FLE

U.S. Asks Supreme Court to Transfer Terror Suspect

The Bush administration asked the Supreme Court today to allow for the immediate transfer of Jose Padilla from a military brig to civilian custody to stand trial on terrorism charges, challenging an appellate court ruling last week that blocked the move. The Justice Department, in an unusually strong criticism of a lower court that has historically been a staunch ally, said the earlier order blocking Mr. Padilla's transfer to civilian custody represented an "unwarranted attack" on presidential discretion. In last week's ruling, the United States Court of Appeals for the Fourth Circuit in Richmond, Va., refused to allow Mr. Padilla to be transferred to civilian custody to face charges in Miami that he had conspired with Al Qaeda to commit terror attacks abroad. But Solicitor General Paul D. Clement, in the administration's new filing today asking the Supreme Court to take up the custody issue, said the Fourth Circuit's decision "defies both law and logic," and he noted that Mr. Padilla himself had sought to be transferred to civilian custody. In unusually caustic language, the solicitor general said that the Fourth Circuit did not have the authority to "disregard a presidential directive." And he said its decision blocking Mr. Padilla's transfer "is based on a mischaracterization of events and an unwarranted attack on the exercise of Executive discretion, and, if given effect, would raise profound separation-of-powers concerns." The Fourth Circuit is widely known as one of the most conservative appellate courts in the country, and it has sided with the Bush administration on a number of key issues involving matters of terrorism and national security....

Spy Agency Removes Illegal Tracking Files

The National Security Agency's Internet site has been placing files on visitors' computers that can track their Web surfing activity despite strict federal rules banning most files of that type. The files, known as cookies, disappeared after a privacy activist complained and The Associated Press made inquiries this week. Agency officials acknowledged yesterday that they had made a mistake. Nonetheless, the issue raised questions about privacy at the agency, which is on the defensive over reports of an eavesdropping program. "Considering the surveillance power the N.S.A. has, cookies are not exactly a major concern," said Ari Schwartz, associate director at the Center for Democracy and Technology, a privacy advocacy group in Washington. "But it does show a general lack of understanding about privacy rules when they are not even following the government's very basic rules for Web privacy." Until Tuesday, the N.S.A. site created two cookie files that do not expire until 2035....

Constitutional Spying

The Foreign Intelligence Surveillance Act (FISA) is a chronic problem. The controversy over President Bush's decision to bypass FISA warrants in the electronic surveillance of al Qaeda operatives has highlighted the act's limitations. But FISA has been a problem ever since it became law in 1978. Congress passed and President Carter signed the bill regulating electronic surveillance for foreign intelligence collection in the wake of an extended, post--Watergate debate about the so--called "imperial presidency." The debate was given added urgency by reports and official investigations of indiscriminate snooping in this country by elements of the U.S. intelligence community. However, like so much else from that period, the broad arguments about the president's role in the constitutional order were wrong, and the laws designed to correct real problems created a new set of problems. One irony of today's debate is that so many liberals are now defending FISA. Previously, a common complaint from the ACLU and others was that the secret federal court that issues warrants for foreign intelligence surveillance in this country had become a "rubber stamp" for the executive branch. Out of the thousands of applications put forward by the Department of Justice to the panel over the years, only a handful had ever been rejected. Instead of a check on executive authority, the court had become complicit in its activities-or so it was said. And to a certain extent that has been the case. Yet the reason for the high percentage of approvals has less to do with deference to executive judgment than with FISA's standard for obtaining a warrant when it involves surveillance of an American citizen or an alien residing legally in the United States. Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the "facts and circumstances relied upon . . . to justify [the attorney general's] belief that the target is an agent of a foreign power" or "engages . . . in international terrorism." And the FISA judges can only grant the warrant when "there is probable cause to believe that the target" is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence....

