyers within the Justice Department’s Office of Legal Counsel who believed in an aggressive interpretation of presidential power.

    The White House tightened the circle of participants involved in these most sensitive new areas. It initially cut out the State Department’s general counsel, most of the judge advocates general of the military services and the Justice Department’s criminal division, which traditionally dealt with international terrorism.

    “The Bush administration did not seek a broad debate on whether commander-in-chief powers can trump international conventions and domestic statutes in our struggle against terrorism,” said Radsan, the former CIA lawyer, who is a professor at William Mitchell College of Law in St. Paul, Minn. “They could have separated the big question from classified details to operations and had an open debate. Instead, an inner circle of lawyers and advisers worked around the dissenters in the administration and one-upped each other with extreme arguments.”

    At the CIA, the White House allowed the general counsel’s job, traditionally filled from outside the CIA by someone who functioned in a sort of oversight role, to be held by John Rizzo, a career CIA lawyer with a fondness for flashy suits and ties who worked for years in the Directorate of Operations, or D.O.

    “John Rizzo is a classic D.O. lawyer. He understands the culture, the intelligence business,” Radsan said. “He admires the case officers. And they trust him to work out tough issues in the gray with them. He is like a corporate lawyer who knows how to make the deal happen.”

    These lawyers have written legal justifications for holding suspects picked up outside Afghanistan without a court order, without granting traditional legal rights and without giving them access to the International Committee of the Red Cross.

    CIA and Office of Legal Counsel lawyers also determined that it was legal for suspects to be secretly detained in one country and transferred to another for the purposes of interrogation and detention – a process known as “rendition.”

    Lawyers involved in the decision making acknowledge the uncharted nature of their work. “I did what I thought the best reading of the law was,” one lawyer said. “These lines are not obvious. It was a judgment.”
Credit and Blame

    One way the White House limited debate over its program was to virtually shut out Congress during the early years. Congress, for its part, raised only weak and sporadic protests. The administration sometimes refused to give the committees charged with overseeing intelligence agencies the details they requested. It also cut the number of members of Congress routinely briefed on these matters, usually to four members – the chairmen and ranking Democratic members of the House and Senate intelligence panels.

    John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate Select Committee on Intelligence, complained in a 2003 letter to Vice President Cheney that his briefing on the NSA eavesdropping was unsatisfactory. “Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities,” he wrote.

    Rockefeller made similar complaints about the CIA’s refusal to allow the full committee to see the backup material supporting a skeptical report by the CIA inspector general in 2004 on detentions and interrogations that questioned the legal basis for renditions.

    Some former CIA officers now worry that the agency alone will be held responsible for actions authorized by Bush and approved by the White House’s lawyers.

    Attacking the CIA is common when covert programs are exposed and controversial, said Gerald Haines, a former CIA historian who is a scholar in residence at the University of Virginia. “It seems to me the agency is taking the brunt of all the recent criticism.”

    Duane R. “Dewey” Clarridge, who directed the CIA’s covert efforts to support the Nicaraguan contras in the 1980s, said the nature of CIA work overseas is, and should be, risky and sometimes ugly. “You have a spy agency because the spy agency is going to break laws overseas. If you don’t want it to do those dastardly things, don’t have it. You can have the State Department.”

    But a former CIA officer said the agency “lost its way” after Sept. 11, rarely refusing or questioning an administration request. The unorthodox measures “have got to be flushed out of the system,” the former officer said. “That’s how it works in this country.”

    ——–

    Researcher Julie Tate contributed to this report.

John Yoo knows the epithets of the libertarians, the liberals and the lefties. Widely considered the intellectual architect of the most dramatic assertion of White House power since the Nixon era, he has seen constitutional scholars skewer his reasoning and students call for his ouster from the University of California at Berkeley.

Civil liberties advocates were appalled by a memo he helped draft on torture. The State Department’s chief legal adviser at the time called his analysis of the Geneva Conventions “seriously flawed.” Supreme Court Justice Sandra Day O’Connor wrote, in a critique of administration views espoused by Yoo, “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Yoo has alienated so many influential opponents that he is considered unconfirmable for a judgeship or high office, not unlike a certain conservative jurist rejected by the Senate for the Supreme Court.

“Someone said to me that I was the Robert Bork of my generation,” he reported the other day.

