"Now, it appears
Congress is finally acting — not to end alleged criminal acts by the
administration, mind you, but to stop the public from learning about
such alleged crimes in the future. Members are seeking to give the
president the authority to continue to engage in warrantless domestic
surveillance as they call for whistle-blowers to be routed out. They
also want new penalties to deter both reporters and their sources.
"The debate has taken on a hopeful Zen-like quality for besieged
politicians: If a crime occurs and no one is around to reveal it or to
report it, does it really exist?
"The plain fact is that neither party wants to acknowledge that the
president might have ordered the commission of federal crimes in the
name of national security. Thus, while there have been calls for
another feeble hearing (possibly with telecom executives), Congress
would prefer to investigate steroids in baseball and the selling of
horses to France for gourmet dinners. ”
Jonathan Turley
George Washington University Law Professor
USA Today Board of Contributors
"Down To The Fourth Estate"
USA Today Op Ed,
March 17, 2006
|
Introduction
Ever since the New York Times reported in
December 2005 that the NSA was conducting domesting wiretaps without
warrants or full and complete Congressional oversight, Americans have
enjoyed (is such a word can be employed here) the spectacle of an
administration insisting on absolute, unchecked power and a Congress
squirming under the heat. From Senator Frist's threatened restructuring
of the oversight of the intelligence committee to Senator
Specter's refusal to take sworn tesitmony from Attorney General
Gonzales to the NSA muzzling
further testimony from Russel Tice1 to Representative Nancy Pilosi's
promise that a Democratic Party in control of the House would not
impeach Bush - it becomes increasingly clear that Congress will not act
to protect either the civil liberties guaranteed under the Bill of
Right, it's duties assigned by the Constitution, or the Rule of Law
itself.
1 From http://www.afterdowningstreet.org/node/10411
"The NSA denies that it practices retaliation against whistleblowers.
Yet, Tice is still being monitored by the agency. In a January 9 letter
to Tice, Renee Seymour, Director of NSA Special Access Programs Central
Office, reminded him that he was required to report problems to
“appropriately cleared individuals” at the NSA or Department of Defense
before talking to any congressional committees—and reinforced that no
one in either the House or the Senate Intelligence Committees was
cleared to receive the information he wished to divulge." [emphasis added -dcm].
Thus says the NSA to the American People, "We can not
allow your elected representatives to excercise any oversight, because
we can't trust them. Sorry, citizens. You are no
longer entitled to rule of law, due process, or knowledge of what those
who would rule You are up to.with our national treasury. The
NSA, as Bush and Cheney's enforcer, considers self government a
credible threat to national security.
Indeed, the histrionics of both parties in this matter of warrantless
NSA wiretaps and data mining, and the infiltration of peaceful groups
have evoked interpretations of the Constitution and procedural
legislative oversight pretzel logic that would make even a
contortionist blush, shake his head, and back away.
 Then came May
10, 2006. USA Today revealed another part of the puzzle
- A massive database the NSA has assembled of all telephone calls made
by anyone in the United States. Verizon,
AT&T, and BellSouth did not dispute the story at first.
Then, one by one, came out and denied giving, or selling, their
domestic calls database (time, date, duration, source and target number
called information) to the NSA. Only
Qwest resisted turning
over records without a FISA court order or letter from the Attorney
General, which the NSA - and therefore the President - refused to seek.
In this document You will find a small collection of USA TODAY
reporting, editorial, and Op Ed pieces about the major Telecoms giving
their caller data to the NSA. All of the stories You would have
seen on those pages of the print edition of USA Today on May 11, 2006
are here. And editorial and Op Ed articles from the print edition
of USA Today on May 17 and 18, 2006 are here also. (Confirmation
hearings started May 18, 2006 to consider NSA Chief General
Michael Hayden's nomination to head the Central Intelligence Agency.
Finally, I have written this introduction, and a
short editorial
opinion as an afterword..
Risks of
Reporting on the Secret Government
Reporting on this issue is not without consequences for those
journalists and investigators working to bring details of our secret
government's abuses of power under the color of national security to
the attention of the public. This article, and this site itself,
is intended as a resource for Citizens, historians, journalists, and
attorneys interested in this issue - a tool to help them do their jobs
of litigation, research, writing, and excercising an intelligent and
informed participation in our civil society. But there are
consequences, personally, for those doing such reporting.
 The personal consequences I am experiencing
have ranged from sabotage of my automobile, to email impersonations of
me, to threatening and obscene notes left on the cars of myself and
friends, to threatening emails to my employer from a possibly spoofed
email address. These actions have
been reported to the local police, the FBI New Haven office, and to the
two major email providers involved, one of whose email / spam blocking
utilities seems not to work to block emails from the offending
account.
It is starting to appear that some ip - spoofing might
be involved, and trojan programs as well - designed to make it appear
the offending online activity comes from my computer or account.
This is currently under investigation, based on complaints I filed last
year, this year, and complaints my employer has filed recently. I hope
we
can determine the true source of such malicious activity directed
against me, my friends, and my employers.
The overall pattern of this malicious activity belies any simple
explanation of a random or individual stalker. Actions thus far
indicate powerful tools, knowledge of private conversations in the
privacy of homes, and intimate knowledge of details of personal lives
and schedules unavailable to even a dedicated individual stalker.
Outside assistance is indicated, from extraordinarily well equipped and
funded sources, based on the pattern of events and actions to
date. It is a prime objective of the secret state to discredit
those who would expose their illegal and extra - constitutional
activities.
