'You are either with us or against us'

Updated August 19, 2007

On December 16, 2005 in a now well-known article, NY Times reporters James Risen and Eric Lichtblau exposed a three-year old program authorized by George W. Bush, in which the National Security Agency (NSA) eavesdropped on "hundreds, perhaps thousands, of people inside the United States without warrants." "Nearly a dozen current and former officials" were concerned enough about the program's legality and lack of oversight to discuss it with the Times.

As reported by Newsweek's Jonathan Alter, Bush had "summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story." Bush's concern, Alter suggested, was not that public discussion of the program "is helping the enemy," as he claimed. (Many American Muslims suspected that the government might be monitoring their communications long before the Times story was published.) Rather, Alter wrote, Bush was "desperate to keep the Times from running this important story ... because he knew that it would reveal him as a law-breaker." (The Times acknowledged that it delayed publication of the story for a year to "conduct additional reporting," and also omitted some "information that administration officials argued could be useful to terrorists.")

The domestic eavesdropping, which the NSA calls a "special collection program" began soon after the terrorist attacks on September 11, 2001, and expanded as the Central Intelligence Agency (CIA) began to capture Qaeda operatives overseas. The NSA targeted phone numbers and contact information from captured cell phones and computers, and then expanded surveillance as monitored individuals contacted others. Hundreds of monitored contacts were reportedly inside the United States.

After the program was underway, according to the Times, congressional leaders from both parties were briefed in the Vice President's office by Cheney, then NSA director Lt. Gen. Michael V. Hayden, and CIA Director George Tenet. "It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program," Risen wrote. Other members of Congress were briefed over time as they assumed leadership positions. At least one congressman, Senator Rockefeller of West Virginia, wrote Cheney to express concern about the program.

Does He or Doesn't He?

Some of the officials who talked to the Times said "they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search." Others suggested that the program was unnecessary given the special courts established by the 1978 Foreign Intelligence Surveillance Act specifically to grant expedited warrants for surveillance cases with national intelligence implications. A FISA warrant requires only that the government show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups.

The administration has objected that FISA procedures are inadequate in cases when great urgency is needed, or when a large number of contacts must be monitored at one time. Critics noted that FISA procedures allow for surveillance to begin without a FISA warrant, if the attorney general determines that FISA criteria are satisfied and obtains a FISA warrant within 72 hours. This observation has led to speculation that the NSA domestic program does not conform to FISA requirements.

Recent statements by Bush and Attorney General Gonzales that FISA compliance is burdensome conflict with a statement made to the Senate Intelligence Committee on July 31, 2002 by James A. Baker, the Justice Department's top lawyer on intelligence policy. Baker was presenting the administration position on an amendment to FISA law proposed by Sen. Mike DeWine of Ohio that would have lowered the standard to obtain a FISA warrant from "probable cause" to "reasonable suspicion." Baker told the committee that because the "proposed change raises both significant legal and practical issues, the administration at this time is not prepared to support it." He also stated that "It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require."

At its inception the NSA domestic spying program had "few controls on it and little formal oversight." As the 2004 election approached, however, some officials became concerned that "the program might come under scrutiny by Congressional or criminal investigators," in a Kerry administration, according to the Times. Moreover, Judge Colleen Kollar-Kotelly, the federal judge who oversees the FISA court, questioned whether the administration was using evidence obtained through the NSA program to establish the basis for FISA warrants -- a practice she would not permit. The program was suspended for a time, apparently out of concern that the administration would either have to disclose its existence or mislead a court about the source of information.

The authority that Bush granted the NSA for domestic spying goes well beyond the expanded powers to combat terrorism contained in the USA Patriot Act. This is particularly ironic, given that the main disagreement between Senate and House conferees -- who have been struggling to develop compromise language before the act expires on February 3 -- centers on "provisions that allow FBI agents to obtain records on terrorism suspects, who have very limited options for challenging such searches." (Major provisions of the act were originally scheduled to expire on December 31, but Congress extended them to February 3 to allow time for the House-Senate conference to continue work on a compromise approach to renewing the law. Four Republicans joined most Senate Democrats in opposing the version of the bill that emerged from the conference in December. In late January chief House negotiator, Judiciary Committee Chairman James Sensenbrenner broke off talks.)

