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Specialists doubt legality of wiretaps

Legal specialists yesterday questioned the accuracy of President Bush's sweeping contentions about the legality of his domestic spying program, particularly his assertion in his State of the Union speech on Tuesday that ''previous presidents have used the same constitutional authority I have." But legal specialists said yesterday that wiretaps ordered by previous presidents were put in place before warrants were required for investigations involving national security. Since Congress passed the law requiring warrants in 1978, no president but Bush has defied it, specialists said. Bush's contention that past presidents did the same thing as he has done ''is either intentionally misleading or downright false," said David Cole, a Georgetown University law professor. Only Bush has made the assertion that his wartime powers should supersede an act of Congress, Cole said. But Bush's comments in the State of the Union, which highlighted a week of election-style campaigning to defend the program, were almost entirely disputed yesterday by legal specialists across the ideological spectrum. For example, Bush strongly implied that if his program had been in place before the terrorist attacks, the government would have identified two of the hijackers who were placing international calls from inside the United States. But the 9/11 Commission found that the government had already grown suspicious about both of the hijackers in question before the attacks took place. Bureaucratic failures to share information about the hijackers, not ignorance of their existence, was the problem, the commission said. Moreover, Bush said in his address that ''appropriate members of Congress have been kept informed" about the program. But Senator Arlen Specter, a Pennsylvania Republican and chairman of the Judiciary Committee, has said that under law Bush was required to brief all members of the intelligence committees -- not just their leaders, as he did. Bush's assertion that his program was legal prompted a group of 14 prominent law professors, including both liberals and conservatives, to pen a joint letter objecting to his arguments. An expanded version of their letter rebutting Bush's assertions will be released today, the professors said. Richard Epstein, a University of Chicago law professor and a member of the group, said he believes the Supreme Court would reject Bush's assertions that his wartime powers authorized him to override the law. ''I find every bit of this legal argument disingenuous," Epstein said. ''The president's position is essentially that [Congress] is not doing the right thing, so I'm going to act on my own."....

Similar Wiretap Debate 30 Years Ago

An intense debate erupted during the Ford administration over the president's powers to eavesdrop without warrants to gather foreign intelligence, according to newly disclosed government documents. George H.W. Bush, Donald Rumsfeld and Dick Cheney are cited in the documents. The roughly 200 pages of historic records obtained by The Associated Press reflect a remarkably similar dispute between the White House and Congress fully three decades before President Bush's acknowledgment he authorized wiretaps without warrants of some Americans in terrorism investigations. "We strongly believe it is unwise for the president to concede any lack of constitutional power to authorize electronic surveillance for foreign intelligence purposes," wrote Robert Ingersoll, then-deputy secretary of state, in a 1976 memorandum to President Ford about the proposed bill on electronic surveillance. George H.W. Bush, then director of the CIA, wanted to ensure "no unnecessary diminution of collection of important foreign intelligence" under the proposal to require judges to approve terror wiretaps, according to a March 1976 memorandum he wrote to the Justice Department. Bush also complained that some major communications companies were unwilling to install government wiretaps without a judge's approval. Such a refusal "seriously affects the capabilities of the intelligence community," Bush wrote. In another document, Jack Marsh, a White House adviser, outlined options for Ford over the wiretap legislation. Marsh alerted Ford to objections by Bush as CIA director and by Rumsfeld, Henry Kissinger and Brent Scowcroft over the scope of a provision to require judicial oversight of wiretaps. At the time, Rumsfeld was defense secretary, Kissinger was secretary of state and Scowcroft was the White House national security adviser....

Senate intelligence chair endorses domestic spying

The Republican chairman of the Senate intelligence committee on Friday endorsed President George W. Bush's domestic surveillance program and said the White House was right to inform only a handful of lawmakers about its existence. In a letter to the top Republican and Democrat on the Senate Judiciary Committee, Sen. Pat Roberts of Kansas expressed "strong support" for a program that has raised an outcry from Democrats and some Republicans who believe Bush may have overstepped his authority. The panel is to hear testimony Monday from Attorney General Alberto Gonzales on the issue. Roberts said he believes Bush's use of warrantless surveillance is legal, necessary, reasonable and within the president's powers. "I am confident the president retains the constitutional authority to conduct 'warrantless' electronic surveillance," he said in the 19-page letter addressed to the judiciary panel's Republican chairman, Sen. Arlen Specter of Pennsylvania, and its senior Democrat, Sen. Patrick Leahy of Vermont....

How Do They Know Who Is a Terrorist?

Both law-enforcement and intelligence agencies fundamentally depend on informants. Informants in foreign intelligence are at best traitors to their respective countries. Informants in domestic crime issues are often paid, either in cash or in deals cut on crimes they have committed. Altogether, they are a sleazy lot. One point many people often don't understand is that CIA officers are not spies. They are "case officers." Their job is to recruit spies (informants) and funnel the information back to the analysts. Naturally, every country tries to depict its spies as noble people opposed to tyranny rather than people trapped and blackmailed, soreheads and neurotics or simply greedy opportunists. Often, informants working for money in domestic criminal cases will actually entrap some innocent person. That's how the sorry episode of Randy Weaver began, which ended with the deaths of his wife, his son and a deputy U.S. marshal in 1992. A paid informant badgered Weaver, who was hard up for money to feed his family, into illegally sawing off a shotgun, something any 8-year-old with a hacksaw and a vise can do. The idea was to arrest him, threaten him with a long prison sentence and then coerce him into becoming a federal informant. It was a federal cluster you-know-what from start to finish. This is a short preface to the current problem of domestic spying. The Bush administration says it only intercepts calls from terrorists. OK, how does the Bush administration know that somebody in Europe or the Middle East is a terrorist? Terrorists don't walk around the street with little name tags identifying them and their organization. They don't call people and say: "Hi, al-Qaeda calling. Can I interest you in a bomb-making kit?" The answer is an informant or some other country's intelligence agency. The first thing you know is that this person is a terrorist suspect. If anyone had proof that he was a real terrorist, he would be arrested. You can get some idea of how unreliable these suspect lists are by the instances of pop stars, U.S. senators, babies and other innocent people winding up on the U.S. terrorist watch list because of bureaucratic goof-ups....