But, as I documented in BIG BROTHER IS WATCHING YOU
and Personal Account
- Earth: Blogging and The Emergence of DotCommunism, it is unlikely
that those whom I suspect are the true source of these unlawful acts
will be uncovered because they are likely federal subcontractors acting
under the color, and cover, of "national security," in a decades long
program codenamed MUSIC
which includes just such acts of political, economic, and social
warfare against selected ciiizens, and includes domestic political
assassination, such as in the cases of Gary Webb and Steve
Kangas.
Absent the tools to compel legal discovery from national
security proprietaries and contractors (or the Defense Department
itself), or the financial resources to
pursue such avenues, I am effectively helpless to prove these
suspicions. As You would be. I can only hope law enforcement will
do their jobs to put an end to this stalking campaign against me and my
associates, the current phase of which has gone on for some time.
However, there is cyberspace. Shortly I may put out a blog, or
article, with the evidence I have so far collected, along with a
catalog and description of the tactics I have witnessed to limit my
degrees of freedom to work. Until then,
here is a photograph of the hole someone has drilled in my gas tank
fill pipe, which I discovered on May 5, 2006.
- David C.
Manchester
May 18, 2006
USA
Today Articles
USAToday.com
|
NSA has massive
database of Americans' phone calls
3 Telecoms help
government collect billions of domestic records;
One Telecom, Qwest, Declines Citing No Due Process, Faces NSA Pressure
By Leslie Cauley, USA
TODAY
Contributing: John Diamond
Updated: 10:38 AM ET
May 11, 2006
|
The National
Security Agency has been secretly collecting the phone
call records of tens of millions of Americans, using data provided by
AT&T, Verizon and BellSouth, people with direct knowledge of the
arrangement told USA TODAY.
The NSA program reaches into homes and businesses across the nation by
amassing information about the calls of ordinary Americans — most of
whom aren't suspected of any crime. This program does not involve the
NSA listening to or recording conversations. But the spy agency is
using the data to analyze calling patterns in an effort to detect
terrorist activity, sources said in separate interviews.
QUESTIONS AND
ANSWERS: The NSA record collection program
"It's the largest database ever assembled in the world," said one
person, who, like the others who agreed to talk about the NSA's
activities, declined to be identified by name or affiliation. The
agency's goal is "to create a database of every call ever made" within
the nation's borders, this person added.
For the customers of these companies, it means that the government has
detailed records of calls they made — across town or across the country
— to family members, co-workers, business contacts and others.
The three telecommunications companies are working under contract with
the NSA, which launched the program in 2001 shortly after the Sept. 11
terrorist attacks, the sources said. The program is aimed at
identifying and tracking suspected terrorists, they said.
The sources would talk only under a guarantee of anonymity because the
NSA program is secret.
Air Force Gen. Michael Hayden, nominated Monday by President Bush to
become the director of the CIA, headed the NSA from March 1999 to April
2005. In that post, Hayden would have overseen the agency's domestic
call-tracking program. Hayden declined to comment about the program.
The NSA's domestic program, as described by sources, is far more
expansive than what the White House has acknowledged. Last year, Bush
said he had authorized the NSA to eavesdrop — without warrants — on
international calls and international e-mails of people suspected of
having links to terrorists when one party to the communication is in
the USA. Warrants have also not been used in the NSA's efforts to
create a national call database.
In defending the previously disclosed program, Bush insisted that the
NSA was focused exclusively on international calls. "In other words,"
Bush explained, "one end of the communication must be outside the
United States."
As a result, domestic call records — those of calls that originate and
terminate within U.S. borders — were believed to be private.
Sources, however, say that is not the case. With access to records of
billions of domestic calls, the NSA has gained a secret window into the
communications habits of millions of Americans. Customers' names,
street addresses and other personal information are not being handed
over as part of NSA's domestic program, the sources said. But the phone
numbers the NSA collects can easily be cross-checked with other
databases to obtain that information.
Don Weber, a senior spokesman for the NSA, declined to discuss the
agency's operations. "Given the nature of the work we do, it would be
irresponsible to comment on actual or alleged operational issues;
therefore, we have no information to provide," he said. "However, it is
important to note that NSA takes its legal responsibilities seriously
and operates within the law."
The White House would not discuss the domestic call-tracking program.
"There is no domestic surveillance without court approval," said Dana
Perino, deputy press secretary, referring to actual eavesdropping.
She added that all national intelligence activities undertaken by the
federal government "are lawful, necessary and required for the pursuit
of al-Qaeda and affiliated terrorists." All government-sponsored
intelligence activities "are carefully reviewed and monitored," Perino
said. She also noted that "all appropriate members of Congress have
been briefed on the intelligence efforts of the United States."
The government is collecting "external" data on domestic phone calls
but is not intercepting "internals," a term for the actual content of
the communication, according to a U.S. intelligence official familiar
with the program. This kind of data collection from phone companies is
not uncommon; it's been done before, though never on this large a
scale, the official said. The data are used for "social network
analysis," the official said, meaning to study how terrorist networks
contact each other and how they are tied together.
Carriers uniquely
positioned
AT&T recently merged with SBC and kept the AT&T name. Verizon,
BellSouth and AT&T are the nation's three biggest
telecommunications companies; they provide local and wireless phone
service to more than 200 million customers.
The three carriers control vast networks with the latest communications
technologies. They provide an array of services: local and
long-distance calling, wireless and high-speed broadband, including
video. Their direct access to millions of homes and businesses has them
uniquely positioned to help the government keep tabs on the calling
habits of Americans.
