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NSA whistleblower asks to testify

A former National Security Agency official wants to tell Congress about electronic intelligence programs that he asserts were carried out illegally by the NSA and the Defense Intelligence Agency. Russ Tice, a whistleblower who was dismissed from the NSA last year, stated in letters to the House and Senate intelligence committees that he is prepared to testify about highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the DIA. "I intend to report to Congress probable unlawful and unconstitutional acts conducted while I was an intelligence officer with the National Security Agency and with the Defense Intelligence Agency," Mr. Tice stated in the Dec. 16 letters, copies of which were obtained by The Washington Times. The letters were sent the same day that the New York Times revealed that the NSA was engaged in a clandestine eavesdropping program that bypassed the secret Foreign Intelligence Surveillance Act (FISA) court. The FISA court issues orders for targeted electronic and other surveillance by the government. In his Dec. 16 letter, Mr. Tice wrote that his testimony would be given under the provisions of the 1998 Intelligence Community Whistleblower Protection Act, which makes it legal for intelligence officials to disclose wrongdoing without being punished. The activities involved the NSA director, the NSA deputies chief of staff for air and space operations and the secretary of defense, he stated. "These ... acts were conducted via very highly sensitive intelligence programs and operations known as Special Access Programs," Mr. Tice said....

The spy plan's spoiler

JAMES B. COMEY CAN HARDLY be considered soft on terrorism. As deputy attorney general, he has been one of the Bush administration's chief prosecutors of the war on terror, pursuing accused bombers and terrorists from Riyadh to Chicago. So his refusal to approve the administration's warrantless wiretaps of Americans cannot simply be dismissed as the rantings of an Al Qaeda apologist. But Comey's objections, made in 2004 and first reported Sunday in the New York Times, do more than rob the president and his defenders of one of their favorite arguments. The article was based on the accounts of unnamed administration officials, and Comey isn't giving the reasons for his opposition to the National Security Agency's domestic surveillance program. But they're easy to guess. First, the program is unnecessary. There is already a special court to approve wiretaps of suspected terrorists, and it is notoriously obliging; in 2004, it received 1,758 requests for warrants and denied none of them. It often issues such warrants within hours and can approve them after the fact. (Details about the court's activities are secret.) And the Patriot Act, almost all of which has been renewed, gives law enforcement extraordinary powers to fight terrorists. Second, the program is probably illegal. The Foreign Intelligence Surveillance Act, which created that special court, specifically allows warrantless surveillance in the case of war, but for only 15 days after that war has been declared. If it had to conduct such surveillance for longer than that — Congress authorized the use of force, which is tantamount to a declaration of war, one week after 9/11 — the executive branch would need to change the law....

Surveillance Court Is Seeking Answers

The members of a secret federal court that oversees government surveillance in espionage and terrorism cases are scheduled to receive a classified briefing Monday from top Justice Department and intelligence officials about a controversial warrantless-eavesdropping program, according to sources familiar with the arrangements. Several judges on the Foreign Intelligence Surveillance Court said they want to hear directly from administration officials why President Bush believed he had the authority to order, without the court's permission, wiretapping of some phone calls and e-mails after the Sept. 11, 2001, attacks. Of serious concern to several judges is whether any information gleaned from intercepts by the National Security Agency was later used to gain their permission for wiretaps without the source being disclosed. The court is made up of 11 judges who, on a rotating basis, hear government applications for surveillance warrants. But only the presiding judge, currently Colleen Kollar-Kotelly, was notified of the government eavesdropping program. One judge, James Robertson, who also serves on the federal bench in Washington, resigned his seat on the surveillance court in protest shortly after the wiretapping was revealed by the New York Times in mid-December. Kollar-Kotelly began pressing for a closed government briefing for the remaining members of the court on Dec. 19, the day she learned of Robertson's concerns. Other judges wanted to know, as Robertson had, whether the administration had misled their court about its sources of information on possible terrorism suspects. Kollar-Kotelly had privately raised concerns in 2004 about the risk that the government could taint the integrity of the court's work by using information it gained via wiretapping to obtain warrants from judges under the Foreign Intelligence Surveillance Act....

