Wednesday 21 December 2005
Jurist concerned Bush order tainted work of secret panel.
federal judge has resigned from the court that oversees government
surveillance in intelligence cases in protest of President Bush's
secret authorization of a domestic spying program, according to two
District Judge James Robertson, one of 11 members of the secret Foreign
Intelligence Surveillance Court, sent a letter to Chief Justice John G.
Roberts Jr. late Monday notifying him of his resignation without
providing an explanation.
associates familiar with his decision said yesterday that Robertson
privately expressed deep concern that the warrantless surveillance
program authorized by the president in 2001 was legally questionable
and may have tainted the FISA court's work.
who was appointed to the federal bench in Washington by President Bill
Clinton in 1994 and was later selected by then-Chief Justice William H.
Rehnquist to serve on the FISA court, declined to comment when reached
at his office late yesterday.
of Robertson's resignation came as two Senate Republicans joined the
call for congressional investigations into the National Security
Agency's warrantless interception of telephone calls and e-mails to
overseas locations by U.S. citizens suspected of links to terrorist
groups. They questioned the legality of the operation and the extent to
which the White House kept Congress informed.
Chuck Hagel (Neb.) and Olympia J. Snowe (Maine) echoed concerns raised
by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee,
who has promised hearings in the new year.
and Snowe joined Democrats Dianne Feinstein (Calif.), Carl M. Levin
(Mich.) and Ron Wyden (Ore.) in calling for a joint investigation by
the Senate judiciary and intelligence panels into the classified
hearings would occur at the start of a midterm election year during
which the prosecution of the Iraq war could figure prominently in House
and Senate races.
all Republicans agreed with the need for hearings and backed White
House assertions that the program is a vital tool in the war against al
am personally comfortable with everything I know about it," Acting
House Majority Leader Roy Blunt (R-Mo.) said in a phone interview.
the White House, spokesman Scott McClellan was asked to explain why
Bush last year said, "Any time you hear the United States government
talking about wiretap, it requires - a wiretap requires a court order.
Nothing has changed, by the way. When we're talking about chasing down
terrorists, we're talking about getting a court order before we do so."
McClellan said the quote referred only to the USA Patriot Act.
of the program last week by the New York Times also spurred
considerable debate among federal judges, including some who serve on
the secret FISA court. For more than a quarter-century, that court had
been seen as the only body that could legally authorize secret
surveillance of espionage and terrorism suspects, and only when the
Justice Department could show probable cause that its targets were
foreign governments or their agents.
indicated privately to colleagues in recent conversations that he was
concerned that information gained from warrantless NSA surveillance
could have then been used to obtain FISA warrants. FISA court Presiding
Judge Colleen Kollar-Kotelly, who had been briefed on the spying
program by the administration, raised the same concern in 2004 and
insisted that the Justice Department certify in writing that it was not
just don't know if the product of wiretaps were used for FISA warrants
- to kind of cleanse the information," said one source, who spoke on
the condition of anonymity because of the classified nature of the FISA
warrants. "What I've heard some of the judges say is they feel they've
participated in a Potemkin court."
is considered a liberal judge who has often ruled against the Bush
administration's assertions of broad powers in the terrorism fight,
most notably in Hamdan v. Rumsfeld . Robertson held in that case that
the Pentagon's military commissions for prosecuting terrorism suspects
at Guantanamo Bay, Cuba, were illegal and stacked against the detainees.
FISA judges said they were saddened by the news of Robertson's
resignation and want to hear more about the president's program.
guess that's a decision he's made and I respect him," said Judge George
P. Kazen, another FISA judge. "But it's just too quick for me to say
I've got it all figured out."
said Monday that the White House briefed Congress more than a dozen
times. But those briefings were conducted with only a handful of
lawmakers who were sworn to secrecy and prevented from discussing the
matter with anyone or from seeking outside legal opinions.
John D. Rockefeller IV (D-W.Va.) revealed Monday that he had written to
Vice President Cheney the day he was first briefed on the program in
July 2003, raising serious concerns about the surveillance effort.
House Minority Leader Nancy Pelosi (D-Calif.) said she also expressed
concerns in a letter to Cheney, which she did not make public.
chairman of the Senate Select Committee on Intelligence, Pat Roberts
(R-Kan.), issued a public rebuke of Rockefeller for making his letter
response to a question about the letter, Sen. John McCain (R-Ariz.)
suggested that Rockefeller should have done more if he was seriously
concerned. "If I thought someone was breaking the law, I don't care if
it was classified or unclassified, I would stand up and say 'the law's
being broken here.' "
Rockefeller said the secrecy surrounding the briefings left him with no
other choice. "I made my concerns known to the vice president and to
others who were briefed," Rockefeller said. "The White House never
addressed my concerns."