Bush has not asked Congress for additional provisions in the Patriot Act, or other laws, to cover the NSA domestic spying, apparently because the administration believes the action is legalized by the president's constitutional powers as commander-in-chief, and the 2001 congressional resolution authorizing "all necessary force" (AUMF) against the Taliban in Afghanistan following the 9/11 attacks. These arguments were summarized in a December 22, 2005 letter from Assistant Attorney General William Moschella to intelligence committee chairs in the Senate and House. Moschella's letter also argued that the limited briefings on the program to congressional leaders constituted adequate notification to Congress.

The Times' sources suggested that the administration may also have been reluctant to seek congressional approval "because the proposal would be certain to face intense opposition on civil liberties grounds."

As reported recently by the Washington Post, legislation "drafted by Justice Department lawyers in 2003 to strengthen the USA Patriot Act would have provided legal backing for several aspects of the administration's warrantless eavesdropping program." Critics have suggested that the draft legislation is inconsistent with administration claims that Bush had legal authority to order warrantless domestic spying without obtaining Congressional approval. Among other provisions, the law would have allowed the president to order wiretaps without court supervision within 15 days of an AUMF. Current provisions allow such action only following a declaration of war.

The draft would also have made it easier for the NSA to obtain lists of calls made or received by US citizens, and would have created a "statutory defense" for agents conducting surveillance at the direction of the president or attorney general, effectively shielding them from prosecution for violating federal law. When the legislation, titled the Domestic Security Enhancement Act of 2003, was leaked to the media in February 2003, the Justice Department dismissed it as an "early draft."

In Re. [deleted]

The Justice Department had provided a glimpse of its views on warrantless surveillance in a supplemental brief to a 2002 appeal of a Foreign Intelligence Surveillance Court (FISC) decision concerning the coordination of law enforcement and counterterrorist operations:

In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.

In its November 2002 appeal decision, the FIS review court sided with the government in loosening strictures on the sharing of intelligence between law enforcement and intelligence agencies. In the process, the court affirmed the government's assertion that "the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." It noted, however, "That is not to say that we should be prepared to jettison Fourth Amendment requirements in the interest of national security."

The nonpartisan Congressional Research Service (CRS) issued a 44-page report on January 6, 2006 rebutting the Moschella letter. "Congress seems clearly to have contemplated that FISA would continue to operate during war," the report noted, although amendments might be necessary. The report rejected the administration's argument that Congress has "accepted by acquiescence the NSA operations here at issue." It acknowledged that the FIS review court's judgment "provide[s] some support for the assertion that the President possesses inherent authority" to conduct warrantless surveillance, but suggested that this does not limit Congress's authority to regulate such activity. In its concluding paragraph the report stated:

... [I]t appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of "electronic surveillance" within the meaning of FISA or any activity regulated under Title III [law enforcement surveillance], Congress intended to cover the entire field with these statutes.

For the president to conduct warrantless searches, amounts to "disabling Congress from acting upon the subject," the report argued, suggesting that it is unconstitutional. Citing the 1972 case United States v United States District Court, the report concluded ".. [T]he Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance...."

On January 9, fourteen constitutional law scholars and former government officials published an open letter, which declared that Moschella failed "to offer a plausible legal defense" for the warrantless eavesdropping. The letter concurred with the CRS report that Congress clearly contemplated that FISA would apply during wartime, and that the 2001 AUMF did not undercut FISA. "If the administration felt that FISA was insufficient," the letter stated, "the proper course was to seek legislative amendment."

Yoo Who?

Former Nixon White House counsel John Dean wrote recently that the administration claim that NSA domestic spying was authorized by the 2001 resolution "borders on the laughable...."

No sane member of Congress believes that the Authorization of Military Force provided such an authorization. No first year law student would mistakenly make such a claim. It is not merely a stretch; it is ludicrous.