Among the big telecommunications companies, only Qwest has refused to
help the NSA, the sources said. According to multiple sources, Qwest
declined to participate because it was uneasy about the legal
implications of handing over customer information to the government
without warrants.
Qwest's refusal to participate has left the NSA with a hole in its
database. Based in Denver, Qwest provides local phone service to 14
million customers in 14 states in the West and Northwest. But AT&T
and Verizon also provide some services — primarily long-distance and
wireless — to people who live in Qwest's region. Therefore, they can
provide the NSA with at least some access in that area.
Created by President Truman in 1952, during the Korean War, the NSA is
charged with protecting the United States from foreign security
threats. The agency was considered so secret that for years the
government refused to even confirm its existence. Government insiders
used to joke that NSA stood for "No Such Agency."
In 1975, a congressional investigation revealed that the NSA had been
intercepting, without warrants, international communications for more
than 20 years at the behest of the CIA and other agencies. The spy
campaign, code-named "Shamrock," led to the Foreign Intelligence
Surveillance Act (FISA), which was designed to protect Americans from
illegal eavesdropping.
Enacted in 1978, FISA lays out procedures that the U.S. government must
follow to conduct electronic surveillance and physical searches of
people believed to be engaged in espionage or international terrorism
against the United States. A special court, which has 11 members, is
responsible for adjudicating requests under FISA.
Over the years, NSA code-cracking techniques have continued to improve
along with technology. The agency today is considered expert in the
practice of "data mining" — sifting through reams of information in
search of patterns. Data mining is just one of many tools NSA analysts
and mathematicians use to crack codes and track international
communications.
Paul Butler, a former U.S. prosecutor who specialized in terrorism
crimes, said FISA approval generally isn't necessary for government
data-mining operations. "FISA does not prohibit the government from
doing data mining," said Butler, now a partner with the law firm Akin
Gump Strauss Hauer & Feld in Washington, D.C.
The caveat, he said, is that "personal identifiers" — such as names,
Social Security numbers and street addresses — can't be included as
part of the search. "That requires an additional level of probable
cause," he said.
The usefulness of the NSA's domestic phone-call database as a
counterterrorism tool is unclear. Also unclear is whether the database
has been used for other purposes.
The NSA's domestic program raises legal questions. Historically,
AT&T and the regional phone companies have required law enforcement
agencies to present a court order before they would even consider
turning over a customer's calling data. Part of that owed to the
personality of the old Bell Telephone System, out of which those
companies grew.
Ma Bell's bedrock principle — protection of the customer — guided the
company for decades, said Gene Kimmelman, senior public policy director
of Consumers Union. "No court order, no customer information — period.
That's how it was for decades," he said.
The concern for the customer was also based on law: Under Section 222
of the Communications Act, first passed in 1934, telephone companies
are prohibited from giving out information regarding their customers'
calling habits: whom a person calls, how often and what routes those
calls take to reach their final destination. Inbound calls, as well as
wireless calls, also are covered.
The financial penalties for violating Section 222, one of many privacy
reinforcements that have been added to the law over the years, can be
stiff. The Federal Communications Commission, the nation's top
telecommunications regulatory agency, can levy fines of up to $130,000
per day per violation, with a cap of $1.325 million per violation. The
FCC has no hard definition of "violation." In practice, that means a
single "violation" could cover one customer or 1 million.
In the case of the NSA's international call-tracking program, Bush
signed an executive order allowing the NSA to engage in eavesdropping
without a warrant. The president and his representatives have since
argued that an executive order was sufficient for the agency to
proceed. Some civil liberties groups, including the American Civil
Liberties Union, disagree.
Companies approached
The NSA's domestic program began soon after the Sept. 11 attacks,
according to the sources. Right around that time, they said, NSA
representatives approached the nation's biggest telecommunications
companies. The agency made an urgent pitch: National security is at
risk, and we need your help to protect the country from attacks.
The agency told the companies that it wanted them to turn over their
"call-detail records," a complete listing of the calling histories of
their millions of customers. In addition, the NSA wanted the carriers
to provide updates, which would enable the agency to keep tabs on the
nation's calling habits.
The sources said the NSA made clear that it was willing to pay for the
cooperation. AT&T, which at the time was headed by C. Michael
Armstrong, agreed to help the NSA. So did BellSouth, headed by F. Duane
Ackerman; SBC, headed by Ed Whitacre; and Verizon, headed by Ivan
Seidenberg.
With that, the NSA's domestic program began in earnest.
AT&T, when asked about the program, replied with a comment prepared
for USA TODAY: "We do not comment on matters of national security,
except to say that we only assist law enforcement and government
agencies charged with protecting national security in strict accordance
with the law."
In another prepared comment, BellSouth said: "BellSouth does not
provide any confidential customer information to the NSA or any
governmental agency without proper legal authority."
Verizon, the USA's No. 2 telecommunications company behind AT&T,
gave this statement: "We do not comment on national security matters,
we act in full compliance with the law and we are committed to
safeguarding our customers' privacy."
Qwest spokesman Robert Charlton said: "We can't talk about this. It's a
classified situation."
In December, The New York Times revealed that Bush had authorized the
NSA to wiretap, without warrants, international phone calls and e-mails
that travel to or from the USA. The following month, the Electronic
Frontier Foundation, a civil liberties group, filed a class-action
lawsuit against AT&T. The lawsuit accuses the company of helping
the NSA spy on U.S. phone customers.
Last month, U.S. Attorney General Alberto Gonzales alluded to that
possibility. Appearing at a House Judiciary Committee hearing, Gonzales
was asked whether he thought the White House has the legal authority to
monitor domestic traffic without a warrant. Gonzales' reply: "I
wouldn't rule it out." His comment marked the first time a Bush
appointee publicly asserted that the White House might have that
authority.