Yet Yoo, 38, an engaging and outspoken lifelong conservative who clerked for Supreme Court Justice Clarence Thomas, can be found at seminars and radio microphones, standing up for Bush administration legal arguments that will be studied for decades.

“The worst thing you could do, now that people are critical of your views, is to run and hide. I agree with the work I did. I have an obligation to explain it,” Yoo said from his Berkeley office. “I’m one of the few people who is willing to defend decisions I made in government.”

Those decisions, made when he was a mid-level Justice Department adviser, have been the most fiercely contested legal positions of the Bush presidency. Framing the battle against terrorism as a wartime emergency, Yoo redefined torture, reinterpreted the Constitution and classified as archaic the long-established humanitarian rules of the battlefield.

Yoo wrote a memo that said the White House was not bound by a federal law prohibiting warrantless eavesdropping on communications that originated or ended in the United States. When news of the program broke, members of both parties called for hearings.

Yoo believes he was correct, even if critics say the U.S. response to the Sept. 11, 2001, attacks “threatens the very idea of America,” as one editorial said. “It would be inappropriate for a lawyer to say, ‘The law means A, but I’m going to say B because to interpret it as A would violate American values,'” Yoo said. “A lawyer’s job is if the law says A, the law says A.”

How Yoo, who has never met President Bush or Vice President Cheney, came to be a principal interpreter of laws and the Constitution for the Bush team is a story rooted in his conservative convictions and a network of like-minded thinkers who helped him thrive.

“He has succeeded and won people over and advanced his ideas,” said Manus Cooney, who hired Yoo on to the Judiciary Committee staff of Sen. Orrin G. Hatch (R-Utah) in 1995. “As far as conservative academics, I don’t think there’s anyone in the law whose contacts run deeper in the three branches, or higher.”

Yoo traces his convictions in no small part to his parents, and Ronald Reagan. His father and mother are psychiatrists who grew up in Korea during the Japanese occupation and the Korean War. They emigrated in 1967, when Yoo was 3 months old. They sought three things, he said: education, economic opportunity and democracy. They settled in Philadelphia because they admired Eugene Ormandy, then conductor of the Philadelphia Orchestra.

Coming of age in an anti-communist household, Yoo said, he associated strong opposition to communist rule with the Republican Party and was himself “attracted to Reagan’s message.” What he liked most in conservatism was “the grounding in reason and reasonableness.”

Yoo attended Episcopal Academy, a private religious school where he studied history, Latin and Greek. Then came Harvard, where he discovered that many people he encountered “were very different-minded, who thought that conservatives were actually sort of stupid or backward.” He studied diplomatic history and worked for the school newspaper, where in 1988 he wrote a presidential endorsement of George H.W. Bush rejected by the editorial board’s liberal majority.

“It got even worse at law school,” Yoo said, recalling the first meeting he attended at the Federalist Society, a national organization of conservatives and libertarians, which attracted all of nine people. Critical of some fellow students who, he said, considered abortion and affirmative action to be the era’s most important questions, he settled on matters of war and peace.

With the help of his Federalist Society contacts, he landed a clerkship with U.S. Appeals Judge Laurence H. Silberman, known for his experience in national security issues. Soon after being hired at Berkeley, which Yoo described as the best school to offer him a tenure-track job, he left for the Supreme Court, where he clerked for Thomas and played squash with Justice Antonin Scalia.

Yoo reached the Judiciary Committee staff after Hatch began a search for bright, conservative up-and-comers. Cooney, the staff director, said Yoo maneuvered well: “His smarts are undeniable, but unlike others of similar or equal wattage, he has an appreciation for the political nature of D.C.”

Returning to Berkeley, Yoo — who had interned for the Wall Street Journal — turned to his legal writings and op-eds. He earned tenure in 1999.

Along the way, he became a regular at the conservative American Enterprise Institute in Washington, where he often found himself in sync with international law skeptic John R. Bolton, an ally of Cheney’s and now ambassador to the United Nations. Yoo also testified to the GOP-led Florida legislature during the 2000 presidential recount.

Despite his rsum and connections, Yoo required a particular convergence for his views to become as influential as they did. He needed a well-placed position, a national crisis and a receptive audience. He quickly got all three.

Known for his belief in a strong presidency, he joined the Justice Department’s Office of Legal Counsel, which advises the attorney general and the White House, in July 2001. Two months later came the terrorist attacks and the rush to respond. Soon, Yoo found his audience in the highest echelons of the White House, where the president and vice president already tended to see the courts, Congress and international conventions as constraints on the conduct of foreign affairs and national security.

