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Bush Lets U.S. Spy on Callers Without Courts

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials. Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications. The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches. "This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches." Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight....

Bush Authorized Domestic Spying

President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night. For more than four years, the NSA tasked other military intelligence agencies to assist its broad-based surveillance effort directed at people inside the country suspected of having terrorist connections, even before Bush signed the 2002 order that authorized the NSA program, according to an informed U.S. official. The effort, which began within days after the attacks, has consisted partly of monitoring domestic telephone conversations, e-mail and even fax communications of individuals identified by the NSA as having some connection to al Qaeda events or figures, or to potential terrorism-related activities in the United States, the official said. It has also involved teams of Defense Intelligence Agency personnel stationed in major U.S. cities conducting the type of surveillance typically performed by the FBI: monitoring the movements and activities -- through high-tech equipment -- of individuals and vehicles, the official said. The involvement of military personnel in such tasks was provoked by grave anxiety among senior intelligence officials after the 2001 suicide attacks that additional terrorist cells were present within U.S. borders and could only be discovered with the military's help, said the official, who had direct knowledge of the events. Kate Martin, director of the Center for National Security Studies at George Washington University, said the secret order may amount to the president authorizing criminal activity....

Terror case tests reach of federal power

The US is playing a shell game with one of the nation's most important - and perhaps dangerous - prisoners. Through aggressive legal tactics, the government has put alleged "dirty bomb" conspirator Jose Padilla through an odyssey unprecedented in American jurisprudence. In the 3-1/2 years since his arrest at Chicago's O'Hare International Airport, the government has repeatedly asserted unilateral power in a way that has undercut Mr. Padilla's ability to defend himself. In addition, Justice Department lawyers have used that same unilateral power to help insulate their actions from the scrutiny of the judiciary - including the US Supreme Court. Critics see such tactics as a troubling symptom of the Bush adminstration's expansive view of presidential power. Supporters say the tactics are designed more to help win the war on terror than to win court battles. That government strategy has left unresolved a string of legal challenges raising some of the most fundamental issues of US constitutional law. They include the president's authority to name US citizens as "enemy combatants" in the war on terror and what rights, if any, protect such citizens. Now, 18 months later, Padilla's case is back before the Supreme Court. The justices are being asked to consider the merits of Padilla's arguments and, by extension, to judge the legality of the administration's actions. Many court watchers believe at least five of the justices are prepared to rule in Padilla's favor should the high court agree to take up his case. Concerned about that possibility, the government is urging the justices not to hear the Padilla case. But the Bush administration is exerting its unilateral power in an apparent attempt to render Padilla's Supreme Court challenge moot. Two days before the government's brief was due at the Supreme Court, the administration announced in a surprise move that it was ending its indefinite detention of Padilla as an enemy combatant. Instead, he would be relocated to a Miami lockup and charged for allegedly providing material support to terror groups....

Pentagon Will Review Database on U.S. Citizens

Pentagon officials said yesterday they had ordered a review of a program aimed at countering terrorist attacks that had compiled information about U.S. citizens, after reports that the database included information on peace protesters and others whose activities posed no threat and should not have been kept on file. The move followed an NBC News report Tuesday disclosing that a sample of about 1,500 "suspicious incidents" listed in the database included four dozen anti-war meetings or protests, some aimed at military recruiting. Although officials defended the Pentagon's interest in gathering information about possible threats to military bases and troops, one senior official acknowledged that a preliminary review of the database indicated that it had not been correctly maintained. "On the surface, it looks like things in the database that were determined not to be viable threats were never deleted but should have been," the official said. "You can also make the argument that these things should never have been put in the database in the first place until they were confirmed as threats." The program, known as Talon, compiles unconfirmed reports of suspected threats to defense facilities. It is part of a broader effort by the Pentagon to gather counterterrorism intelligence within the United States, which has prompted concern from civil liberties activists and members of Congress in recent weeks....

Feingold Now Has Numbers on His Side

In Congress, where numbers are everything, the math on the Patriot Act suddenly seems to be moving in favor of Sen. Russell Feingold. He was a minority of one four years ago, when the Wisconsin Democrat cast the lone Senate vote against the USA Patriot Act in the traumatic weeks after the Sept. 11 attacks. The law, he said then, gave government too much power to investigate its citizens. Ninety-nine senators disagreed. Now add more than two dozen senators to Feingold's side, including the leaders of his party and some of the chamber's most conservative Republicans, and the balance of power shifts. The new Senate arithmetic that emerged this week is enough to place the renewal of major portions of the law in doubt. It was enough to inspire Senate Republican leaders to consider a backup plan in case Feingold's filibuster threat succeeded. Enough to prompt President Bush to dispatch Attorney General Alberto Gonzales to Capitol Hill twice in two days to lobby on the accord's behalf. No luck so far, said the chief Senate sponsor. "We've got a battle on our hands," Judiciary Committee Chairman Arlen Specter, R-Pa., told reporters after Gonzales had departed Wednesday. Bush weighed in personally Thursday, urging opponents of the renewal to abandon the filibuster threats....

