Congress May Prevail on War Power

    In defending a decision to let the National Security Agency eavesdrop inside America without a court warrant, the White House is invoking the same legal argument it uses to justify its policies at the prison for terror suspects at Guantánamo Bay, Cuba.

    President Bush says post-Sept. 11, 2001, war powers entitle him to circumvent civilian courts on a range of war-on-terror activities – from keeping terror suspects captive in cages at the U.S. Navy base in Cuba to letting U.S. agents listen in on phone calls between people in the United States and foreigners, to gather intelligence on al Qaeda.

    Yet now, it looks like Congress – not the courts – will examine the legality of the eavesdropping episode, which some are calling “Spookgate.”

    “The president has been ambitious in defending us, and now the Congress wants to know if he has been overly ambitious – and if it [that ambition] has offended civil liberties,” says Pepperdine University law professor Douglas Kmeic, a Reagan administration conservative. “The real check and balance is this dynamic between Congress and the president.”

    Until now, the courts have largely refereed whether the White House is overreaching when it says Congress’ authorization for the use of force has allowed everything from the holding of foreign terror suspects as enemy combatants, not POWs; to having U.S. military officers, not civilian judges, rule on war crimes in Military Commissions; to whether the Defense Department can hold U.S. citizens without charge, as enemy combatants.

    And with mixed results.

    Deferred Issue

    The mostly conservative Fourth U.S. Circuit Court of Appeals in Richmond, Va., bucked the Bush administration just last week in the case of one-time Chicago gang member José Padilla, held nearly incommunicado for 3 ? years as an alleged, would-be dirty bomber. Rather than shift Padilla’s case to federal court in Miami, the Fourth Circuit left for the Supreme Court to decide whether the Bush administration was allowed to hold him as a military prisoner in the first place.

    Attorney General Alberto Gonzales defended the program last week by citing Supreme Court Justice Sandra Day O’Connor’s ruling in Hamdi vs. Bush that upheld the president’s power to create a category of captive called enemy combatant.

    “She said it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder – the duration of the hostilities,” he said at the White House.

    Critics point to another portion of the same ruling: “We have long since made it clear,” she wrote for the plurality of the court, “that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

    Strong Enough

    Civil libertarians argue that the U.S. legal system is strong enough to cope with the security challenges presented by a global terror network.

    “The president thinks the war on terror gives him carte blanche to go outside of the law,” says attorney Michael Ratner of New York’s Center for Constitutional Rights, an early critic of the administration’s expansive use of power.

    He calls revelations of warrantless wiretapping “all of one piece, another power grab by the president” that skirted not only Washington’s secret Foreign Intelligence Surveillance Court but symbolizes the overarching issue of presidential powers.

    “It is not debatable whether the president can order electronic eavesdropping once Congress has passed a law making it criminal to do so,” asserts Ratner. “It is impeachable. The fact that we are sitting in 21st century America debating the issue of presidential power is ridiculous to me.”

    Enter Congress. Four years ago after it authorized the use of military force against al Qaeda, on Sept. 18, 2001, says Kmeic, the war on terror seems to most Americans less like World War II – and “more like Vietnam.”

    So now, Kmeic says, lawmakers have begun to debate the meaning of that military force authorization:
• “Is it strong enough to allow the president to unilaterally determine enemy combatants?

• “Is it strong enough to say that those in Guantánamo have no access to federal courts?

• “Is it a strong enough hand for him to authorize spying on American citizens, seemingly contrary to the statutes that have been passed for other purposes?”

    Firestorm Reaction

    Civil libertarian protests have been on a slow burn for some time – first over plans to summarily deport illegal immigrants, later on the question of whether a White House legal argument became a cover for interrogation using torture.

    Now, the disclosure that President Bush authorized domestic wiretapping more than 30 times, every 45 days, has ignited a firestorm.

    Amid last week’s Christmas sales, the American Civil Liberties Union bought a full-page ad in The New York Times that showed Richard Nixon and the headline, This Man Wasn’t Above the Law – then President Bush under the heading, Neither Is This One.

    At issue, among other things, is whether the president needs extraordinary powers and can lawfully invoke them because he considers the country at war with a global scourge, called terrorism.

    “We’ve put in place since 9/11 an aggressive posture that says we’re going to go after the terrorists wherever we find them. We’re going to use all means that are available to us consistent with the laws and the Constitution to take on the terrorists,” Vice President Dick Cheney said on CNN from Pakistan last week.

    “The fact of the matter is we’re doing it in accordance with the Constitution and the laws of the United States, and it ought to be supported. This is not about violating civil liberties because we’re not. This is about defending the country against further terrorist attack. That is what we’re sworn to do.”

    As encapsulated in the Patriot Act debate, opponents argue that the administration has to work harder to find legal methods within existing law to hunt down and prosecute terrorists as criminals, and not improvise under the guise of war powers.

    Hearing Planned

    Absent disclosure of which Americans had their phones and e-mail bugged without a warrant in the top-secret program, legal experts predict Congress will review the program.

    The chairman of the Senate Judiciary Committee, Arlen Specter, of R-Pa., has agreed to hold hearings on the topic next year.