“He was the right person in the right place at the right time,” said Georgetown University’s David Cole, a constitutional scholar and administration critic. “Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, ‘You can do what you want.’ “

In a series of opinions, Yoo argued that the Constitution grants the president virtually unhindered discretion in wartime. He said the fight against terrorism, with no fixed battlefield or uniformed enemy, was a new kind of war.

Two weeks after Sept. 11, Yoo said in a memo for the White House that the Constitution conferred “plenary,” or absolute, authority to use force abroad, “especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States.”

In reasoning Bush cited last week in defending his decision to authorize warrantless wiretapping of U.S. citizens, Yoo’s Sept. 25, 2001, memo said Congress granted the president great latitude on Sept. 14, 2001, when it supported the use of force in response to the attacks. The resolution specified the Sept. 11 plotters and their supporters.

“Nonetheless,” the memo concluded, “the President’s broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.”

The majority view among constitutional scholars holds that the Framers purposely imposed checks on the executive branch, even in wartime, not least in reaction to the rule of Britain’s King George III. On such issues, Yoo’s critics contend, he went too far. “It’s largely a misreading of original intent,” Cole said. “The Framers, above all, were concerned about a strong executive.”

An Aug. 1, 2002, memo on interrogation, written largely by Yoo, drew the most intense criticism. Saying the administration was not bound by federal anti-torture laws, it declared that, to be considered torture, techniques must produce lasting psychological damage or suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

Word of the memo sparked an outcry, causing the White House to back away.

“The idea that . . . Congress has no authority to impose limits on torture has little support in constitutional texts or history, or legal precedent,” said University of Chicago law professor Cass Sunstein. Yet Sunstein, like many of Yoo’s critics, called him “a very interesting and provocative scholar” who “doesn’t deserve the demonization to which he has been subject.”

Yoo thinks his critics should understand that he offered legal advice, while others made policy.

“I think people don’t understand how difficult was the work we did, how difficult the questions, how recent the 9/11 attacks were,” he said. “There was no book at the time you could open and say, ‘under American law, this is what torture means.’ “

“The lawyer’s job is to say, ‘This is what the law says and this is what you can’t do,’ ” Yoo said. He advised the White House that the Geneva Conventions do not apply to al Qaeda or the terrorism fight, “but the president could say as a matter of policy we’re going to apply them anyway.”

Elisa Massimino, Washington director of Human Rights First, is among those who say Yoo deserves considerable blame. “The issues which have most disturbed Americans about the conduct of the executive branch in fighting terrorism can ultimately be traced to legal theories that he espoused in memos pushing the administration in that direction,” she said.

Yoo draws inspiration from Thomas and Hatch, saying, “I’ve seen how they’ve persevered and still stand up for what they believe in and get their point across.” It is a style affirmed by Bork, who wrote a glowing blurb for Yoo’s new book, “The Powers of War and Peace.”

“He’s just being vilified. It’s the usual conduct of business in this town right now,” Bork said. “You argue your position. What else can you do? There’s no tactic that can deflect criticism.”

Research editor Lucy Shackelford and researcher Julie Tate contributed to this report.

AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers.

It was not a shock to learn that shortly after the Sept. 11 attacks, President Bush authorized the National Security Agency to conduct intercepts of international phone calls to and from the United States. The 1978 Foreign Intelligence Surveillance Act permits the government to gather the foreign communications of people in the U.S. — without a warrant if quick action is important. But the law requires that, within 72 hours, investigators must go to a special secret court for a retroactive warrant.

The USA Patriot Act permits some exceptions to its general rules about warrants for wiretaps and searches, including a 15-day exception for searches in time of war. And there may be a controlling legal authority in the Sept. 14, 2001, congressional resolution that authorized the president to go after terrorists and use all necessary and appropriate force. It was not a declaration of war in a constitutional sense, but it may have been close enough for government work.

Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn’t last four years.

In that time, Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed.

Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA Patriot Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him.

“We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity,” said Attorney General Alberto Gonzales. The Department of Justice made a similar assertion as far back as 2002, saying in a legal brief: “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.” Gonzales last week declined to declassify relevant legal reviews made by the Department of Justice.

Perhaps they were researched in a Star Chamber? Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.

Surely the “strict constructionists” on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must “take care that the laws be faithfully executed.” That includes following the requirements of laws that limit executive power. There’s not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.