Disorder in the Court

Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it's been revealed in any number of authoritative, after--the--disaster investigations. According to the December 2002 report of the House and Senate intelligence committees' Joint Inquiry into the Terrorist Attacks of September 11, 2001, for one, the FISA system as a whole-and the FISA court in particular-went seriously off the rails sometime around 1995. A false impression began mysteriously to take hold throughout the government that the FISA statute, in combination with the Fourth Amendment, erected an almost impermeable barrier between intelligence agents and law enforcement personnel where electronic eavesdropping was concerned. And by the time, a few years later, that Osama bin Laden had finally become an official counterterrorism priority, this FISA court--enforced "wall" had already crippled the government's al Qaeda monitoring efforts. Absent specific, prior authorization from the FISA court, federal al Qaeda investigators were formally prohibited from sharing surveillance--derived intelligence information about terrorism suspects and plots with their law enforcement counterparts. And in late 2000, after federal prosecutors discovered a series of legally inconsequential errors and omissions in certain al Qaeda--related surveillance applications the FISA court had previously approved, the court's infamously prickly presiding judge, Royce Lamberth, appears to have had a temper tantrum ferocious enough to all but shut down the Justice Department's terrorism wiretapping program. "The consequences of the FISA Court's approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive," the Joint Inquiry explained. "Many FISA surveillances of suspected al Qaeda agents expired because [Justice officials] were not willing to apply for application renewals when they were not completely confident of their accuracy." And new applications were not forthcoming, the result being that, at least by the reckoning of one FBI manager who testified before the intelligence committees, "no FISA orders targeted against al Qaeda existed in 2001" at all. Not one. Non--Justice intelligence agencies quailed before Judge Lamberth, too, it should be noted. The National Security Agency, for example, "began to indicate on all reports of terrorism--related information that the content could not be shared with law enforcement personnel without FISA Court approval." It used to be, not so long ago, that NSA's pre--9/11 timidity about such eavesdropping was universally considered a terrible mistake. The agency's "cautious approach to any collection of intelligence relating to activities in the United States," the Joint Inquiry concluded, helped blind it to the nature of al Qaeda's threat. NSA "adopted a policy that avoided intercepting communications between individuals in the United States and foreign countries." What's more, NSA adopted this unfortunate policy "even though the collection of such communications is within its mission," even though "a significant portion of the communications collected by NSA" has always involved "U.S. persons or contain[ed] information about U.S. persons," and even though "the NSA and the FBI have the authority, in certain circumstances, to intercept . . . communications that have one communicant in the United States and one in a foreign country."....

Wiretaps fail to make dent in terror war; al Qaeda used messengers

The Bush administration's surveillance policy has failed to make a dent in the war against al Qaeda. U.S. law enforcement sources said that more than four years of surveillance by the National Security Agency has failed to capture any high-level al Qaeda operative in the United States. They said al Qaeda insurgents have long stopped using the phones and even computers to relay messages. Instead, they employ couriers. "They have been way ahead of us in communications security," a law enforcement source said. "At most, we have caught some riff-raff. But the heavies remain free and we believe some of them are in the United States." The law enforcement sources said the intelligence community has identified several al Qaeda agents believed to be in the United States. But the sources said the agents have not been found because of insufficient intelligence and even poor analysis. The assertions by the law enforcement sources dispute President Bush's claim that the government surveillance program has significantly helped in the fight against terrorism. The president said the program, which goes beyond the 1978 Foreign Intelligence Surveillance Act, limits eavesdropping to international phone calls. The sources provided guidelines to how the administration has employed the surveillance program. They said the National Security Agency in cooperation with the FBI was allowed to monitor the telephone calls and e-mails of any American believed to be in contact with a person abroad suspected of being linked to al Qaeda or other terrorist groups. At that point, the sources said, all of the communications of that American would be monitored, including calls made to others in the United States. The regulations under the administration's surveillance program do not require any court order. "The new regulations don't require this because it is considered an ongoing investigation," a source familiar with the program said....

Secret court modified wiretap requests

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval. A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined. The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications. "They wanted to expand the number of people they were eavesdropping on, and they didn't think they could get the warrants they needed from the court to monitor those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency" and "The Puzzle Palace: Inside America's Most Secret Intelligence Organization." "The FISA court has shown its displeasure by tinkering with these applications by the Bush administration." Bamford offered his speculation in an interview last week....

Are You Being Searched?

They know when you are sleeping, they know when you're awake, they know if you've been bad or good: They're the National Security Agency, and as The New York Times reported this Christmas Eve, they've been conducting analysis of telecommunications on a scale far beyond that of the targeted program of eavesdropping on domestic-to-international communications revealed earlier this month. Both programs remain shrouded in secrecy, but there's at least some reason to think that, under the logic of a Supreme Court ruling issued earlier this year, it's the more expansive one that will meet fewer constitutional obstacles. The defenses offered thus far of warrantless wiretaps on U.S.-to-foreign communications of persons with "links" to al-Qaeda have been, if not quite tortured, then at least subject to coercive tactics. Consider, for instance, the argument that Congress' authorization of military force to pursue terrorists in the wake of 9/11 gave President Bush the power to authorize such surveillance—even though Attorney General Alberto Gonzales has said the administration declined to seek such authority explicitly for fear of being turned down. The argument turns on a strained analogy to a 2004 Supreme Court ruling holding that the authorization of force included the authority to detain captured combatants, a fairly obvious natural concomitant of war, even though it did not explicitly mention "detention." The alternative would be to conclude, ludicrously, that Congress intended a "take no prisoners" War on Terror, in which enemies must either be released or shot on the spot. But administration apologists—take the hairpin curve in this logic slowly or you may crash—have parsed the ruling as entailing that Congress therefore endorsed anything short of putting a bullet in a suspected terrorist's brainpan. Prominent conservative blogger John Hinderaker turns his gaze on the Fourth Amendment's stipulation that governmental searches be "reasonable" and asks: Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists' cell phones and computers, and to learn what terrorist plots are being hatched by those persons?....

Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts

Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda. The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out. The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say. The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions. "It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."....