    Americans need look no further than the Iran-Contra scandal to see one possible scenario:

    Democrats in the late 1980s uncovered a Reagan administration program that skirted a congressional ban on aid to Nicaragua’s Contra rebels by using the proceeds from secret weapons sales.

    Cheney, at the time a Wyoming congressman, argued then – as he does now – for an expansive view of presidential authority. Reagan dismantled the secret program after it became public.

    Presendential War Powers

    President Bush’s authorization of domestic spying is the latest in a long history of White House efforts to expand presidential war powers. Some examples:
• The Alien and Sedition Acts of 1798: These laws, passed in response to war fever against France, gave President John Adams the power to imprison government critics and deport aliens.

• Suspending liberties during the Civil War: President Abraham Lincoln suspended the right of citizens to challenge their arrests in court and defied a court order challenging his decision.

• The Sedition Act of 1918: Gave President Woodrow Wilson broad authority to arrest critics. The law was repealed three years later.

• Interning Japanese Americans: During World War II, President Franklin Roosevelt ordered the internment of more than 100,000. The government later apologized.

• Nationalizing the steel industry: President Harry S. Truman tried to assert federal control of the steel industry to avoid a strike that could have disrupted Korean War supplies. The Supreme Court blocked him.

• Domestic spying: President Richard Nixon authorized electronic surveillance without court approval against Americans suspected of subversion. The Supreme Court ruled in 1972 that he had exceeded his authority.

• The Iran-Contra affair: Frustrated by a congressional ban on aid to Nicaraguan Contra rebels, President Ronald Reagan authorized a secret plan to send them proceeds from the sale of weapons to Iran. He dismantled the program after it became public.

• Enemy combatants: The Supreme Court ruled last year that President Bush had the authority to detain U.S. citizens as enemy combatants in the war on terrorism but they could appeal their captivity to the courts.

    ——–

    Ron Huchenson, Knight Ridder Washington Bureau.

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Fear Destroys What bin Laden Could Not

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?

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By surrendering our liberties, we hand victory to terrorists

The authorization of domestic spying without warrants amounts to nothing less than a surrender of our civil liberty, the precise thing that guarantees our freedom and makes us so different from those enemies of freedom from whom the Bush administration is so determined to protect us.

Expanding the power of federal agents to pry into private lives suggests that we have already surrendered in the war on terror. If we willingly sacrifice the privacy, civil liberties and individual rights that are the heart of our Constitution, have we not handed victory to the terrorists? If the terrorists have caused us to be so frightened and cowed that we are willing to summarily dispense with the rudiments of our freedom, we have effectively capitulated to our enemies.

In keeping with the system of checks and balances devised to prevent any branch of government – particularly an executive seeking to assume the trappings of a monarch – from acting in derogation of the rights of the people, the showing of probable cause to a court of competent jurisdiction was established in the Fourth Amendment as the fundamental protection of individual liberty.

The administration has seen fit to unilaterally and fundamentally change that system to one in which the executive alone decides who is secure in his or her personal liberty. It has the remarkable effect of a constitutional amendment accomplished in secret. Essentially, an “except for the following circumstances” clause has been added to the Fourth Amendment, with government agents free to fill in the blanks as to what circumstances might apply.

The horrific acts of 9/11 called on the full measure of our determination to eradicate an evil enemy of civilization and decency. So long as wholesale murder is deemed to be a viable means to a political end, when killers are knighted as freedom fighters, there can be no peace and no context for justice and prosperity. Those who practice such barbarism cannot be permitted to roam freely, and we were vested with the right, and indeed the responsibility, to respond with the full measure of our capacity.

But that bloodthirsty attack did not constitute a justification for secret acts that diminish the rights of American citizens to be secure against invasions of their privacy by federal agents. On the contrary, it called on us to display an emphatic appreciation for the freedoms with which we have been blessed – the things that set us apart from the forces of hate and destruction.

Freedom is the most powerful weapon against enemies who recruit from the ranks of those burdened by hopelessness fostered by being subjects to the yoke of tyranny. In the face of such an enemy, we should be wearing our freedoms proudly on our sleeves, not surrendering them in covert eavesdropping operations against our own citizens.

We have established a system in which a secret federal court serves to expedite search warrants in national security matters while providing the judicial oversight called for in the Constitution. The president, by executive order, set up a separate system to bypass the court in connection with matters federal agents determine are related to terrorism. Not only does such a system deprive citizens of the fundamental right to judicial review for probable cause, it also ignores the duly enacted legal process set up by the legislative branch to address these very matters.

This administration needs to be held accountable for failings in connection with squandering the worldwide sympathy and outrage of the international community in response to 9/11. But the clandestine abrogation of our constitutional liberties is of far greater consequence than any administrative bumbling. It strikes at the heart of who we are as a nation, which established self-government by the people under the protection of law.

If the terrorists have taken from us the freedom that makes us who we are, we have given up our identity as a people. Our Constitution and laws provide the means of our domestic protection against acts of evil but do so in a way that ensures that government intrusion is permitted only where the courts determine that probable cause exists.

The terrorists apparently have frightened the president into giving up that assurance against tyranny. If he was going to surrender that constitutional right on our behalf, he should have at least told us first.