Similarities in
programs
The domestic and international call-tracking programs have things in
common, according to the sources. Both are being conducted without
warrants and without the approval of the FISA court. The Bush
administration has argued that FISA's procedures are too slow in some
cases. Officials, including Gonzales, also make the case that the USA
Patriot Act gives them broad authority to protect the safety of the
nation's citizens.
The chairman of the Senate Intelligence Committee, Sen. Pat Roberts,
R-Kan., would not confirm the existence of the program. In a statement,
he said, "I can say generally, however, that our subcommittee has been
fully briefed on all aspects of the Terrorist Surveillance Program. ...
I remain convinced that the program authorized by the president is
lawful and absolutely necessary to protect this nation from future
attacks."
The chairman of the House Intelligence Committee, Rep. Pete Hoekstra,
R-Mich., declined to comment.
One company differs
One major telecommunications company declined to participate in the
program: Qwest.
According to sources familiar with the events, Qwest's CEO at the time,
Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest
didn't need a court order — or approval under FISA — to proceed. Adding
to the tension, Qwest was unclear about who, exactly, would have access
to its customers' information and how that information might be used.
Financial implications were also a concern, the sources said. Carriers
that illegally divulge calling information can be subjected to heavy
fines. The NSA was asking Qwest to turn over millions of records. The
fines, in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI,
CIA and DEA, also might have access to the database, the sources said.
As a matter of practice, the NSA regularly shares its information —
known as "product" in intelligence circles — with other intelligence
groups. Even so, Qwest's lawyers were troubled by the expansiveness of
the NSA request, the sources said.
The NSA, which needed Qwest's participation to completely cover the
country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told
Qwest that it was the lone holdout among the big telecommunications
companies. It also tried appealing to Qwest's patriotic side: In one
meeting, an NSA representative suggested that Qwest's refusal to
contribute to the database could compromise national security, one
person recalled.
In addition, the agency suggested that Qwest's foot-dragging might
affect its ability to get future classified work with the government.
Like other big telecommunications companies, Qwest already had
classified contracts and hoped to get more.
"Unable to
get comfortable with what NSA was proposing, Qwest's lawyers asked NSA
to take its proposal to the FISA court. According to the sources, the
agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers. "They told
(Qwest) they didn't want to do that because FISA might not agree with
them," one person recalled. For similar reasons, this person said, NSA
rejected Qwest's suggestion of getting a letter of authorization from
the U.S. attorney general's office."
|
Unable to get comfortable with what NSA was proposing, Qwest's lawyers
asked NSA to take its proposal to the FISA court. According to the
sources, the agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers. "They told
(Qwest) they didn't want to do that because FISA might not agree with
them," one person recalled. For similar reasons, this person said, NSA
rejected Qwest's suggestion of getting a letter of authorization from
the U.S. attorney general's office. A second person confirmed this
version of events.
In June 2002, Nacchio resigned amid allegations that he had misled
investors about Qwest's financial health. But Qwest's legal questions
about the NSA request remained.
Unable to reach agreement, Nacchio's successor, Richard Notebaert,
finally pulled the plug on the NSA talks in late 2004, the sources said.
Contributing: John Diamond
Find this article at:
http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm
|
|
USAToday.com
|
Questions and answers
about
the NSA phone record collection program
Data Cover Billions of
Phone Calls
By
Leslie Cauley, USA TODAY
Updated:
12:31 AM ET May 11, 2006
|
The National
Security Agency has been collecting domestic calling
records from major telecommunications companies, sources told USA
TODAY. Answers to some questions about the program, as described by
those sources:
Q: Does the NSA's
domestic program mean that my calling records have
been secretly collected?
A: In all
likelihood, yes. The NSA collected the records of billions of
domestic calls. Those include calls from home phones and wireless
phones.
Q: Does that mean
people listened to my conversations?
A: Eavesdropping is
not part of this program.
Q: What was the NSA
doing?
A: The NSA
collected "call-detail" records. That's telephone industry
lingo for the numbers being dialed. Phone customers' names, addresses
and other personal information are not being collected as part of this
program. The agency, however, has the means to assemble that sort of
information, if it so chooses.
Q: When did this
start?
A: After the Sept.
11 attacks.
Q: Can I find out
if my call records were collected?
A: No. The NSA's
work is secret, and the agency won't publicly discuss
its operations.
Q: Why did they do
this?
A: The agency won't
say officially. But sources say it was a way to
identify, and monitor, people suspected of terrorist activities.
Q: But I'm not
calling terrorists. Why do they need my calls?
A: By
cross-checking a vast database of phone calling records, NSA
experts can try to pick out patterns that help identify people involved
in terrorism.
Q: How is this
different from the other NSA programs?
A: NSA programs
have historically focused on international
communications. In December, The New York Times disclosed that
President Bush had authorized the NSA to eavesdrop — without warrants —
on international phone calls to and from the USA. The call-collecting
program is focused on domestic calls, those that originate and
terminate within U.S. borders.
Q: Is this legal?
A: That will be a
matter of debate. In the past, law enforcement
officials had to obtain a court warrant before getting calling records.
Telecommunications law assesses hefty fines on phone companies that
violate customer privacy by divulging such records without warrants.
But in discussing the eavesdropping program last December, Bush said he
has the authority to order the NSA to get information without court
warrants.
Q: Who has access
to my records?