The formal legal opinions justifying the NSA domestic spying are classified, but apparently were based on memoranda by John Yoo, a former official in the Justice Department's Office of Legal Counsel (OLC). As reported elsewhere in The Dubya Report Yoo played an important role in drafting the legal opinions used to justify coercive interrogation techniques in Guantanamo Bay, Afghanistan, and Abu Ghraib prison in Iraq. Dean called Yoo "bright, but inexperienced and highly partisan," and characterized his legal thinking as "bordering on fantasy."

Yoo left the Department of Justice in 2003. A critique of his views can be found in in a November 2005 review of Yoo's The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by Georgetown Law professor David Cole, one of the signatories to the January 9 letter. Yoo's opinions, wrote Cole, are "exactly the arguments that the president would have wanted to hear ... that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will." Yoo believes, said Cole, that treaties "cannot be enforced by courts unless Congress enacts additional legislation to implement them.... Congress's foreign affairs authority is largely limited to enacting domestic legislation and appropriating money. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law—constitutional or international."

While many conservatives favor a strong executive, Cole suggested, Yoo's contribution is to reconcile "these modern-day conservative preferences" with the "originalist" theory of constitutional interpretation, which holds that the Constitution must be interpreted within the understandings held by the framers, ratifiers and the public at the time the document was drafted. A key problem with that exercise, said Cole, is that "the framers ... were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced."

The Constitution grants Congress substantial war powers: to raise and regulate the military, to declare war and lesser forms of conflict, to define offenses against the law of nations, and to regulate international commerce. The Senate is empowered to confirm appointments, ambassadors, and treaties, while the president represents the nation in foreign affairs. Cole noted the obvious -- that the Constitution was drafted following a war of rebellion against a prototypical "unaccountable executive." So great was the distrust of executive power that the first attempt at a federal government, the Continental Congress, depended on the states for "virtually all significant functions, including imposing taxes, regulating citizens' behavior, raising an army, and going to war." When that attempt proved unsuccessful the drafters of the Constitution gave more power to Congress and created an executive branch of government. Executive power was strictly limited, however, and powers traditionally associated with an executive, including power to declare war, were assigned to Congress.

At the Constitutional Convention, James Wilson gave voice to the view of many members when he argued that giving Congress power to declare war "will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."

Yoo's view, despite the evidence to the contrary, is that the framers intended to "endow the president with power over foreign affairs virtually identical to that of the king of England, including the power to initiate wars without congressional authorization." Yoo based his conclusion on citations from 18th century dictionaries, which defined "declare" as "to pronounce" not "to commence." Cole countered that "declare war" was a legal term of art, and suggested there is evidence that it referred both to the commencement of hostilities and a statement that war was underway.

Ironically, Cole noted, although Yoo's evidence doesn't effectively challenge the notion that the framers vested in Congress the power to take the nation to war, "[m]odern practice is closer to Yoo's view than to the framers' vision." As the framers anticipated, presidents are much more willing than Congress to involve the nation in war.

Presidents also tend to benefit from war more than members of Congress, by increasing their short-term popularity, by acquiring broader powers over both the civilian economy and the armed forces, and, sometimes, by the historical recognition later accorded them.

Cole agreed with Yoo's observation that, since Harry Truman, presidents have "resisted the view that they need congressional authorization to commit forces to military conflict." After the terrorist attacks of 2001, Yoo wrote "it is all the more essential that the nation be able to act swiftly and without hesitation, even preemptively, to protect itself." Cole characterized Yoo's position as holding that the war on terror does not permit democratic deliberation. These, however, are recent developments. Presidents have generally sought congressional authorization for military action, and, until the Korean War, either acknowledged that such authorization was necessary or provided evidence why a particular action might be an exception. "Thus," wrote Cole, "the view that Yoo promotes as "original" has in fact been advanced only during the last fifty years, and only by self-interested executives."

The two common features of Yoo's thinking, said Cole, are radical departure from the text of the constitution, and eliminating legal constraints on presidential power in foreign affairs. Yoo's justification for the latter is that it preserves presidential "flexibility" in foreign affairs. Yet, suggested Cole, that "flexibility" seems to be "flexibility to involve the nation in war without congressional approval, and to ignore and violate international commitments with impunity." In the context of the "war on terror," the flexibility that Yoo advocates has meant interpreting away any legal limits, or rejecting them outright. Two weeks after the September 11, 2001 attacks, Yoo sent a memo to deputy White House counsel Tim Flanigan, declaring that the president had unilateral authority to use military force against terrorists anywhere in the world, with or without congressional authorization. The government might use

... electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses.... [T]he government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.