Raymond Daniel Burke is a principal in a Baltimore law firm. His e-mail is rdburke@ober.com.

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U.S. Airstrikes Take Toll on Civilians

U.S. Marine airstrikes targeting insurgents sheltering in Iraqi residential neighborhoods are killing civilians as well as guerrillas along the Euphrates River in far western Iraq, according to Iraqi townspeople and officials and the U.S. military.

Just how many civilians have been killed is strongly disputed by the Marines and, some critics say, too little investigated. But townspeople, tribal leaders, medical workers and accounts from witnesses at the sites of clashes, at hospitals and at graveyards indicated that scores of noncombatants were killed last month in fighting, including airstrikes, in the opening stages of a 17-day U.S.-Iraqi offensive in Anbar province.

“These people died silently, complaining to God of a guilt they did not commit,” Zahid Mohammed Rawi, a physician, said in the town of Husaybah. Rawi said that roughly one week into Operation Steel Curtain, which began on Nov. 5, medical workers had recorded 97 civilians killed. At least 38 insurgents were also killed in the offensive’s early days, Rawi said.

In a Husaybah school converted to a makeshift hospital, Rawi, four other doctors and a nurse treated wounded Iraqis in the opening days of the offensive, examining bloodied children as anxious fathers soothed them and held them down.

“I dare any organization, committee or the American Army to deny these numbers,” Rawi said.

U.S. Marines in Anbar say they take pains to spare innocent lives and almost invariably question civilian accounts from the battleground communities. They say that townspeople who either support the insurgents or are intimidated by them are manipulating the number of noncombatant deaths for propaganda — a charge that some Iraqis acknowledge is true of some residents and medical workers in Anbar province.

“I wholeheartedly believe the vast majority of civilians are killed by the insurgency,” particularly by improvised bombs, said Col. Michael Denning, the top air officer for the 2nd Marine Division, which is leading the fight against insurgents in Anbar province.

In an interview at a Marine base at Ramadi, Anbar’s provincial capital, Denning acknowledged that a city was “a very, very difficult place to fight.” He said, however, that “insurgents will kill civilians and try to blame it on us.”

But some military analysts say the U.S. military must do more to track the civilian toll from its airstrikes. Sarah Sewall, deputy assistant secretary of defense from 1993 to 1996 and now program director for the Carr Center for Human Rights Policy at Harvard, said the military’s resistance to acknowledging and analyzing so-called collateral damage remained one of the most serious failures of the U.S. air and ground war in Iraq.

“It’s almost impossible to fight a war in which engagements occur in urban areas [and] to avoid civilian casualties,” Sewall, whose center is a branch of Harvard’s Kennedy School of Government that focuses on issues such as genocide, failed states and military intervention, said in a telephone interview.

“In a conflict like Iraq, where civilian perceptions are as important as the number of weapons caches destroyed, assessing the civilian harm must become a part of the battle damage assessment process if you’re going to fight a smart war,” she said.

The number of airstrikes carried out each month by U.S. aircraft rose almost fivefold this year, from roughly 25 in January to 120 in November, according to a tally provided by the military. Accounts by residents, officials and witnesses in Anbar and the Marines themselves make clear that Iraqi civilians are frequently caught in the attacks.

On Nov. 7, the third day of the offensive, witnesses watched from the roof of a public building in Husaybah as U.S. warplanes struck homes in the town’s Kamaliyat neighborhood. After fires ignited by the fighting had died down, witnesses observed residents removing the bodies of what neighbors said was a family — mother, father, 14-year-old girl, 11-year-old boy and 5-year-old boy — from the rubble of one house.

Survivors said insurgents had been firing mortars from yards in the neighborhood just before the airstrikes. Residents pleaded with the guerrillas to leave for fear of drawing attacks on the families, they said, but were told by the fighters that they had no other space from which to attack.

Near the town of Qaim one day last month, a man who identified himself only as Abdul Aziz said a separate U.S. airstrike killed his grown daughter, Aesha. Four armed men were also found in the rubble of her house, he said.

“I don’t blame the Americans. I blame Zarqawi and his group, who were using my daughter’s house as a shelter,” said Abdul Aziz, referring to Abu Musab Zarqawi, leader of the foreign-dominated group al Qaeda in Iraq.

Abdul Aziz spoke beside his daughter’s newly dug grave, in a cemetery established for the 80 to 90 civilians who Anbar officials said were killed in the first weeks of the offensive. Several dozen new graves were evident, and residents said more than 40 victims of the fighting were to be buried that day alone. Witnesses saw only 11, all wrapped in blankets for burial. Residents said two of the 11 were women.

Abdul Aziz’s grandsons ascribed blame for their mother’s death more pointedly. “She was killed in the bombing by the Americans,” said Ali, 9, the oldest of three brothers.

Operation Steel Curtain is representative of a series of offensives in western Anbar that began in late April. Brig. Gen. James L. Williams of the 2nd Marine Division described them as a town-by-town campaign to drive out insurgents and establish a permanent Iraqi army presence in the heavily Sunni Arab region. Iraqi and foreign insurgents use the Euphrates River communities for bases and for logistics support to funnel money, recruits and ordnance from Anbar and neighboring Syria to fighters planning attacks elsewhere in Iraq.