A: Unclear. The NSA
routinely provides its analysis and other
cryptological work to the Pentagon and other government agencies.
Contributing:
Leslie Cauley
Find this article
at:
http://www.usatoday.com/news/washington/2006-05-10-nsa-qna_x.htm
|
|
USAToday.com
|
Fractured phone system
consolidating once again
By Leslie Cauley, USA
TODAY
Updated:
12:30 am ET May 11, 2006
|
AT&T's
relationship with the federal government has been a century in the
making. The company was founded in 1885 and over the next century
became the nation's de facto phone monopoly. At its peak in the early
1980s, it employed 1 million people.
In 1984, the Bell
Telephone System was broken up by a court decree. AT&T's local
operating companies — there were 22 in all — were grouped into seven
"regional Bells" and spun off as separate companies. Each had monopoly
control over local phone service in a specific region of the country.
The parent company,
AT&T — originally called the American Telephone & Telegraph Co.
— was also spun off. Its business was exclusively long-distance service.
Since then, Ma Bell
has been largely reconstituted. Today's AT&T is an amalgam of three
Bells: Ameritech, Southwestern Bell and Pacific Telesis, plus AT&T,
which is essentially the long-distance arm of the company. The carrier
recently announced plans to buy BellSouth, another of the original
seven regional Bells, for $67 billion.
Once the BellSouth
deal closes, AT&T will cement its position as the nation's biggest
communications company. It will also assume control of Cingular, the
nation's biggest cellphone carrier with more than 45 million customers.
Verizon isn't far
behind. The carrier, based in New York, is the result of mergers of two
Bells — Nynex and Bell Atlantic — plus GTE and MCI. Verizon also
controls the No. 2 wireless carrier, Verizon Wireless.
BellSouth is the
smallest of the lot. But its local phone territory covers the sprawling
Southeast — nine states in one of the fastest-growing regions in the
USA today.
That leaves Qwest.
The carrier, based in Denver, is the product of a merger between one of
the seven regional Bells, US West, plus Qwest, a long-distance carrier.
Qwest provides service in a 14-state region in the West and Northwest.
Find this article
at:
http://www.usatoday.com/news/washington/2006-05-10-phone-history_x.htm
|
|
USAToday.com
|
Oversight? What
oversight?
Congress briefed, then
gagged
USA
Today Editorial
Posted:
9:51 PM ET May 17, 2006
|
When anti-terror
programs of questionable legality are revealed — such as the National
Security Agency's snooping on phone calls and records — President Bush
hastens to point out that members of Congress from both parties have
been "briefed."
That's as it should
be. Congress is supposed to oversee the executive branch's intelligence
operations. From all indications, however, that oversight is badly
broken.
Information is
dribbled out to a handful of lawmakers. Briefing turns into political
cover. Consultation becomes more like inform-and-gag. Republicans act
like cheerleaders for the White House. Democrats feign surprise and
outrage when dubious programs become public.
Wednesday's
briefing of the Senate and House intelligence committees by the head of
the NSA typifies the problems. It was overdue. It was spurred by
partisan bickering. And, because members are sworn to secrecy, it has
the effect of limiting how much they can say at today's Senate
confirmation hearing for former NSA chief Michael Hayden to head the
CIA.
It's not supposed
to be this way. The intelligence committees were created 30 years ago
to represent the public interest. They are one of the few checks on a
system that must, by its nature, remain secret, and judging by history,
has often gotten out of control. But the system has become so weak,
Congress might as well be deaf and blind. There's plenty of blame to go
around:
- The White House arbitrarily restricted its
briefings, and a weak-kneed Congress didn't fight back. On the NSA's
warrantless eavesdropping program, the White House often briefed as few
as four or eight members of Congress from both parties, instead of the
entire intelligence committees.
- Democrats played helpless victims. Once The New
York Times revealed the wiretapping program, for instance, Sen. Jay
Rockefeller of West Virginia, the top Democrat on the Intelligence
Committee, said he'd had "concerns" as early as July 2003. His
response? He wrote a letter to Vice President Cheney and put a copy in
his safe.
Clearly,
Rockefeller couldn't shout his objections from the Senate floor, but
senators do have leverage to lobby colleagues and push for meetings
with the president.
- Republicans have acted more like partisans than
skeptical overseers. Senate Intelligence Chairman Pat Roberts, R-Kan.,
has been quicker to criticize news media and Democrats than to publicly
question the NSA's eavesdropping or the collection of millions of phone
records, as revealed by USA TODAY last week.
What to do?
Two former Senate intelligence committee leaders, Democrat Bob Graham
and Republican William Cohen, say partisanship is sapping the panels of
meaningful oversight.
Structural changes — such as dividing the committees equally between
Democrats and Republicans, regardless of which party is in power —
might help. So could a recommendation from the bipartisan 9/11
Commission, one that Congress has ignored, to give the intelligence
committees more power over the intelligence agencies' budgets.
Ultimately, however, change involves trust and leadership. Committee
members would have to jettison partisan rivalries and see their duty as
representing the public interest and protecting against intelligence
excesses.
Until they do, at a time when America is faced with tough choices
between security and civil liberties, Bush administration officials are
making the choices without any meaningful input from Congress. That
seems to be the way they like it.