Cheney strongly defends eavesdropping operation

Vice President Dick Cheney strongly defended a secret domestic eavesdropping operation in use since the September 11, 2001, attacks, saying it was not violating American civil liberties and has helped fend off potential terrorist attacks. "The enemy that struck on 9/11 is weakened and fractured yet it is still lethal and planning to hit us again. Either we are serious about fighting this war or we are not," Cheney said in remarks prepared for a speech at the Heritage Foundation think tank. Revelations that the National Security Agency was secretly monitoring phone calls between people in the United States and suspected al Qaeda followers abroad has sparked an outcry from Democrats and Republicans, with many lawmakers and rights groups questioning whether it violates the U.S. Constitution. Cheney, in speech excerpts released by the White House, called President George W. Bush's decision to intercept "a certain category of terrorist-linked international communications" a vital step. "There are no communications more important to the safety of the United States than those related to al Qaeda that have one end in the United States. If we'd been able to do this before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon," Cheney said. Cheney insisted that Bush was committed to protecting civil liberties. "He has made clear from the outset, both publicly and privately, that our duty to uphold the law of the land admits no exceptions in wartime," Cheney said....

Secret Surveillance May Have Occurred Before Authorization

Even before the White House formally authorized a secret program to spy on U.S. citizens without obtaining warrants, such eavesdropping was occurring and some of the information was being shared with the FBI, declassified correspondence and interviews with congressional and intelligence officials indicate. On Oct. 1, 2001, three weeks after the Sept. 11 terrorist attacks, Gen. Michael V. Hayden, who was running the National Security Agency at the time, told the House intelligence committee that the agency was broadening its surveillance authorities, according to a newly released letter sent to him that month by Minority Leader Nancy Pelosi (Calif.). Pelosi, the ranking Democrat on the committee, raised concerns in the letter, which was declassified with several redactions and made public yesterday by her staff. "I am concerned whether and to what extent the National Security Agency has received specific presidential authorization for the operations you are conducting," Pelosi wrote on Oct. 11, 2001. The substance of Hayden's response one week later, on Oct. 17, 2001, was redacted. The secret NSA program, developed in the immediate aftermath of the attacks on Washington and New York as a way to find any hidden al Qaeda operatives still in the United States, was authorized in October 2001, a senior administration official said. The president and senior aides have publicly discussed various aspects of the program, but neither the White House, the NSA nor the office of the director of national intelligence would say what day the president authorized it. Don Weber, an NSA spokesman, said in an e-mail yesterday that it would be inappropriate to "discuss details which could potentially cause harm to the safety of our nation." Pelosi's letter suggested that she and others on the committee first heard about expanded work by the NSA on Oct. 1, 2001, when Hayden briefed them on NSA activities....

Dueling Investigations

This one is going to be interesting. On the left, we have the outrage of those who are ever so conscientious of our civil liberties. On the right, we have those who believe civil liberties are meaningless if you are dead. The strategies are clear. One side will try to obfuscate a serious breach of national security. The other will make their case in a sea of biased reporting and politics at its worst. The word that would seem to apply here is “chutzpah.” It takes a lot of brass to create a scandal by disclosing classified information and then blaming those injured by your action. In spite of the spin of “domestic spying” and “big brother,” the truth is, those in Congress who should have been informed of the operation were, and that includes those who now spew such hypocritical outrage. Are those who protest too much, the ones who just may be in a whole lot of hot water? The opinions being regurgitated as to whether it was legal for the president to authorize electronic surveillance of suspected terrorists without a court order is astonishing. What seems abundantly clear is that no one really has a clue as to a definitive answer to this question. Fortunately for the president, there is clear precedent on his side to support his decision. More remarkable however are the positions themselves. On the Democrat side, there is complete indignation over the fact that residents in this country, citizens or not could be subjected to “electronic eavesdropping” without prior authorization from the court. No discussion as to legal status of those being monitored, the sensitive nature of the reasons for that surveillance or the immediate impact to national security, simply a total disregard for the relevancy for taking action and faux “outrage” because it happened....