Steel Curtain involved 2,500 U.S. Marines, soldiers and sailors and about 1,000 soldiers of the U.S.-trained Iraqi army, including newly established units of locally recruited scouts commissioned mainly for their knowledge of the area, the Marines said. As the Iraqi and U.S. forces moved through Husaybah, Karabilah and other towns, Marines said, they encountered scores of mines and insurgent-rigged bombs made from artillery shells or other ordnance. Ten Marines and 139 insurgents died in the offensive, the Marines said. They gave no totals for known civilian deaths.

Statements issued by the U.S. military during the offensive reported at least two incidents that were described as airstrikes unwittingly conducted on buildings where civilians were later found to have been present.

On Nov. 8, a man in Husaybah led U.S. and Iraqi forces to a house destroyed by U.S. airstrikes the previous day, Marines said. Searching the rubble, Iraqi troops and U.S. Marines found two wounded civilians — a young girl and a man — and recovered five bodies.

The Marines were told that fighters loyal to Zarqawi had forced their way into the house, killed two of the people inside and locked the rest of the family on a lower floor before using the building to attack Iraqi and U.S. forces clearing the neighborhood.

“The soldiers and Marines had no knowledge of the civilians being held hostage in the home at the time of the attack,” Marines said in a statement. It could not be determined if that airstrike was the same as the one described by witnesses who watched removal of the dead family.

On Nov. 15, U.S.-led forces called in an airstrike after coming under small-arms fire from a building in the hamlet of New Ubaydi. Two men ran from the building waving white flags after the airstrike, followed by 15 male and female civilians, a U.S. Marine statement said.

Marines described other instances of insurgents hiding among civilians in Anbar, including occasions when they dressed as women and tried to pass unnoticed among townspeople fleeing the battles. Residents, local officials and emergency workers said insurgents often sheltered among civilians in urban neighborhoods.

Arkan Isawi, an elder in Husaybah, said he and four other tribal leaders gathered to assess the damage while the operation was still underway and identified at least 80 dead, including women and children. “I personally pulled out a family of three children and parents,” he said.

An exact count, however, was impossible, he said. “Anyone who gives you a number is lying, because the city was a mess, and people buried bodies in backyards and parking lots,” with other bodies still under rubble, Isawi said.

Townspeople, medical workers and officials often exaggerate death tolls, either for effect or under orders from insurgents. However, accounts from other officials and residents are borne out at least partially by direct observation of bodies and other evidence.

The accounts of U.S. Marines and Iraqi civilians of airstrikes often diverge sharply.

On Oct. 16, for instance, a U.S. F-15 pilot caught a group of Ramadi-area insurgents planting explosives in a blast crater on a road used by U.S. forces, Denning said. The F-15 dropped a bomb on the group, and analysis of video footage shot by the plane showed only what appeared to be grown men where the bomb struck, Denning said. After the airstrike, he said, roadside bombs in the area “shut down to almost nothing.

“That was a good strike, and we got some people who were killing a lot of people,” Denning said.

Capt. Jeffrey S. Pool, a spokesman for the 2nd Marines, said it was not possible that children were killed in that strike unless they were outside the range of the F-15’s camera.

Residents, however, said the strike killed civilians as well as insurgents, including 18 children. Afterward, at a traditional communal funeral, black banners bore the names of the dead, and grieving parents gave names, ages and detailed descriptions of the children they said had been killed, witnesses said. The bodies of three children and a woman lay unclaimed outside a hospital after the day’s fighting.

American commanders insist they do everything possible to avoid civilian casualties, but overall, Denning said, “I think it would be very difficult to prosecute this insurgency” without airstrikes.

The precision-guided munitions used in all airstrikes in Anbar “have miss rates smaller than the size of this table,” Denning said in the bare-bones cafeteria of one of several Marine bases around Ramadi. He said that officers at Ramadi and at the Marines’ “lessons learned” center in Quantico coordinate each attack using the best intelligence available. “I have to sell it to about two or three different chains of command: ‘What are you doing to make sure there are no civilian casualties?’ ” Denning said.

Sewall, the former Pentagon official, also said air power often is the best means for taking out a target more cleanly than ground forces could. But, she said, U.S. forces don’t do enough after the airstrikes to figure out whether each one succeeded in hitting the intended targets while sparing civilians.

Marine officers said their lessons-learned center at Quantico did not try to assess civilian casualties from attacks. At the Pentagon, routine bomb-damage assessments rely heavily on the examination of aerial photos and satellite images, which Sewall said were “good for seeing if a building was hit, but not as good for determining who was inside.”

“I have enormous respect for the extent to which U.S. air power has become discriminate,” Sewall said. “But when you’re using force in an urban area or using force in an area with limited intelligence,” and facing an enemy actively “exploiting distinctions between combatants and noncombatants, air power becomes challenging no matter how discriminate it is.

“When it comes to the extent to which they are minimizing civilian harm, the question becomes: How do you know?” Sewall said.

Staff writer Thomas E. Ricks in Washington contributed to this report.

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Spy Agency Mined Vast Data Trove, Officials Report

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

    The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

    As part of the program approved by President Bush for domestic surveillance without warrants, the NSA has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

    The government’s collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the NSA’s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic “switches,” according to officials familiar with the matter.