Find this article at:
http://www.usatoday.com/news/opinion/editorials/2006-05-17-our-view_x.htm
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USAToday.com
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Down to the Fourth
Estate
USA Today Op Ed Opinion
By
Jonathan Turley
Updated:
9:33 PM ET May 16, 2006
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The Forum: NSA Controversy
Government
Oversight
Down to the Fourth
Estate
Posted 5/16/2006
9:33 PM ET
By Jonathan Turley
This month,
Congress is faced with a most inconvenient crime. With the recent
disclosure of a massive secret database program run by the National
Security Agency involving tens of millions of innocent Americans,
members are
confronted with a second intelligence operation that not only lacks
congressional authorization but also appears patently unlawful. In
December, the public learned that the NSA was engaging in warrantless
domestic surveillance of overseas communications — an operation many
experts believe is a clear federal crime ordered by the president more
than 30 times.
What is most striking about these programs
is that they were revealed not by members of Congress but by members of
the Fourth Estate: Journalists who confronted Congress with evidence of
potentially illegal conduct by this president that was known to various
congressional leaders.
In response,
President Bush has demanded to know who will rid him of these
meddlesome whistle-blowers, and various devout members have rushed
forth with cudgels and codes in hand.
Now, it appears
Congress is finally acting — not to end alleged criminal acts by the
administration, mind you, but to stop the public from learning about
such alleged crimes in the future. Members are seeking to give the
president the authority to continue to engage in warrantless domestic
surveillance as they call for whistle-blowers to be routed out. They
also want new penalties to deter both reporters and their sources.
The debate has
taken on a hopeful Zen-like quality for besieged politicians: If a
crime occurs and no one is around to reveal it or to report it, does it
really exist?
The plain fact is
that neither party wants to acknowledge that the president might have
ordered the commission of federal crimes in the name of national
security. Thus, while there have been calls for another feeble hearing
(possibly with telecom executives), Congress would prefer to
investigate steroids in baseball and the selling of horses to France
for gourmet dinners.
Nothing
here to cheer
Congress has become
a sad parody of itself. In his State of the Union address in January,
Bush proudly said he had repeatedly ordered the domestic surveillance
operation and would continue to do so. In perhaps the most bizarre
moment in modern congressional history, members from both houses
proceeded to give him a standing ovation — cheering their own
institutional irrelevancy.
Willful blindness,
however, will only go so far when newspapers continually put these acts
on the front pages. In addition to new possible penalties for
whistle-blowers, members of Congress are blocking the enactment of a
long-overdue federal shield law to protect journalists from having to
disclose their sources to prosecutors — despite the fact that the
majority of states have passed such laws as an essential component to
good government.
In the meantime,
the Bush administration has carried out a scorched-earth campaign
against whistle-blowers, including demanding that employees sign
waivers of any confidentiality agreements with reporters and using
polygraphs designed to uncover anyone speaking with the media. It has
also sought to convince a federal court in Virginia to radically extend
the reach of the 1917 Espionage Act to cover anyone who even hears
classified information while researching or reporting on government
policy.
In a case involving
two lobbyists for the American Israel Public Affairs Committee (AIPAC),
the government is seeking stiff jail terms based on their receipt of
classified information orally from a Pentagon employee on policy issues
in the Middle East. (The Pentagon official has been sentenced to more
than 12 years in prison.) Under the interpretation of the Bush
administration, if a lobbyist or a reporter or a researcher is given
such information, he can be charged with unlawful possession of
classified information.
If successful in
the AIPAC case, the Bush administration would make it a crime for a
reporter to disclose classified information, even if the story reveals
a criminal operation. Thus, even if the NSA program is a criminal
enterprise, it is a classified criminal enterprise that cannot be
disclosed. It would have been mob boss John Gotti's dream: Commit a
crime and then stamp it classified.
What
must change
It is time to
separate true patriots from cringing politicians. The assertion of
unchecked power by this president has created a danger to our
constitutional system. Congress must demand an independent
investigation of these programs. It must also pass a federal shield law
and strengthen whistle-blower protections to preserve the only current
check on governmental abuse. It should change the federal law to
prevent the abusive use of the Espionage Act, such as in the AIPAC
case. Finally, it should revamp the intelligence oversight system,
which has long been viewed as a pathetic paper tiger with either little
interest or ability in checking abuses.
The Framers gave us
a free press as the final safety net if all other checks and balances
in the three branches of government should fail. With the failure of
both parties in Congress to exercise oversight responsibilities, the
importance of a free press has been vividly demonstrated. The public
now has a choice. It can live in self-imposed ignorance, or it can
fight for an open society. Not hearing about alleged crimes by your
government is certainly a comfort, but not having crimes occur would be
an even greater one.
Jonathan
Turley is a law professor at George Washington University who has
testified before Congress on both the NSA's surveillance operations and
the need for a federal shield law to protect journalists. He is a
member of USA TODAY's board of contributors.
Find this article
at:
http://www.usatoday.com/news/opinion/editorials/2006-05-16-forum-nsa-oversight_x.htm
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USAToday.com
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Questions, and a
history refresher, for Gen. Hayden
By Nat Hentoff
Posted:
9:39 PM ET May 16, 2006
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Questions, and a history refresher, for
Gen. Hayden
Posted 5/16/2006
9:39 PM ET
By Nat Hentoff
In late
January at the National Press Club, Gen. Michael Hayden, deputy
director of National Intelligence, was asked whether the Fourth
Amendment requires probable cause for government searches of Americans.
"No," he replied.
The court standard for lawful searches and seizures, Hayden added, is
"unreasonable search and seizure." So reasonable suspicion is the
general's standard.
Actually, this most
specifically detailed of all 10 parts of the Bill of Rights goes on to
require a court warrant for searches based on "probable cause" that a
crime has been committed or is being planned. There are exceptions, but
rarely to the high standard of probable cause.