Some ancillary responsibility, however, must be attached to those members of the House and Senate who were informed, inadequately, about the wiretapping and did nothing to regulate it. Sen. John D. Rockefeller IV, Democrat of West Virginia, told Vice President Dick Cheney in 2003 that he was “unable to fully evaluate, much less endorse these activities.” But the senator was so respectful of the administration’s injunction of secrecy that he wrote it out in longhand rather than give it to someone to type. Only last week, after the cat was out of the bag, did he do what he should have done in 2003 — make his misgivings public and demand more information.

Published reports quote sources saying that 14 members of Congress were notified of the wiretapping. If some had misgivings, apparently they were scared of being called names, as the president did last week when he said: “It was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy.”

Wrong. If we don’t discuss the program and the lack of authority for it, we are meeting the enemy — in the mirror.

One wonders if Osama bin Laden didn’t win after all. He ruined the America that existed on 9/11. But he had help.

If, back in 2001, anyone had told me that four years after bin Laden’s attack our president would admit that he broke U.S. law against domestic spying and ignored the Constitution — and then expect the American people to congratulate him for it — I would have presumed the girders of our very Republic had crumbled.

Had anyone said our president would invade a country and kill 30,000 of its people claiming a threat that never, in fact, existed, then admit he would have invaded even if he had known there was no threat — and expect America to be pleased by this — I would have thought our nation’s sensibilities and honor had been eviscerated.

If I had been informed that our nation’s leaders would embrace torture as a legitimate tool of warfare, hold prisoners for years without charges and operate secret prisons overseas — and call such procedures necessary for the nation’s security — I would have laughed at the folly of protecting human rights by destroying them.

If someone had predicted the president’s staff would out a CIA agent as revenge against a critic, defy a law against domestic propaganda by bankrolling supposedly independent journalists and commentators, and ridicule a 37-year Marie Corps veteran for questioning U.S. military policy — and that the populace would be more interested in whether Angelina is about to make Brad a daddy — I would have called the prediction an absurd fantasy.

That’s no America I know, I would have argued. We’re too strong, and we’ve been through too much, to be led down such a twisted path.

What is there to say now?

All of these things have happened. And yet a large portion of this country appears more concerned that saying ”Happy Holidays” could be a disguised attack on Christianity.

I evidently have a lot poorer insight regarding America’s character than I once believed, because I would have expected such actions to provoke — speaking metaphorically now — mobs with pitchforks and torches at the White House gate. I would have expected proud defiance of anyone who would suggest that a mere terrorist threat could send this country into spasms of despair and fright so profound that we’d follow a leader who considers the law a nuisance and perfidy a privilege.

Never would I have expected this nation — which emerged stronger from a civil war and a civil rights movement, won two world wars, endured the Depression, recovered from a disastrous campaign in Southeast Asia and still managed to lead the world in the principles of liberty — would cower behind anyone just for promising to “protect us.”

President Bush recently confirmed that he has authorized wiretaps against U.S. citizens on at least 30 occasions and said he’ll continue doing it. His justification? He, as president — or is that king? — has a right to disregard any law, constitutional tenet or congressional mandate to protect the American people.

Is that America’s highest goal — preventing another terrorist attack? Are there no principles of law and liberty more important than this? Who would have remembered Patrick Henry had he written, “What’s wrong with giving up a little liberty if it protects me from death?”

Bush would have us excuse his administration’s excesses in deference to the ”war on terror” — a war, it should be pointed out, that can never end. Terrorism is a tactic, an eventuality, not an opposition army or rogue nation. If we caught every person guilty of a terrorist act, we still wouldn’t know where tomorrow’s first-time terrorist will strike. Fighting terrorism is a bit like fighting infection — even when it’s beaten, you must continue the fight or it will strike again.

Are we agreeing, then, to give the king unfettered privilege to defy the law forever? It’s time for every member of Congress to weigh in: Do they believe the president is above the law, or bound by it?

Bush stokes our fears, implying that the only alternative to doing things his extralegal way is to sit by fitfully waiting for terrorists to harm us. We are neither weak nor helpless. A proud, confident republic can hunt down its enemies without trampling legitimate human and constitutional rights.

Ultimately, our best defense against attack — any attack, of any sort — is holding fast and fearlessly to the ideals upon which this nation was built. Bush clearly doesn’t understand or respect that. Do we?