    “There was a lot of discussion about the switches” in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. “You’re talking about access to such a vast amount of communications, and the question was, How do you minimize something that’s on a switch that’s carrying such large volumes of traffic? The court was very, very concerned about that.”

    Since the disclosure last week of the NSA’s domestic surveillance program, President Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda.

    What has not been publicly acknowledged is that NSA technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

    The current and former government officials who discussed the program were granted anonymity because it remains classified.

    Bush administration officials declined to comment on Friday on the technical aspects of the operation and the NSA’s use of broad searches to look for clues on terrorists. Because the program is highly classified, many details of how the NSA is conducting it remain unknown, and members of Congress who have pressed for a full Congressional inquiry say they are eager to learn more about the program’s operational details, as well as its legality.

    Officials in the government and the telecommunications industry who have knowledge of parts of the program say the NSA has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the NSA since the Sept. 11 attacks, the officials said.

    This so-called “pattern analysis” on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.

    The use of similar data-mining operations by the Bush administration in other contexts has raised strong objections, most notably in connection with the Total Information Awareness system, developed by the Pentagon for tracking terror suspects, and the Department of Homeland Security’s Capps program for screening airline passengers. Both programs were ultimately scrapped after public outcries over possible threats to privacy and civil liberties.

    But the Bush administration regards the NSA’s ability to trace and analyze large volumes of data as critical to its expanded mission to detect terrorist plots before they can be carried out, officials familiar with the program say. Administration officials maintain that the system set up by Congress in 1978 under the Foreign Intelligence Surveillance Act does not give them the speed and flexibility to respond fully to terrorist threats at home.

    A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.

    “All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.

    Such information often proves just as valuable to the government as eavesdropping on the calls themselves, the former manager said.

    “If they get content, that’s useful to them too, but the real plum is going to be the transaction data and the traffic analysis,” he said. “Massive amounts of traffic analysis information – who is calling whom, who is in Osama Bin Laden’s circle of family and friends – is used to identify lines of communication that are then given closer scrutiny.”

    Several officials said that after President Bush’s order authorizing the NSA program, senior government officials arranged with officials of some of the nation’s largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States’ communications networks and international networks. The identities of the corporations involved could not be determined.

    The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

    One outside expert on communications privacy who previously worked at the NSA said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

    The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970’s-era laws and regulations governing the NSA Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

    Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the NSA’s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency’s operational capability, according to current and former government officials.

    Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. “If the government is gaining access to the switches like this, what you’re really talking about is the capability of an enormous vacuum operation to sweep up data,” he said.

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What Bush Could Learn from Lincoln

My Christmas present to George W. Bush is a copy of Doris Kearns Goodwin’s splendid study of Lincoln and his Cabinet, ”Team of Rivals.” President Bush believes in redemption, and so do I. Here are just a few things Bush might profitably learn from our first Republican president.

Lincoln assumed the presidency at a time when the nation was horribly divided, not into culturally warring ”blue” states and ”red” ones, but into a real civil war between blues and grays — the states that stayed in the Union and those that seceded. Even among the unionists, Lincoln’s own Republican Party and Cabinet were bitterly rent between those who wanted to accelerate emancipation and punish the South and those who gave top priority to keeping the Republic whole.

Lincoln’s priority, always, was to preserve the Union and to reduce the sectional and ideological bitterness. As Goodwin brilliantly shows, he did so by the force of his personality and the generosity of his spirit. Lincoln had an unerring sense of when public opinion was ready for partial, then full abolition of slavery, and he would not move until he felt he had the people behind him. He governed by listening and persuading.

By contrast, Bush’s entire presidency is about eking out narrow victories, not about building national consensus. Even when he prevails, Bush wins by manipulation and stealth. His legacy is deepened division and bitterness.

Bush is said to live in a bubble. His tiny inner circle protects him from realities that might upset him or challenge his dimly informed certitudes. Lincoln, by contrast, had the confidence to reach out to critics and seek out widely divergent viewpoints.

Goodwin’s unusual title, ”Team of Rivals,” refers to the fact that Lincoln deliberately included in his Cabinet the prominent leaders of different factions of his party who had opposed him for the 1860 nomination. Some, like his treasury secretary, Salmon Chase, a fierce abolitionist, wanted Lincoln to proceed much more aggressively. Others feared that Lincoln was moving too fast and alienating border states like Maryland and Kentucky that permitted slavery but had voted not to leave the Union.

Goodwin, improbably finding something wholly new to illuminate this most heavily researched of historic figures, relies partly on the diaries of his contemporaries to reveal Lincoln’s sheer genius at winning the trust and affection of rivals.

Can you imagine Bush including in his inner Cabinet such Republicans as John McCain, who opposes Bush on torture of prisoners, or Chuck Hagel, who challenges the Iraq war, or Lincoln Chafee, who resists stacking the courts with ultra-right-wingers? Not to mention Democrats, a group Lincoln also included among his top appointees.

Bush, despite today’s ubiquity of media, doesn’t read newspapers, much less the Internet, and he settles for carefully filtered briefings. Lincoln was a voracious reader; he haunted the War Department’s telegraph office to get firsthand reports from the battlefield.