How Congress Has Assaulted Our Freedoms in the Patriot Act

The compromise version of the Patriot Act to which House and Senate conferees agreed last week and for which the House voted yesterday is an unforgivable assault on basic American values and core constitutional liberties. Unless amended in response to the courageous efforts of a few dozen senators from both parties, the new Patriot Act will continue to give federal agents the power to write their own search warrants – the statute’s newspeak terminology calls them "national security letters" – and serve them on a host of persons and entities that regularly gather and store sensitive, private information on virtually every American. Congress once respected the Fourth Amendment until it began cutting holes in it. Before Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1977, Americans and even non-citizens physically present here enjoyed the right to privacy guaranteed by the Fourth Amendment. That Amendment, which was written out of a revulsion to warrants that let British soldiers look for any tangible thing anywhere they chose, specifically requires that the government demonstrate to a judge and the judge specifically find the existence of probable cause of criminal activity on the part of the person whose property the government wishes to search. The Fourth Amendment commands that only a judge can authorize a search warrant. FISA unconstitutionally changed the probable cause of criminality requirement to probable cause of employment by a foreign government, hostile or friendly. Under FISA, if the government can demonstrate the foreign agency or employment status of the person whose things it wishes to search, the secret FISA court will issue the search warrant. But even FISA respects constitutional liberty, since it prohibits prosecutions based on evidence obtained from these warrants. Thus, if a FISA warrant reveals that the embassy janitor is really a spy who beats his wife, he would not and could not be prosecuted for either crime because the evidence of his crimes was obtained in violation of the Fourth Amendment’s requirement of a judicial finding of probable cause of criminal activity. Instead of being prosecuted, he would be deported. A year later in 1978, cutting yet another hole in the Fourth Amendment, Congress revealed its distaste for fidelity to the Constitution and its ignorance of the British government’s abuse of the colonists by enacting the Orwellian–named, Right to Financial Privacy Act. This statute, for the first time in American history, let federal agents write their own search warrants, but limited the subjects of those warrants to financial institutions. Just like FISA, it recognized the unconstitutional nature of evidence obtained by a self-written search warrant, and banned the use of such evidence in criminal prosecutions....

Dead Man Tells No Tales

Two air marshals gunned down an American citizen last week in Miami, and most of the establishment media seemingly couldn't care less. Immediately after 44-year-old Rigoberto Alpizar died on December 7 in a hail of bullets from two air marshals, Dave Adams, a spokesman for the Federal Air Marshal Service told CNN that Alpizar had shouted "I have a bomb in my bag" while running up and down the aisle of an American Airlines plane as it sat on the runway. This was the version of events that the vast majority of the media repeated unquestioningly in the first days after the killing. However, online articles on December 8 by Time.com and CNN.com contained quotes from passengers debunking the feds' story. The Orlando Sentinel reported on December 9, "Seven passengers interviewed by the Orlando Sentinel—seated in both the front and rear of the main passenger cabin—said Alpizar was silent as he ran past them on his way to the exit." No passenger the Sentinel spoke to offered any account akin to what the feds claimed. It is not yet clear exactly what happened at Miami International Airport. But the primary justification the feds offered for using deadly force did not survive even two full news cycles....

Rigoberto, Requiesce in Pace

The government tried to paint Mr. Alpizar as aggressive, the sort anyone might reasonably mistake for a terrorist; his neighbors and family slashed that portrait. "Rigo Alpizar was a loving, gentle and caring husband, uncle, brother, son and friend," his sister-in-law told CNN, while a neighbor described him to Florida's Sun Sentinel: "He was a nice guy, always smiling, always talkative. Everybody is talking about a guy I know nothing about." A second neighbor echoed that: he was "very friendly and helpful to people around the neighborhood ... a very pleasant person, he and his wife both." As if this weren't enough, the couple was returning from a missionary trip to Ecuador, during which they assisted Mrs. Alpizar's uncle, a volunteer dentist. It seems that Rigo was about as far as he could get from the Al Qaeda terrorist the air marshals want us to think they perceived. The Alpizars had arrived in Miami's airport from South America, endured the rude, hostile welcome of US Customs, and were catching a connecting flight home to Orlando – a flight which tragically included two air marshals among its passengers. Rigo suffered from a bipolar disorder. He was already agitated when he boarded the plane, but in the final moments before the jet pulled away from the gate, his anxiety became so acute he bolted from his seat and ran for the door. And why not? Everything connected with American aviation anymore traumatizes those in perfect emotional health, let alone anyone struggling with bipolarism....

US no-fly list vexes travellers

Sarah Zapolsky was checking in for a flight to Italy when she discovered her 9-month-old son's name was on the United States' "no-fly" list of suspected terrorists. "We pointed down to the stroller, and he sat there and gurgled," Zapolsky said, recalling the incident at Dulles International Airport outside Washington in July. "The desk agent started laughing. ... She couldn't print us out a boarding pass because he's on the no-fly list." Zapolsky, who did not want her son's name made public, said she was initially amused by the mix-up. "But when I found out you can't actually get off the list, I started to get a bit annoyed." Zapolsky isn't alone. According to the Transportation Security Administration, more than 28,000 people have applied to the TSA redress office to get on the "cleared list", which takes note of individuals whose names are similar to those on the terrorism watch list, but does not guarantee an end to no-fly list hassles....