Aware that Hayden
has been head of the National Security Agency (NSA) for six years, I
was not entirely surprised at his bypassing probable cause. After all,
the agency's omnivorous secret warrantless eavesdropping program has
given us all plenty of reasons to be concerned about privacy.
Hayden, nominated
to lead the CIA, will be asked to defend such programs at his
confirmation hearings that start Thursday on Capitol Hill. I'd like to
ask him whether he knows that the Fourth Amendment is so specific that
it insists the warrants also "describ(e) the place to be searched, and
the persons or things to be seized."
This requirement by
the Framers is especially pertinent now, in light of USA TODAY's report
that the NSA has collected records of billions of phone calls since the
9/11 attacks in perhaps the largest database in history.
As the paper
explained, these are calls made by "ordinary Americans," not suspects.
Since the NSA does not go to any court for warrants for its analysis of
these records, there is no probable cause. As such, I would ask Hayden
how he fits reasonable suspicion into this ever-expanding web.
This database might
be shared with the CIA, the FBI and other agencies. The "call-detail"
records do not have your name, address or other personal data, and the
NSA is not eavesdropping. Even so, any agency can easily
cross-reference those phone numbers with databases that do have your
name, address and much more.
Another question I
have for Hayden: Does he know why the Fourth Amendment is so
insistently detailed? The answer has deep roots in pre-revolutionary
America.
The colonists were
subject to searches by British customs officials (and troops if need
be) bearing "writs of assistance." These were wholly general search
warrants that required no judicial approval and enabled the British to
enter Americans' homes and businesses and turn everything upside down
in search of contraband.
In 1765, outraged
patriots, including Samuel Adams, formed the Sons of Liberty in Boston,
and seven years later they created a Committee of Correspondence that
vividly detailed these invasions.
These committees
multiplied — including one formed in part by Thomas Jefferson and
Patrick Henry. Jefferson wrote that these committees of correspondence
"would be the best instrument for communication." As the stories of
British outrages circulated, the galvanizing writs of assistance became
one of the precipitating causes of our revolution.
But that was then.
A disturbing
aftermath of USA TODAY's story was an initial Washington Post-ABC News
poll that showed 63% of Americans approved of the NSA's dragnet.
Perhaps as more information became available over the weekend, the
story sunk in: A USA TODAY/Gallup Poll showed 51% against the program,
with two-thirds of Americans concerned. I hope these worried folks
might consider starting their own Internet committees of correspondence.
When I speak to
students about the Bill of Rights, I take them to a Boston courtroom
where in 1761, a prominent lawyer, James Otis, argued passionately for
hours against the king's writs of assistance. He lost the case; but in
the room that day was a young lawyer, John Adams, who wrote: "Then and
there the child Independence was born!"
When asked about
the NSA story, Hayden said, "Everything that the NSA does is lawful and
very carefully done and that the appropriate members of the Congress,
the House and Senate, are briefed on all NSA activities, and I think
I'd just leave it at that."
I didn't hear the
Liberty Bell ringing in the background.
Nat
Hentoff is an authority on free speech issues and the Bill of Rights.
Find this article
at:
http://www.usatoday.com/news/opinion/editorials/2006-05-16-forum-nsa-hayden_x.htm
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USAToday.com
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Hayden hearings begin
this morning
By Patrick Cooper
Updated:
8:08 AM. ET May 18, 2006
|
As
President Bush's pick to lead the CIA, Gen. Michael Hayden comes before
the Senate Intelligence Committee today. The Associated Press says
the confirmation "undoubtedly will be the toughest public
questioning of his 37-year government career," but this morning's Washington
Post
finds challenges all around the room. Senators "face an array of
questions, loose ends and seeming contradictions about the
administration's domestic surveillance techniques," the
Post says. "The first mystery they must
unravel, however, is the nominee himself...."
With the hearings starting at 9:30 a.m. ET, the
tone of the room remains unclear. The New York Times reports
Wednesday's Hill briefings on National Security Agency activities have
smoothed Hayden's path some.
But a potential complication rises
in today's Baltimore Sun.
"The National Security Agency developed a pilot program in the late
1990s that would have enabled it to gather and analyze huge amounts of
communications data without running afoul of privacy laws," the Sun
says. "But after the Sept. 11 attacks," when Hayden ran the agency, "it
shelved the project -- not because it failed to work but because of
bureaucratic infighting and a sudden White House expansion of the
agency's surveillance powers, according to several intelligence
officials."
To learn how Hayden's last hearing before the
intelligence panel began, read the
PDF of his opening statement in April 2005,
when Bush had appointed him principal deputy director of national
intelligence. Hayden's native Pittsburgh takes a starring role.
Posted by
Patrick Cooper at 08:38 AM/ET, | Permalink
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USAToday.com
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We're doing our job
But for security, both
intelligence and its oversight must be secret.
By Pat
Roberts
USA
Today Op Ed
Opinion
Print Edition, May 18, 2006
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We're doing our job
But for security,
both intelligence and its oversight must be secret.
By Pat Roberts
Anyone who has served on a congressional intelligence committee has
struggled with the issue of secrecy. How do we assure the public that
we are fully informed and conducting vigorous oversight of our nation's
intelligence activities when we can say little to nothing about what we
know? The result of this conundrum is that we often get accused of not
doing our job. Such accusations, by their very nature, are uninformed
and, therefore, inaccurate. Unfortunately, ignorance is no impediment
for critics.
It's the job of the Senate Intelligence Committee to oversee the
intelligence community, ensuring that it's protecting Americans against
a vicious enemy while respecting civil liberties. With respect to the
National Security Agency's Terrorist Surveillance Program, the
committee is doing its job. It's very secret, and oversight must be
conducted in a closed environment.