Dissenting Opinion

Yoo's legal opinions and the environment that fostered them led to a significant conflict within the administration, as reporting in the February 6 issue of Newsweek revealed. One faction included Vice President Cheney and his counsel (now chief of staff) David Addington; Yoo's controversial legal opinions apparently originated with requests from this quarter, which included Defense Secretary Rumsfeld, and perhaps CIA director Tenet. On the other side were acting attorney general James Comey, and Jack Goldsmith, a law professor who worked in the Pentagon general counsel's office.

Cheney and Addington believed that backlash from Vietnam and Watergate had weakened the executive branch and created a "risk averse" culture in the military and intelligence community. Following 9/11 Addington set about creating legal justification for the CIA in particular to use harsher methods in dealing with terrorists captured on the battlefield. Yoo became Addington's "go-to guy" in the OLC, and readily supplied a series of opinions based on the principle that presidential power in wartime is essentially unrestricted.

Yoo and Addington's most famous product -- at least until recently -- was the so-called "torture memo" of August 2002. The memo was released under the signature of then head of OLC, Jay Bybee, but was drafted by Yoo. The August memo and another drafted in March 2003 claimed legal justification for the president to order severe mistreatment of detainees during interrogation -- and on a large scale, i.e. not just individual cases. At about the time the second memo was released, Bybee left OLC for a federal judgeship. Addington and then-White House Counsel Alberto Gonzales wanted Yoo to head OLC. Apparently piqued that Yoo had provided Addington with an unofficial channel to OLC, Attorney General Ashcroft wouldn't promote Yoo; Yoo subsequently left government and returned to teaching law.

Pentagon counsel Goldsmith's combination of credentials and views seemed to Ashcroft and Addington like a good choice to head OLC. Among other factors, Goldsmith agreed with Yoo that international human rights treaties were not binding on US courts. Apparently, though, Goldsmith's views on executive power were somewhat different from Yoo's, and in December 2003 Goldsmith issued an opinion that Yoo's torture memo was "under review."

In an uncharacteristic gesture in the direction of checks and balances, when it set up the NSA domestic spying program the Bush administration had included a provision that it was to be re-authorized by the Department of Justice every 45 days. The authorization was the responsibility of the OLC, and in March 2004, while John Ashcroft was in the hospital with pancreatitis, Goldsmith, Comey, and Comey's national security aide Patrick Philbin announced that they would not reauthorize the program. Gonzales and Addington visited Ashcroft in the hospital to complain, but Ashcroft supported Comey.

Eventually a compromise was reached. The NSA program was not required to use FISA procedures, but additional constraints were placed on domestic eavesdropping.

In June 2004 Comey, Goldsmith, and Philbin were instrumental in the Justice Department disavowal of the August 2002 torture memo, which initiated what Newsweek termed "fierce behind-the-scenes bureaucratic fight." In December 2004 OLC issued a new memo with a broader definition of torture and limits on presidential authority to order it. By then Goldsmith had left government for a teaching post at Harvard; Philbin was planning to return to the private sector. Comey resigned in the summer of 2005.

Cheney spokesperson Lee Ann McBride told Newsweek, "The proposition of internal division in our fight against terrorism isn't based in fact. This administration is united in its commitment to protect Americans, defeat terrorism and grow democracy."

'Activities Described By the President'

New York first-amendment lawyer Glenn Greenwald has noted that administration officials have used a curious locution when providing assurances that warrantless eavesdropping is limited to "members of Al Qaeda and affiliated groups." The Department of Justice press release concluded with the following statement: "Throughout this document, 'the terrorist surveillance program' and 'the NSA program' refer to the NSA activities described by the President."

In his appearance on CNN's "Larry King Live" Attorney General Alberto Gonzales used a similar formulation. "... [A]s the president indicated, and I'm only talking about what the president described to the American people in his radio address, we're talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda." Greenwald raises the obvious question as to "whether there are warrantless eavesdropping programs aimed at Americans other than the 'program described by the President'."