Staff writers Jonathan Weisman and Charles Babington and researcher Julie Tate contributed to this report.
Go to Original
Spying Program Snared US Calls
By James Risen and Eric Lichtblau
The New York Times
Wednesday 21 December 2005
- A surveillance program approved by President Bush to conduct
eavesdropping without warrants has captured what are purely domestic
communications in some cases, despite a requirement by the White House
that one end of the intercepted conversations take place on foreign
soil, officials say.
officials say the National Security Agency's interception of a small
number of communications between people within the United States was
apparently accidental, and was caused by technical glitches at the
National Security Agency in determining whether a communication was in
experts say the issue points up troubling logistical questions about
the program. At a time when communications networks are increasingly
globalized, it is sometimes difficult even for the N.S.A. to determine
whether someone is inside or outside the United States when making a
cellphone call or sending an e-mail message. As a result, people that
the security agency may think are outside the United States are
actually on American soil.
President Dick Cheney entered the debate over the legality of the
program on Tuesday, casting the program as part of the administration's
efforts to assert broader presidential powers.
on communications between two people who are both inside the United
States is prohibited under Mr. Bush's order allowing some domestic
in at least one instance, someone using an international cellphone was
thought to be outside the United States when in fact both people in the
conversation were in the country. Officials, who spoke on condition of
anonymity because the program remains classified, would not discuss the
number of accidental intercepts, but the total is thought to represent
a very small fraction of the total number of wiretaps that Mr. Bush has
authorized without getting warrants. In all, officials say the program
has been used to eavesdrop on as many as 500 people at any one time,
with the total number of people reaching perhaps into the thousands in
the last three years.
Bush and his senior aides have emphasized since the disclosure of the
program's existence last week that the president's executive order
applied only to cases where one party on a call or e-mail message was
outside the United States.
Michael V. Hayden, the former N.S.A. director who is now the
second-ranking intelligence official in the country, was asked at a
White House briefing this week whether there had been any "purely
domestic" intercepts under the program.
authorization given to N.S.A. by the president requires that one end of
these communications has to be outside the United States," General
Hayden answered. "I can assure you, by the physics of the intercept, by
how we actually conduct our activities, that one end of these
communications are always outside the United States."
General Alberto R. Gonzales also emphasized that the order only applied
to international communications. "People are running around saying that
the United States is somehow spying on American citizens calling their
neighbors," he said. "Very, very important to understand that one party
to the communication has to be outside the United States."
spokeswoman for the office of national intelligence declined comment on
whether the N.S.A. had intercepted any purely domestic communications.
"We'll stand by what General Hayden said in his statement," said the
spokeswoman, Judy Emmel.
Bush administration has not released the guidelines that the N.S.A.
uses in determining who is suspected of having links to Al Qaeda and
may be a target under the program. General Hayden said the
determination was made by operational people at the agency and "must be
signed off by a shift supervisor," with the process closely scrutinized
by officials at the agency, the Justice Department and elsewhere.
questions about the legal and operational oversight of the program last
year prompted the administration to suspend aspects of it temporarily
and put in place tighter restrictions on the procedures used to focus
on suspects, said people with knowledge of the program. The judge who
oversees the secret court that authorizes intelligence warrants - and
which has been largely bypassed by the program - also raised concerns
about aspects of the program.
concerns led to a secret audit, which did not reveal any abuses in
focusing on suspects or instances in which purely domestic
communications were monitored, said officials familiar with the
Hayden, at this week's briefing, would not discuss many technical
aspects of the program and did not answer directly when asked whether
the program was used to eavesdrop on people who should not have been.
But he indicated that N.S.A. operational personnel sometimes decide to
stop surveillance of a suspect when the eavesdropping has not produced
relevant leads on terror cases.
can't waste resources on targets that simply don't provide valuable
information, and when we decide that is the case," the decision on
whether a target is "worthwhile" is usually made in days or weeks, he
security and telecommunications experts said that even if the N.S.A.
seeks to adhere closely to the rules that Mr. Bush has set, the
logistics of the program may make it difficult to ensure that the rules
are being followed.
roaming cellphones, internationally routed e-mail, and voice-over
Internet technology, "it's often tough to find out where a call started
and ended," said Robert Morris, a former senior scientist at the N.S.A.
who is retired. "The N.S.A. is good at it, but it's difficult even for
them. Where a call actually came from is often a mystery."