Lincoln gained incomparably in wisdom over four years. Does anyone think George W. Bush is wiser now than in 2001?

Despite civil insurrection, Lincoln resisted broad intrusions on democratic rights. Bush runs roughshod over liberties.

Bush’s visits to Iraq are choreographed media events. Lincoln often went to the front on horseback or by ship, almost alone, shunning news coverage, to confer at length with his generals, thank the troops, and educate himself.

Bush relies on secondhand inspirations of a speechwriting staff. He blathers when he wanders off script. Lincoln wrote his own words, including the timeless eloquence of the Second Inaugural or the Gettysburg Address. More often, his eloquence was extemporaneous.

Lincoln was magnanimous almost to a fault. His personal generosity and numerous acts of kindness helped him win over critics and, too briefly, to ”bind up the nation’s wounds.” Salmon Chase, who never gave up his dream that he should have been elected in 1860, allowed his allies to seek to push Lincoln aside and nominate Chase in 1864. Urged to break irrevocably with the faithless Chase, Lincoln instead appointed him chief justice of the Supreme Court.

Critics of the more moderate William Seward, Lincoln’s secretary of state, claimed that Seward functioned as acting president. Goodwin makes clear that this was fantasy. Dick Cheney, however, really does operate as de facto president.

When Lincoln was assassinated, three days after Robert E. Lee surrendered to Ulysses S. Grant, the nation lost the one man who might have spared America the awful years of inconclusive struggle between radical Reconstructionists and segregationists who wanted to restore slavery in everything but name. Much of today’s red state versus blue state bitterness has its roots in the struggle for black liberty versus the wounded humiliation of the white South, something Lincoln wanted to avoid at all cost.

The crippled presidency of his successor, Andrew Johnson, who ended up a pitiful captive of radical reconstructionists in Congress, was one of the bleakest chapters in our history. But this Union of the people did not perish from the earth. Reading Goodwin’s magnificent book, one has to believe that our nation, in a new birth of freedom, will survive even George W. Bush.

Robert Kuttner is co-editor of The American Prospect. His column appears regularly in the Globe.

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Bush and Wiretaps: Congress, Citizens, This Means War

In asserting his right to ignore the law, President Bush has slapped Congress right across the face and told them they better like it.

Congress can now mutter “Yes, sir” and cower in its corner like a whipped dog, as it has for most of the past five years, or it can fight back to defend its institutional authority. Either choice will mark a turning point in U.S. history.

At immediate issue is the president’s decision four years ago to allow the National Security Agency, an arm of the Pentagon, to spy on phone conversations and e-mails of U.S. civilians without court-approved warrants. President Bush insists the program is legal, but it’s important to understand what he means by that term.

Bush and his advisers do not claim that his actions are legal because they abide by the Foreign Intelligence Surveillance Act, or FISA; they quite clearly violate that law. Instead, they claim his actions are legal because as commander in chief, he can violate the law if he chooses and still be acting legally.

It is, in other words, his royal prerogative.

That is an extraordinary assertion of executive power, particularly since the president claims this authority will last “so long as the nation faces the continuing threat of an enemy that wants to kill American citizens,” which is pretty much forever.

Conservatives rushing to support Bush’s position out of personal loyalty might want to think about that. If allowed to stand, the president’s claim will fundamentally alter the balance of power not just between Congress and the presidency, but between our government and its citizens, and it will do so regardless of who occupies the Oval Office in the future.

Bush grounds his argument on need, claiming that current law gives him too little leeway to fight the war on terror effectively. That argument has at least four basic flaws.

First, it ought to alarm anyone who is truly serious about preserving personal liberty in the face of government power. “Necessity is the plea for every infringement of human freedom,” British statesman William Pitt warned in 1783. “It is the argument of tyrants; it is the creed of slaves.”

Second, the claim that Bush has had to violate FISA to protect our security is false. Under FISA, the government has explicit authority to begin wiretapping whenever it deems necessary, without seeking prior approval from a judge. The law merely requires the executive to seek after-the-fact approval from a top-secret special court within 72 hours. Since 1978 that FISA court has rejected just five of 18,748 warrants sought by the government.

Third, even if the law were defective, as Bush claims, no president has the power to make that determination on his own. This is a democracy; if there’s a problem with a law, the Constitution gives us a process for fixing it. In this case, FISA was a carefully calibrated, thoroughly debated effort to find the right balance between security and liberty; Bush does not have the authority to simply toss that work out the window because he disagrees with it. That’s the power of a dictator, not of a president.

Fourth, and most fundamentally, this argument of necessity calls into question who we have become as a people.

More than 160,000 U.S. troops are in Iraq this holiday season, putting their lives, bodies, souls and futures on the line. Thousands more are on duty in Afghanistan. And while those of us here at home celebrate their bravery, for the most part we are not required to share in it. We let them do the fighting and dying for us; we do the applauding and burying.

We do, however, run an infinitesimally small chance of falling victim to a terrorist attack. It happened once; it could certainly happen again, and we should do everything within reason to prevent a recurrence.