Spy Crimes

aced with the most serious legal scandal of his administration, President Bush's impulse has been to stonewall. He has denied misleading the public when he insisted last year that any government wiretaps were conducted under court order, and his Justice Department has defended the legality of his domestic spying program in unequivocal terms. But the administration's legal defense is unconvincing--based on a willful misreading of Supreme Court precedents and congressional intentions. It should not excuse Bush's actions. And Congress must make sure that it does not. Many legal questions have subjective and uncertain answers. But the legality of Bush's domestic surveillance program is not one of them. The program almost certainly violates the Foreign Intelligence Surveillance Act (FISA), which prohibits "electronic surveillance" of "any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States," except as authorized by law. Since the administration has admitted that it intercepted telephone calls to and from American citizens in the United States without getting a court order, it clearly broke the law. Bush's most extreme defenders actually concede that he violated the law, but they insist that the president has inherent authority to ignore or break any law that restricts his authority as commander-in-chief under Article II of the Constitution. This is a radical extension of the arguments about unilateral presidential power championed by former Justice Department official John Yoo, a defender of the Bush surveillance program, and David Addington, Dick Cheney's chief of staff. But no court has ever suggested that the widely respected FISA law might be an unconstitutional infringement on the president's constitutional authority, and no president before Bush has had the audacity to press such an absurd claim....

Justices Order Padilla Terror Case Moved to Civilian Court

The U.S. Supreme Court allowed federal prosecutors yesterday to take over the case of "enemy combatant" Jose Padilla so he could face criminal terrorism charges, overruling a lower court and ending an unusual battle between the executive and judicial branches. In a one-page order, the justices authorized Padilla's transfer from a Navy brig to Justice Department custody. He will be brought before a federal judge in Miami. The Bush administration had requested the transfer, and government officials said they were pleased with the court's order. But yesterday's decision did not settle the larger issues raised by the Padilla case, including whether a U.S. citizen could be held in military custody without charges. Still, the order marked a major step in the odyssey of Padilla, whose arrest in Chicago in 2002 triggered a legal and philosophical battle over the government's power to detain Americans captured in this country. He was introduced to the public as a shadowy former gang member who converted to Islam and stood accused by top federal officials of plotting to detonate a radiological "dirty bomb." He was locked in the brig for more than three years. For much of that time, Padilla had no access to a lawyer, and he has never appeared in court to fight his detention. Now, the man whose face is known only from one old photo shown repeatedly on television and in newspapers will appear in a public courtroom in a case that has come to symbolize many of the conflicting arguments over the Bush administration's approach to fighting terrorism....

New documents may influence Patriot Act debate

When Congress reconvenes this month, one of the first chores facing lawmakers will be reauthorizing the expiring provisions of the USA Patriot Act, and newly disclosed documents could become a factor in the debate. Those opposing the current long-term reauthorization bill could have more rhetorical ammunition by the end of the month, as documents from a Freedom of Information Act lawsuit trickle out of FBI offices. The Electronic Privacy Information Center early last year filed a FOIA request but received few documents until a federal district judge in November ordered the FBI to produce 1,500 pages of documents every 15 days until the requests are fulfilled. EPIC is scheduled to receive the latest batch of documents Wednesday. The previous batch of documents, delivered shortly before Christmas, show that the FBI's office of general counsel had sent to the Intelligence Oversight Board several complaints about agents' snooping activities. The board is comprised of three members, is housed in the White House and reports to the president. Some of the complaints relate to how agents tracked their targets. One complaint, for example, showed concern over the tracking of a suspect's telephone calls. The agent continued the tracking even after someone other than the suspect started using the phone, said Marcia Hofmann, director of EPIC's open government project. Another document shows that an FBI agent received an order from the Foreign Intelligence Surveillance Court that allowed him to access addressing information on a suspect's e-mails, but he ultimately accessed more information in the e-mails than allowed by the court....

Government Web sites are keeping an eye on you

Dozens of federal agencies are tracking visits to U.S. government Web sites in violation of long-standing rules designed to protect online privacy, a CNET News.com investigation shows. From the Air Force to the Treasury Department, government agencies are using either "Web bugs" or permanent cookies to monitor their visitors' behavior, even though federal law restricts the practice. Some departments changed their practices this week after being contacted by CNET News.com. The Pentagon said it wasn't aware that its popular Defenselink.mil portal tracked visitors--in violation of a privacy notice--and said it would fix the problem. So did the Defense Threat Reduction Agency and the U.S. Chemical Safety and Hazard Investigation Board. "We were not aware of the cookies set to expire in 2016," a Pentagon representative said Wednesday. "All of the cookies we had set with WebTrends were to be strictly (temporary) cookies, and we are taking immediate action." WebTrends is a commercial Web-monitoring service. The practice of tracking Web visitors came under fire last week when the National Security Agency was found to use permanent cookies to monitor visitors, a practice it halted after inquiries from the Associated Press. The White House also was criticized last week for employing WebTrends' tracking mechanism that used a tiny GIF image....