Jason Leopold, former Dow Jones Newswire Los Angeles Bureau Chief and now an investigative reporter for Truthout.org, wrote in January that the NSA had monitored phone calls and emails of US citizens prior to Bush's 2002 authorization, and before September 2001. According to Leopold, a transition document prepared for the incoming Bush administration warned that international communications of American citizens could be subject to surveillance while NSA computers searched for keywords in an attempt to identify terrorists. Protocol dictated, however, that once a party to a communication was found to be a citizen, his or her identity was to be deleted from surveillance records, or "minimized."

In the summer of 2001, after Vice President Cheney had visited the NSA, the CIA and the Defense Intelligence agency, the NSA began receiving administration requests to reveal the identities of "minimized" individuals, Leopold reports. A former counterterrorism official told Leopold, "What's really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department. There was a real feeling of paranoia that permeated from the vice president's office and I don't think it had anything to do with the threat of terrorism. I can't say what was contained in those taps that piqued his interest. I just don't know."

"We weren't targeting specific people, which is what the President's executive order does," a former NSA official told Leopold. "However, we did keep tabs on some Americans we caught if there was an interest" from members of the administration. "That's not legal. And I am very upset that I played a part in it."

One person with "an interest" was apparently John Bolton, now US ambassador to the UN. During his confirmation hearings Bolton told members of the Senate that he had requested that names be identified in NSA intercepts on a "handful" of occasions. In May 2005 Newsweek reported that the State Department admitted Bolton had made 10 such requests since 2001, and that the department as a whole had made 400 requests. According to Newsweek, however, the NSA may have been disclosed as many as 10,000 names of US, British, Canadian and Australian citizens to intelligence agencies, law-enforcement agencies, and policymaking officials.

Bolton's chief of staff, Frederick Fleitz, a former CIA official, testified during Bolton's confirmation hearings that, in one instance, a "minimized" name that Bolton requested be identified turned out to be another state department official. When the official's name was revealed, Bolton congratulated him, which violated NSA regulations prohibiting discussion of classified wiretap information. In a letter to outgoing NSA director Hayden, Sen. Jay Rockefeller, vice chair of the Senate intelligence committee wrote:

I have confirmed with the NSA that the phrase 'no further action' includes sharing the requested identity of U.S. persons with any individual not authorized by the NSA to receive the identity.

In addition to being troubled that Mr. Bolton may have shared U.S. person identity information without required NSA approval, I am concerned that the reason for sharing the information was not in keeping with Mr. Bolton's requested justification for the identity in the first place. The identity information was provided to Mr. Bolton based on the stated reason that he needed to know the identity in order to better under the foreign intelligence contained in the NSA report.

Responding to Bolton's cavalier use of supposedly classified NSA data, author Patrick Radden Keefe wrote in an August 2005 NY Times op-ed piece

The revelations amount to a reversal of what intelligence officials have been claiming for 30 years. Heads of the NSA are famous for saying very little about what the agency does, but the one thing that its various directors, under both Republican and Democratic administrations, have said repeatedly is that they do not eavesdrop on American citizens.

We now know that this hasn't been the case - the agency has been listening to Americans' phone calls, just not reporting any names. And Bolton's experience makes clear that keeping those names confidential was a formality that high-ranking officials could overcome by picking up the phone.

The NSA also eavesdropped on home and office telephones and email of UN delegations in early 2003, apparently as part of the effort to win votes favoring the war in Iraq. While it is generally suspected that the activities of UN delegates are monitored by US intelligence agencies, a memo leaked to The Observer (UK) suggested that the NSA was "mounting a surge" aimed at learning how Security Council members would vote on a second Iraq resolution, but also "policies," "negotiating positions," "alliances" and "dependencies" - the "whole gamut of information that could give US policymakers an edge in obtaining results favorable to US goals or to head off surprises." The Observer noted:

While many diplomats at the UN assume they are being bugged, the memo reveals for the first time the scope and scale of US communications intercepts targeted against the New York-based missions.