But it does not seem too much to ask that in facing down that danger, we demonstrate just a fraction of the bravery and resolution that our soldiers show. Osama bin Laden, after all, is not Adolf Hitler or imperial Japan or the Soviet Union.

If we civilians quake at the comparatively minor danger that he and his followers pose, if we rush to offer up our civil liberties in hopes of a little more safety, we prove ourselves unworthy of the sacrifice that our men and women in uniform are prepared to make.

Yes, the president has told us we should be fearful, encouraging us to compromise not just our freedom but our constitutional system of government. But if this is still the country we claim it to be, we will tell him no.

Jay Bookman is the deputy editorial page editor. His column appears Thursdays and Mondays.

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Iraqis March, Say Elections Were Rigged

Large demonstrations broke out across the country Friday to denounce parliamentary elections that protesters say were rigged in favor of the main religious Shiite coalition. Meanwhile, a lawyer for Saddam Hussein said he saw evidence that his client had been beaten.

Several hundred thousand people demonstrated after noon prayers in southern Baghdad Friday, many carrying banners decrying last week’s elections. Many Iraqis outside the religious Shiite coalition allege that the elections were unfair to smaller Sunni Arab and secular Shiite groups.

“We refuse the cheating and forgery in the elections,” one banner read.

During Friday prayers at Baghdad’s Umm al-Qura mosque, the headquarters of the Association of Muslim Scholars, a major Sunni clerical group, Sheik Mahmoud al-Sumaidaei told followers they were “living a conspiracy built on lies and forgery.”

“You have to be ready during these hard times and combat forgeries and lies for the sake of Islam,” he said.

Sunni Arab and secular Shiite factions demanded Thursday that an international body review election fraud complaints, and threatened to boycott the new legislature. The United Nations rejected the idea.

Their demand came two days after preliminary returns indicated that the current governing group, the religious Shiite United Iraqi Alliance, was getting bigger-than-expected majorities in Baghdad, which has large numbers of Shiites and Sunnis.

On Friday, more than 2,000 people demonstrated in Mosul, where some accused Iran of having a hand in election fraud. About 1,000 people demonstrated in Tikrit, Saddam’s hometown.

The former leader claimed at his trial this week that he had been beaten by his American captors.

Defense lawyer Khalil al-Dulaimi said Friday that he had seen marks on his client’s body. Speaking in Amman, Jordan, Dulaimi said that he had filed a compliant Thursday with the court hearing Saddam’s case.

The chief prosecutor, Jaafar al-Mousawi, told The Associated Press on Friday that he hadn’t seen a complaint but planned to visit Saddam and his seven co-defendants to review their health and “listen to their demands and supply them with everything they need.”

Meanwhile, gunmen Friday attacked an Iraqi army checkpoint in the city of Adhaim, in religiously and ethnically mixed Diyala province, killing eight soldiers and wounding seventeen, an Iraqi army officer said on condition he not be identified for fear of reprisal.

“There were too many to count,” said Akid, a 20-year-old soldier from Diwanayah being treated for gunshot wounds to both thighs. “They tried to kill everybody.”

Akid, who would only give his first name for fear of reprisal, said his battalion of about 600 men had already suffered over 250 desertions after a Dec. 3 ambush in Adhaim killed 19 Iraqi soldiers.

“They gave up,” he said. “They said, ‘The hell with this.”’

In Balad Ruz, 45 miles northeast of Baghdad, a suicide bomber detonated his explosives belt outside a Shiite mosque, killing four people and wounding eight, Diyala police said. Among the dead was a policeman guarding the mosque.

Defense Secretary Donald H. Rumsfeld said Friday that President Bush had authorized new cuts in U.S. combat troops in Iraq, below the 138,000 level that prevailed for most of this year. Rumsfeld did not reveal the exact size of the troop cut, but Pentagon officials have said as many as 7,000 combat troops could be leaving.

Criticisms of last week’s elections are seen by some as jockeying for position by both Sunnis and former Prime Minister Ayad Allawi, a secular Shiite, before negotiations on forming a new coalition government begin. No group is expected to win a majority of the legislature’s 275 seats.

The formerly dominant Sunni minority fears being marginalized by the Shiite majority, which was oppressed during Saddam’s reign.

Associated Press writers Jason Straziuso, Robert Burns and Anthony Castaneda contributed to this report.

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VCS Weekly Update: President Authorizes Spying on Americans

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December 22, 2005

Dear VCS Members and Supporters:

A political crisis is brewing in Washington, DC since the New York Times broke the news that President Bush authorized the National Security Agency to wiretap the communications of American citizens on U.S. soil, in violation of the Foreign Intelligence Surveillance Act. According to The Times, up to several thousand people have had their emails and telephone calls intercepted since 2001.

The first casualty of the news was last week’s late vote on extension of the Patriot Act — according to many interviews, several Senators may have reconsidered their vote when the news broke that the administration was evading the law to monitor the communications of Americans. Some conservative columnists, such as George Will, have argued that the President has overreached executive powers, and yesterday morning we learned that a member of the secret Foreign Intelligence Surveillance Court had resigned over the issue.

Senate Judiciary Committee Chairman Arlen Specter has announced he will conduct hearings into the issue early in the new year. Veterans for Common Sense will continue to closely monitor this issue and alert you to changes.