Taps found clues, not Al Qaeda, FBI chief says

The National Security Agency's secret domestic spying hasn't nabbed any Al Qaeda agents in the U.S. since the Sept. 11 attacks, FBI Director Robert Mueller told Congress yesterday. Mueller told the Senate Intelligence Committee that his agents get "a number of leads from the NSA," but he made it clear Osama Bin Laden's henchmen weren't at the end of the trail. "I can say leads from that program have been valuable in identifying would-be terrorists in the United States, individuals who were providing material support to terrorists," Mueller testified. His assessment of the controversial NSA snooping appeared to undercut a key claim by President Bush. As recently as Wednesday, Bush defended bypassing courts in domestic spying by insisting that "one of the people making the call has to be Al Qaeda, suspected Al Qaeda and/or affiliate."....

Civilian surveillance 'no big deal'

US Defence Secretary Donald Rumsfeld today acknowledged that the Pentagon conducts "counter-surveillance" of civilians in the United States to protect military personnel and bases. But he said the program was "no big deal", dismissing concerns that it has led to domestic spying on anti-war activists and protests by a Pentagon unit called the Counter-Intelligence Field Activity. Speaking at the National Press Club, Mr Rumsfeld said the surveillance was a "perfectly understandable thing" because the Defence Department was responsible for protecting US forces and bases in the United States. "Given the assignment to do that, they decided to establish a program whereby they would be able to observe and do the kind of counter-surveillance to see who was taking pictures of military installations and sensitive activities," he said. "To do that, you obviously end up scooping up information, whether it is names or films or whatever to protect your base, and that information then comes into the databank," he said....

NSA's struggle to tap a wily foe

In all likelihood in the mid-1990s the National Security Agency was listening to the communications traffic flowing through the Umm Haraz satellite ground station outside Khartoum, Sudan. The reason: Osama bin Laden then lived nearby. According to an expert on the history of US eavesdropping, the NSA had identified the phone numbers used by Mr. bin Laden and key associates. Intercepts yielded a trove of data about the financing and organization of the fledgling Al Qaeda. Fast forward to 2006. Bin Laden has decamped for parts unknown, and the NSA has no Umm Haraz equivalent. Al Qaeda's communications no longer follow a well-worn track that's easy to intercept. It's in this context that the current controversy over the NSA's domestic eavesdropping activities might be seen, say some experts. The nation's biggest and most secretive intelligence agency is struggling to tap an adversary for whom the very nature of communication has changed....

Feds say cell phone tracking won't breach privacy

Federal prosecutors contended Wednesday that they want to know only the general location of a criminal suspect when they seek information about the whereabouts of the individual's cell telephone. The federal government is not seeking information so specific that it would breach a person's privacy rights, Assistant U.S. Attorney Martin Littlefield told U.S. Magistrate Judge Jonathan Feldman in a hearing. "We're not invading somebody's house," Littlefield said. Federal authorities have asked Feldman to approve an order allowing them to get information about which cell tower an individual's telephone made contact with. They insistthat they do not have to show there is probable cause that the suspect committed a crime — a legal threshold necessary for a search warrant, for instance. Authorities didn't reveal the nature of the criminal probe at the hearing. In recent months, several federal magistrate judges across the country have refused to sign similar orders. Monitoring a person through a cell phone violates the constitutional guarantee against unreasonable searches, they ruled....

Air Security's Latest "F"

The latest bin Laden tape was a grim reminder that terrorists are still probing for our weaknesses. So last month's 9/11 Commission report giving airline passenger-screening an "F" is a kick to the gut. Why do our airports remain vulnerable? It's not lack of resources: The Transportation Security Administration (TSA) earned that "F" despite spending nearly its entire $5.5 billion budget last year on passenger and baggage screening. Nor is screening the only problem area. Access to planes and the tarmac, either through the airport fence or by thousands of on-airport workers, remains a weak point. We still don't check most carry-on luggage for explosives. And the security measures we've added — baggage-inspection machines, more checkpoints — make for more crowds, a likely suicide-bombing target. Reason Foundation's year-long assessment of airport security concluded that these holes, and others, are due to three fundamental problems with TSA. First, TSA assumes all passengers are equally likely to be a threat. So all checked bags get the same costly screening; we all stand in the same endless lines, take off our shoes, etc. Second, TSA is grossly over-centralized and unable to handle the wide diversity of circumstances at 450 different airports. Rep. John Mica (R-Fla.), the chairman of the House aviation subcommittee, calls it a "Soviet-style, command-and-control approach" that "has been unable to match the changing requirements." Third, as both the provider of airport screening and its regulator, TSA has a built-in conflict of interest that allows it to grade and monitor its own performance. Here's the kind of thing that leads to: Shortly after it's creation, TSA paid a company to recruit new screeners; the taxpayers wound up spending $143,432 in recruitment costs for each screener — each screener — in the terrorism hotbed of Topeka, Kan. A bungling bureaucracy shouldn't police itself. We can, and must, do better....