The disclosure comes at a time when diplomats from the countries have been complaining about the outright 'hostility' of US tactics in recent days to persuade then to fall in line, including threats to economic and aid packages.

Despite administration assurances that the NSA's warrantless domestic spying is targeted only at international communications, and individuals with suspected terrorist connections, officials conceded to the NY Times that purely domestic communications have been monitored, as well. Telecommunications experts suggested that, for technical reasons, it may not always be possible to determine whether a phone call is domestic or international. While such calls are believed to represent a small fraction of communications monitored under the domestic spying program, their existence contradicts assurances from former NSA director Hayden, and Attorney General Alberto R. Gonzales that the program applied only to international communications.

As the January 9 open letter put it, "a US citizen living here who received a phone call from another US citizen who attends a mosque that the administration believes is 'supportive' of al-Qaeda could be wiretapped without a warrant."

The NY Times exposé of the NSA program, and related revelations, have raised concerns that federal agencies are targeting groups and individuals who dissent from administration policies.

James Bovard noted recently in the LA Times that it took very little for a Muslim or Arab immigrant to be considered a terrorist in the round-up of 1,200 people shortly after 9/11. Arab students were arrested for working in pizza parlors in violation of their student visas. A Pakistani immigrant in Queens, NY was jailed because he dried his laundry on the fence and his lawn needed mowing. Newsweek columnist Steven Brill reported that FBI agents were instructed to look through phone books for Arab-sounding names.

A May 2003 Department of Homeland Security (DHS) memo to 18,000 state and local police departments, made public in 2004, advised them to treat critics of the Iraq war as potential terrorists, Bovard wrote. Since December 2005, Transportation Security Administration (TSA) officials have been looking for potential terrorists among airline passengers who exhibit "involuntary physical and psychological reactions," such as being stressed or frightened.

In September 2005, Veterans Administration (VA) clinical nurse Laura Berg, wrote a letter to the Alibi, an Albuquerque, in which she criticized the Bush administration's handling of Hurricane Katrina relief efforts, and the Iraq war. Berg urged citizens to to "act forcefully" to remove an administration characterized by "vicious deceit."

Later that month, VA Information Security employees seized Berg’s office computer, claiming that "government equipment was used inappropriately…during government time for drafting an editorial letter." Mel Hooker, Chief of Human Resource Management Service at the VA, responded in a memo on November 9 to Berg's complaints about the seizure. Hooker admitted that no evidence had been uncovered that Berg used her office computer to write the letter in question, but justified the VA investigation by asserting that "the Agency is bound by law to investigate and pursue any act which potentially represents sedition." ACLU of New Mexico has demanded an explanation.

"The reference to 'sedition' is shocking,"ACLU of New Mexico Executive Director Peter Simonson said in a January press release. "Even if Laura had used the office computer it would change nothing. None of her actions -- her criticism of the government, or her appeal for a change in the heads of government -- approach an act of unlawful insurrection. Is this government so jealous of its power, so fearful of dissent, that it needs to threaten people who openly oppose its policies with charges of 'sedition'?"

NBC news reported on December 14, 2005 that a Pentagon counterterrorism database was found to contain "dozens of alerts on antiwar meetings and peaceful protests," although analysts had determined that the events did not constitute a security threat. Pentagon policy requires that such information be deleted 90 days after such a determination is made. The Threat and Local Observation Notice (TALON) program was created in 2003 to centralize information about threats to military bases and personnel. Apparently responding to the NBC report, Undersecretary of Defense for Intelligence Stephen A. Cambone ordered a review of the program's data retention policies.

On December 20, the NY Times reported that documents released in response to a Freedom of Information Act (FOIA) lawsuit by the American Civil Liberties Union (ACLU) showed that the FBI had conducted "numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief...." One document indicated that a "Vegan Community Project" in Indianapolis was under surveillance. Another described the Catholic Worker movement's "semi-communistic ideology" (The Catholic Worker movement promotes social causes and works against poverty.) A third document noted interest in a demonstration against the use of llama fur by People for the Ethical Treatment of Animals (PETA).