Oversight of classified information requires a balance between the
executive and legislative branches. The executive owns the information
and has the responsibility to protect it. The legislative branch wants
the information for oversight. Like many disagreements between the
branches of government, compromise is required.
At my insistence, we have expanded oversight from two members of the
committee to all 15 members.
Closed-door oversight of secret national security matters is a
necessity and isn't new. It requires trust between the public and their
congressional representatives. Despite the accusations of uninformed
press pundits or political naysayers, closed-door oversight doesn't
make such programs illegal.
Any president, not just President Bush, is the commander in chief and
is responsible for protecting Americans from enemy attack. Presidents
since Franklin D. Roosevelt have used their inherent legal authority to
conduct electronic surveillance to protect the nation. When executed
with the necessary safeguards, oversight and secrecy, electronic
surveillance can be a powerful weapon to detect our enemies.
Without it, Americans would be less safe.
Sen. Pat Roberts,
R-Kan., is chairman of the Senate Intelligence Committee.
Find this article at:
http://www.usatoday.com/printedition/news/20060518/oppose18.art.htm
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AFTERWORD
Hayden
CIA Nomination Cause of Great Concern
By David C. Manchester
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PERMANENTLY
REVOKE EXECUTIVE ENTITLEMENT TO REDACT
The first and most basic requirement to reforming this manner of US
Intelligence misfunction is to permanently remove the legal entitlement
the current established agencies have to redact their own documents ...
This is not properly an
executive
function.
The executive branch of the United States government has demonstrated
time and again over at least 60 years that it can not be trusted not to
abuse this privilege, and has demonstrated myriad ways in which it can
be abused. Despite the executive branch's constitutional
designation
as that branch of government responsible for enforcing the law, it has
routinely broken the law, in many cases by waving the magic wand of,
and chanting the incantation "national security."
Prudent security practise dictates this function be removed from this
branch of government, thereby removing the temptation, or possibility
for such abuse.
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Michael
Hayden's nomination causes me great concern.
This is the man
responsible for turning the NSA's awesome technical
prowess and power against the lives of US Citizens without reference to
the judicial or legislative branch's of our government's oversight, or
check, or balance.
For the first time
as a matter of public policy,
the NSA's microelectronic data processing has been turned
against the sanctity of individual choice in the United States'
democratic form of culture. This could well be an historic
inflection point
in the cultural evolution of a social, global, digital civic
society. And it could spell the difference between an Orwellian
nightmare and a Free world.
The problem I have
is that the man responsible for implementing and supervising this turn
of events is being nominated
to lead the CIA - an organisation of which I have a
bit more than anecdotal evidence
over
thirty years that it has been killing not just journalists who would
blow
whistles important for a democratic People to hear blowing, but also
kill those
who would even contemplate performing such vital role. As well as
take active steps to limit the degrees of freedom of such Persons.
These are acts contrary to the spirit of the Constitution, Bill of
Rights, and numerous laws and judicial precendents.
This is the
outsourced conduct of domestic warfare against our own
People by elements of the military industrial complex - in other words,
some large corporate interests allowed to override our democratic form
of organisation of society and economy and culture of free expression
and personal liberty, and tradition of open political participation in
a democratic republic.
I am not
particularly concerned about the database. Based on my
experience, I am more worried about the Government going around killing
People. Particularly People who our announced First Principles
would indicate are on our
side - journalists like Steve Kangas and Gary Webb.
And doing so
under color of authority granted initially for a Cold War which no
longer exists, using a vague current (endless "perpetual twilight
struggle") war on terrorists for an excuse to override basic democratic
principles and the rule of law to perpetuate outdated economic models
of the few over the many.
I am concerned over the end run around the
rule of law. I'm
worried that the tools of absolute information repression are now
unleashed, and what Congress we have (the excuse, or placeholder, of
the Congress that we now have) will now further enlarge the authority
of those responsible for this, ratifying the abandonment of
civilisation itself, in the name of saving it.
I am concerned that
a regime that has been secretly killing selected
members of it's Fourth Estate will now be that much more emboldened as
to do it not so secretly, or discriminately as before.
I worry that there
is more than anecdotal evidence parts of the US
Government and it's friends have been conducting strategic and tactical
psychological and media warfare on Free and Independent individual
citizens for years, and that permitting the Bush administration /
regime to go on ignoring the Rule of Law in so many areas will have a
permanent, crippling effect on the ability of my society to steer
itself into a future of civil, humane global digital culture.
Because the tools of total information repression will have been
suffered to be placed in their hands.
So the nomination
of General Michael Hayden, the man responsible for
turning Orwellian technical prowess against us, to head the CIA,
progenitor of the Music
Project, which wages economic and actual
warfare against us, to me, is a chilling prospect.
I honestly think
the powers that be are skating dangerously close to
the edge, and the abyss is that place where the American People decide
to form another government.
If that's where
this mal-adminstration is leading us, God Help Us to do
it without bloodshed. With a President who seriously wants to
establish the legal principle that as the chief executive officer of
nation, responsible for ensuring that the laws and Constitution are
faithfully executed, that he can pick and choose - for any reason, war
or no - which laws to obey and enforce and which laws to ignore ...
With a President who wants to establish such a legal principle, what
makes him think the rest of the People won't follow suit? After
all, if the President won't obey the law, who will?
This is the
slipperiest slope there is. And it's bound to be a
hell of a toboggan ride.
Journalists (and
humane beings), hang on.
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