Groups go to court over wiretap rule for Internet calls

A new federal regulation making it easier for law enforcement to tap Internet phone calls is being challenged in court. Privacy and technology groups asked the federal appeals court in Washington on Tuesday to overturn a Federal Communications Commission rule that expands wiretapping laws to cover Internet calls — or Voice over Internet Protocol (VoIP). Law enforcement agencies already can obtain a subpoena for the contents of VoIP calls from Internet access providers. But the FBI and others want the ability to capture the technology live and they want systems designed so it would be easy to do that. "The whole process of innovation on the Internet would be seriously damaged," said John Morris, staff counsel at the Center for Democracy and Technology. To meet the rule's requirements, Internet call providers would have to rewire networks at great cost, Morris said. In addition, there is fear the rule would stifle development of new technologies by placing more regulatory burdens on innovators....

Report Faults TSA Security Contracting

Transportation Security Administration officials rushing to hire airport passenger screeners after Sept. 11, 2001, may have violated contracting regulations by failing to track spending while telling a contractor to "do whatever was necessary" to meet congressional deadlines, according to a new government report. Soon after awarding a $104 million contract in February 2002 to hire 30,000 screeners, the under-staffed agency demanded significant changes to the contract that would eventually push the price of the deal to more than $741 million. TSA officials then moved forward with no planning "or adequate cost control," the report said, and they ignored warnings from contractor NCS Pearson Inc. that project costs had far exceeded the budget approved by Congress. "Generally, legislative deadlines, rather than detailed requirements or cost analyses, drove TSA's management decisions," said the report, which was prepared by the Office of Inspector General at the Homeland Security Department. The 32-page report is set to be released next week. A Pearson spokeswoman declined to comment on the report, saying she had not seen it. A TSA spokeswoman also said she had not seen the report and could not comment. The report's findings are based largely on the work of the Defense Contract Audit Agency, which called into question $303 million of the government's spending on the screener contract....

Shootings against Border Patrol escalating

More than two dozen shots were fired at Border Patrol agents from across the Rio Grande on Friday and Wednesday, marking a large increase in such shootings in this sector of the border, an agency official said. In fiscal year 2005, there were a total of six shootings, said Julio Salinas, spokesman for the Rio Grande Valley sector Border Patrol. The shootings reported Friday and Wednesday are the sixth and seventh shootings since fiscal year began Oct. 1, officials said. The increase in violence against agents is likely due to the effectiveness of the patrol’s enforcement, he said. The smugglers react violently to the Border Patrol’s presence, Salinas said. “We believe it is due to operations, due to the fact that we are a threat to the narcotic or alien smugglers, and that is one of the ways they react,” he said....

Fatal shooting of Mexican by agent at border probed

Police officials in San Diego are investigating the shooting death of a Mexican national by a U.S. Border Patrol agent, who fired a shot at the man after being targeted in a rock attack. Border Patrol spokesman Todd Fraser yesterday said the agent, an eight-year veteran whose name was withheld, came under attack Friday after approaching the man along fences on the U.S.-Mexico border near the San Ysidro, Calif., port of entry. He said the man was standing on the U.S. side of the fence at the time of the 7:25 p.m. encounter, but returned to Mexico after the shooting. Mr. Fraser said the unidentified agent fired in self-defense, trying to protect himself from what agents in the area describe as a "rocking," during which agents and their vehicles are pelted with large rocks or chunks of cement blocks. He said the agent, fearing for his life, fired one round at the man, who then fled back to Mexico. He said the agent was not sure at the time whether the man had been hit. The shooting victim has been identified by Mexican officials as Guillermo Martinez Rodriguez, an 18-year-old who checked himself into a Tijuana, Mexico, hospital after the incident but died four hours later. He reportedly was struck by a single gunshot to the back of his right shoulder....