The documents revealed that in the case of PETA, Greenpeace, and other organizations, the FBI used "employees, interns, and other confidential informants" to monitor the groups and develop leads on potential criminal activity. The FBI also investigated financial ties between Greenpeace and militant groups such as "the Earth Liberation Front (ELF) and the Animal Liberation Front (ALF)." In previous Congressional testimony the FBI described the latter two groups as "extremist special interest groups." PETA and Greenpeace, however, questioned the characterization of their activities as "terrorism," and the diversion of counterterrorism resources from more serious investigations.

While ELF and ALF activities may be criminal, they are aimed at property; one of the groups' strategies is to try to increase the cost of doing business to the point that companies discontinue activities that the groups oppose. The term "eco-terrorist," which is sometimes applied to ELF and ALF, is promoted by industry-backed advocacy groups such as the Center for the Defense of Free Enterprise and Center for Consumer Freedom. The latter group, funded by restaurant, alcohol and tobacco interests, has urged FBI investigation of ELF, ALF, and more mainstream organizations such as the Humane Society and PETA. David Martosko, research director of the Center for Consumer Freedom, testified at a Senate hearing in 2005, "The threat from domestic terrorism motivated by environmental and animal rights ideologies is undocumented, unambiguous and growing." The group also lobbies against healthy-eating and anti-smoking campaigns.

The American Legislative Exchange Council (ALEC), a conservative lobbying group backed by more than 300 corporations, joined with the US Sportsmen's Alliance (an advocacy group for hunters, fishers, and trappers) in drafting the Animal and Ecological Terrorism Act. If passed, the law would consider trespassing or destruction of property domestic terrorism, if carried out by wildlife rights activists. In 2003 Representative Chris Chocola, Republican of Ohio, introduced the introduced the Stop Terrorism of Property Act in Congress, but the bill died in committee. Larry Frankel of the American Civil Liberties Union has observed that the proposed statute criminalizes a particular political view. For instance, people blockading a road to prevent logging could be prosecuted as eco-terrorists, while someone who trashed the offices of a law firm working on an injunction to prevent logging could not.

"It's clear that this administration has engaged every possible agency, from the Pentagon to NSA to the FBI, to engage in spying on Americans," Ann Beeson, associate legal director for the ACLU, said. "You look at these documents, and you think, wow, we have really returned to the days of J. Edgar Hoover, when you see in FBI files that they're talking about a group like the Catholic Workers league as having a communist ideology."

On January 5 the Dow Jones News reported that the IRS had been collecting taxpayers' political party affiliation in 20 states. Colleen Kelly, president of the National Treasury Employees Union brought the matter to the attention of Senator Patty Murray of Washington, the senior Democrat on the Appropriations Committee, which oversees the IRS. An IRS spokesman responding to Kelly's concerns in a December 21 letter said that the agency did not use the information. Not satisfied, Murray wrote IRS Commissioner Mark Everson that "No employee or contractors of the IRS should have access to this sensitive information," and demanded that the practice be discontinued. Deputy Commissioner John Dalrymple responded that the information was included in a database that the IRS obtained from an outside contractor. According to Dow Jones, the contractor was the Accurint public records service, a LexisNexis product. Accurint had agreed to filter the party affiliation data in the future, Everson said. It is unclear for how long the IRS was obtaining party affiliation data.

The Austin-American Statesman reported on January 7 that CNN was "'looking into' whether its chief international correspondent, Christiane Amanpour, has been targeted by the Bush administration's domestic spying program...." In an interview aired on January 3 on NBC Nightly News, correspondent Andrea Mitchell asked NY Times's James Risen if he had information suggesting that the NSA had spied on Amanpour. Risen said that he had no such information. Inexplicably the exchange was removed from the transcript of the broadcast posted on the MSNBC web site. Amanpour's reports from Iraq and elsewhere have from time to time revealed information that the Bush administration has sought to downplay; she is also married to James Rubin, who was served in the State Department during the Clinton administration and was a member of the Kerry campaign foreign policy team.