Go to Original
Can the Government Spy on Citizens without a Warrant?
By Warren Richey
The Christian Science Monitor
Wednesday 21 December 2005
At issue: whether presidential power trumps a 1978 law requiring court oversight of domestic espionage.
Bush's decision to allow the super-secret National Security Agency to
spy on Americans without court warrants has touched off stormy debate
about his aggressive approach to the war on terror.
clash - between civil libertarians and the administration's expansive
view of presidential power - is a recurring theme in the Bush White
House. It lies at the center of ongoing debates over the government's
use of coercive interrogation techniques and the open-ended detention
of alleged enemy combatants at Guantßnamo Bay, Cuba, and in military
prisons in the United States.
week, the spotlight is on a recently disclosed classified operation
that permits the NSA to monitor communications between suspected Al
Qaeda members overseas and American citizens in the US. It is being
done without first obtaining a warrant from a special intelligence
court set up to police such sensitive intercepts.
of following the safeguards established by Congress under the 1978
Foreign Intelligence Surveillance Act (FISA), Bush administration
lawyers concluded that the White House could sidestep the warrant
requirements while conducting the espionage operation.
say the secret spying is illegal and an abuse of the president's
constitutional authority. Supporters say Bush is well within his power
to protect the nation from terrorists.
of the NSA operation by the New York Times last Friday surprised many
members of Congress and is said to have complicated efforts to
reauthorize the Patriot Act. Republican Sen. Arlen Specter, chairman of
the Judiciary Committee, has called for hearings to look into the NSA
operation. Supreme Court nominee Samuel Alito has been warned to
prepare for close questioning on the matter in his upcoming
confirmation hearing. And there is talk of the possible appointment of
two special counsels, one to look into the legality of the NSA
operation, the other to investigate the disclosure of the classified
project to the Times.
addition, Sen. Barbara Boxer (D) of California has asked legal scholars
to research whether Bush's authorization of secret spying is an
Bush and other administration officials have sought to blunt the
barrage of criticism by emphasizing the exigencies of protecting the
nation from terrorists. They stress that despite the highly classified
nature of the operation, the White House briefed key members of
Congress about the ongoing covert effort.
some members of Congress say they were given few details and were
unable to effectively exercise oversight responsibilities after being
sworn to secrecy.
officials also notified the chief judge of the Foreign Intelligence
Surveillance Court, which is empowered to authorize warrants for such
section of the foreign intelligence law, FISA, authorizes warrantless
surveillance under limited circumstances - but it does not appear to
apply to the NSA operation as described by administration officials.
Neither President Bush nor Attorney General Alberto Gonzales is
claiming the secret operation was conducted in compliance with FISA.
they say the operation was carried out under President Bush's
constitutional power as commander in chief, and under Congress's Joint
Authorization for Use of Military Force, which was passed more than
four years ago, shortly after the 9/11 attacks.
administration made the same argument before the US Supreme Court in
the case of alleged enemy combatant Yaser Hamdi. The court declined to
address the president's power as commander in chief. Instead, it based
its June 2004 decision upholding Mr. Hamdi's military detention solely
on the congressional authorization argument. But given the splintered
posture of the high court in that case and the possible arrival of a
second new justice, the potential outcome in any future case is less
"It is a murky area," says Ruth Wedgwood, an international law professor at Johns Hopkins University.
is an area in which Congress has legislated but, to be sure, they
didn't anticipate Al Qaeda in 1978," she says. "It is also an area
where obviously Americans have high expectations about their privacy."
was enacted to prevent domestic surveillance abuses that occurred
during earlier administrations, including the Nixon White House.
the debate make it into a courtroom, at issue will be whether FISA
preempts the president from taking actions as commander in chief in the
war on terror that ignore or violate the surveillance statute.
president is simply off the rails," says Marc Rotenberg, executive
director of the Electronic Privacy Information Center, which closely
monitors surveillance issues. Mr. Rotenberg says Bush's reliance on the
commander-in-chief powers "is probably overly broad and will be
Rivkin, a Washington lawyer and former Reagan and Bush I administration
official, has a different perspective. "FISA was designed to deal with
essentially peacetime counterintelligence and counterterrorism
operations," he says. "We are now at war."
says Bush's secret NSA operation is "tantamount to trying to break
Japanese military codes or intercept German communications during World
War II." The FISA requirement of judicial oversight of secret
intelligence operations would mandate a war-fighting role for judges
that the Constitution does not authorize, Mr. Rivkin says. "Where is it
written in the Constitution that the president is supposed to exercise
his commander-in-chief power based upon what a judge says or doesn't