Harvey Kaye, author of Thomas Paine and the Promise of America, writes in the VCS weblog on what he believes Thomas Paine would think of a Presidential violation of law. Read it and make your own comments at:

http://www.veteransforcommonsense.org/index.cfm?page=weblog

On January 26, Florida Veterans for Common Sense will sponsor an evening with Professor Kaye at the University of South Florida. This promises to be an interesting and educational event, and we recommend our members in Florida check it out (and, if you haven’t already, consider getting involved with the chapter)). Find out more online at:

http://www.veteransforcommonsense.org/Index.cfm?Page=Module&ModuleID=2&EventID=81

Wrangling Over Defense Spending

Dianne M. Grassi wrote yesterday morning that the various add-ons to the Defense spending authorization (including provisions such as drilling in the Alaskan National Wildlife Refuge) have little to do with national defense or the needs of the troops.

News on the Iraq War:

 

Some members of Iraq’s Sunni minority raised objections this week over early results from last Thursdays national elections in Iraq. As of now, current counting shows that the elections largely went to a coalition of religious Shiite parties, some of whom have ties to Iran.

Finally, I’d like to that those of you who have come forward and made a gift or pledge in our end-of-year fundraising campaign. We’re more than half-way to our $20,000 goal, but there’s only ten days left before the end of the year!

If you haven’t made a gift to VCS lately, please consider supporting our work with a donation today.

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An insidious culture of surveillance

In a basically free society, abuses of civil and human rights often initially make sense, which appears to have been the case when President Bush took his baby steps toward a system of warrant-free, electronic surveillance of persons inside the United States — some citizens, some not.

Over time, however, the inch that government first takes becomes a mile, and that also appears to have been the case, as senators and congressmen from both parties, who were too trusting initially, are beginning to understand. The one enduring lesson that conservatives used to teach effectively is that government that is not checked, balanced, and watched like a hawk can gradually become oppressive.

And now, it’s happened again.

The latest abuse of civil rights and the Constitution began with the first round of captures of Al Qaeda operatives in Afghanistan and Pakistan in the weeks and months following the 9/11 attacks.

Some of these terrorists were caught in possession of their cellular telephones and laptop computers. Naturally, it occurred to the US agents involved to see where these cellphones and hard drives led — a perfectly understandable notion.

And then, as night follows day, it all got out of hand, morphing into a system of snooping that can only be justified by authoritarian theories of executive supremacy, complete with legal justifications for a super-secret program that are themselves super-secret.

The clue that even the government recognizes it is doing wrong lies in the almost laughable inability of top officials to discuss all this without resort to the tortured euphemism that authoritarians always rely on.

President Bush’s truculent response on Saturday to the surveillance program’s belated unmasking by The New York Times — which held up its story for a year for reasons that remain largely undisclosed — included the claim that it was designed ”to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations.”

As always, the problem arises from the government’s claim that it alone decides what a ”link” and ”related” mean; if thousands of people have had their ”communications” monitored, it follows that those links are decidedly tenuous, if not nonexistent.

On Sunday, the designated TV spokeswoman, Condoleezza Rice, invented ”seams”, ostensibly exploited by terrorists, between foreign intelligence and domestic law enforcement capabilities out of whole cloth. In fact, the government has bugged thousands of people, and it remains to be seen just how careful the targeting actually was.

One powerful piece of evidence that it got out of hand is the fact that surveillance has been government-wide in the last few years. American groups involved in nothing more than traditional protest and activism have been infiltrated and followed, by the FBI red-flagged by military intelligence agencies. There is a culture of surveillance now, not a few carefully limited operations against severe and immediate threats.

To those who are continually surprised that government behaves in this manner, it helps to remember that we have been down this road before. It is not as if international terrorism is the only modern threat the US has had to confront. There used to be a country called the Soviet Union, armed with thousands of nuclear weapons and motivated by a particularly devious kind of expansionism. During Vietnam, the war was so controversial that at any given moment, a large chunk of the country was involved in trying to stop it — legally. In both cases, these supposedly dire threats to national security gave birth to a large bureaucracy of oppression whose exposure during Watergate led to what we all thought were lasting reforms.

Even before Watergate exploded, there were two important Supreme Court decisions that appeared to define the limits of government power and (in the late 1970s) one important statute that appeared to close an obvious loophole.

In 1967, much closer to the dawn of the electronic age, the principle was established that evidence from wiretaps should be discarded from legal proceedings unless it was produced under the authority of a court-issued warrant based on a finding of probable cause that a crime had been committed.

Obviously, that didn’t cover purely intelligence-related fruits from electronic snooping, so five years later a unanimous court ruled that the wiretapping of alleged domestic subversives without a warrant was unconstitutional.

That left an obvious loophole with regard to the agents of other countries, and Congress presumably filled it in 1978 by enacting the Foreign Intelligence Surveillance Act. This statute established a secret court here that had to approve government applications for surveillance, a court that quickly established procedures for very rapid approvals in emergency situations.

You would think that had established an understandable, fair and efficient mechanism, but here we go again with another government for whom any procedure, any check or balance, is too cumbersome. You wonder why Bush claims he needs the so-called Patriot Act at all.

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