Meanwhile, on January 24, the Denver Post reported that the NSA would be moving some operations to the Denver area. The Washington Post's William Arkin noted that Denver suburb Aurora is already the home of the Aerospace Data Facility at Buckley Airforce Base, a satellite downlink and domestic warning facility. US Northern Command, responsible for homeland air defense, is 70 miles away. The NSA move follows a May 2005 announcement that the CIA's National Resources Division would relocate domestic operations to Aurora. The main function of the National Resources Division until now has been to debrief ordinary citizens who travel overseas, and to recruit foreign students and diplomats to become CIA "assets" when they return home. The May announcement coincided with an agreement between the agency and the FBI concerning coordination of operations and debriefings. "Colorado is now the American epicenter for national domestic spying," Arkin wrote.

'Startlingly Nixonian'

In 2002 John Dean wrote an open letter to Karl Rove in which he warned "the continuing insistence on secrecy by your White House is startlingly Nixonian. I'm talking about everything from stiffing Congressional requests from information and witnesses, to employing an executive order to demolish the 1978 law providing public access to presidential papers, to forcing the Government Accounting Office to go to Court to obtain information about how the White House is spending tax money when creating a pro-energy industry Vice Presidential task force." Warrantless wiretapping, he added recently, continues the "disturbing parallels." "There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons." In fact, Bush may have outdone Nixon, Dean suggested: "Nixon's illegal surveillance was limited; Bush's, it is developing, may be extraordinarily broad in scope."

The darkest irony may be that, while the war in Iraq is creating terrorists rather than combating terrorism, Bush's surveillance at home is likely to be singularly ineffective in apprehending them. A terrorist communicating using even a simple code that the NSA doesn't recognize can avoid detection regardless of the computing power and hardware directed at him.

Moreover, of the thousands of tips a month sent from the NSA to the FBI in the search for terrorists, "virtually all of them ... led to dead ends or innocent Americans," according to "[m]ore than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret eavesdropping program and how it played out at the FBI." The "program was viewed with skepticism by key figures at the Federal Bureau of Investigation," the agency that would be responsible for domestic terrorism investigations.

Officials acknowledged that NSA tips may have played a role in the arrest of individuals in Portland and Minneapolis charged with supporting terrorism, money laundering, and conspiracy. The persons in question may have been involved in recruiting or training operations. NSA information also helped a counterterrorism sting operation that resulted in the arrest in Albany, NY of Yassin Aref and Mohammed Hossain for attempting to sell a missile launcher to an undercover informant. Other officials take issue, however, with administration claims that domestic spying helped apprehend Iyman Faris, an Ohio truck driver who had discussed trying to destroy the Brooklyn Bridge with a blowtorch. Officials also dispute administration assertions that the NSA program contributed to the foiling of a plot to detonate fertilizer bombs in London in 2004.

Homeland Security Secretary Michael Chertoff, has admitted that he cannot be sure that the NSA program is a deterrent to terrorism. "I don't know that it's ever possible to attribute one strand of intelligence from a particular program."

With a Republican controlled Congress and polls showing a majority of American's would give up some civil liberties to prevent a terrorist attack, John Dean asked, why wouldn't Bush simply ask Congress for the authority he thought he needed? Dean's answer was that Dick Cheney never recovered from his stint as Gerald Ford's chief of staff when Congress put limits on presidential authority. Cheney wanted to make the point, Dean suggested, that the president could ignore Congress, and Bush, as with all of Cheney's quests, went along.

There may, however, be another reason, at once simpler and more sinister. George Lakoff in his writings about the worldviews of liberals and conservatives has suggested that in the conservative moral system, the system itself is right and good. "Opponents of the moral system itself are therefore wrong; and if they try to overthrow the moral system, they will be engaging in a moral act. The moral system itself must be defended above all." "You're either with us or against us in the fight against terror," Bush famously declared at his November 6, 2001 news conference with Jacques Chirac. It is not inconceivable that in the minds of George W. Bush and Dick Cheney, as perhaps in the mind of Richard Nixon, political opponents are not easily distinguished from threats to the nation.

In 1974 when the Nixon impeachment hearings took place, Arlen Specter was Philadelphia District Attorney. Nixon had at one time considered appointing him to the Supreme Court. When the Senate Judiciary Committee hearings on the NSA's surveillance commenced on February 6 it was Specter who presided.


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