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Bush shuns Patriot Act requirement

When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers. The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates. Bush signed the bill with fanfare at a White House ceremony March 9, calling it ''a piece of legislation that's vital to win the war on terror and to protect the American people." But after the reporters and guests had left, the White House quietly issued a ''signing statement," an official document in which a president lays out his interpretation of a new law. In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law's requirements, he could withhold the information if he decided that disclosure would ''impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." Bush wrote: ''The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information ..." The statement represented the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law....

Two lawmakers demand Bush obey laws

Two senior Democratic House members yesterday demanded that President Bush withdraw his assertion that he can ignore portions of the USA Patriot Act calling on him to provide periodic reports to Congress on how new law-enforcement tactics are being used. Representatives Jane Harman of California and John Conyers of Michigan -- the ranking Democrats on the Intelligence and Judiciary Committees, respectively -- sent a letter to Attorney General Alberto Gonzales asking that Bush follow the law. ''We ask that the administration immediately rescind this statement and abide by the law," the lawmakers wrote. ''Many members who supported the final law did so based upon the guarantee of additional reporting and oversight. The administration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight." After some lawmakers raised concerns that the Patriot Act may pose a threat to civil liberties, Congress added a series of new oversight provisions to it. The law requires the Justice Department to keep track of how the FBI is using its expanded powers to monitor suspects and seize papers during counterterrorism investigations. The law required the administration to give Congress that information by certain dates. But after Bush signed the Patriot Act reauthorization on March 9, he issued a signing statement -- an official document in which a president lays out his understanding of the law -- asserting that he had the authority to withhold the information from Congress if he decided that disclosing it would interfere with foreign relations, national security, or executive branch operations. The signing statement, which went largely unnoted until The Boston Globe wrote about it last week, echoed a similar dispute three months ago when Congress passed a bill outlawing the torture of any detainee in US custody. Bush signed the antitorture law, but he also issued a statement asserting that he had the power, as commander in chief, to bypass the law if he decided that using aggressive interrogation techniques was necessary to protect national security. While previous presidents occasionally issued signing statements, Bush has done so more often, legal scholars say. The Bush White House has issued more than 100 signing statements that called into question more than 500 provisions of new laws....

FBI on trial, too, alongside Moussaoui

But after federal prosecutors finished laying out their case this week, even those who strongly supported an aggressive prosecution may wonder whether the trial has shed as much light on Moussaoui's culpability as it has on the missteps and mistakes by U.S. law enforcement agencies. The testimony of two prosecution witnesses, in particular, has brought renewed and unwelcome attention to how the FBI dealt with early warning signs. The government presentation, which ended Thursday, did not go smoothly. First, the prosecution nearly collapsed after the disclosure that a federal transportation lawyer working with the prosecutors had improperly coached aviation witnesses. Under cross-examination by Edward MacMahon, a court-appointed lawyer for Moussaoui, Samit acknowledged that after the attacks, he had written strongly worded reports saying his superiors had improperly blocked his attempts to investigate Moussaoui. He added that he was convinced that Moussaoui was a terrorist involved in an imminent hijacking plot. That senior FBI officials drag- ged their feet on investigating Moussaoui was not new. But it had never been presented as vividly as a reluctant Samit was obliged to do under cross-examination. He offered a devastating comment from a supervisor who said pressing too hard to obtain a warrant for Moussaoui would hurt his career. Samit also wrote that his superiors did not act because they were guilty of "criminal negligence" and were gambling that Moussaoui had little to offer. Samit was followed to the witness stand by Michael Rolince, a retired FBI counterterrorism supervisor who similarly recited a list of actions that the bureau could have taken if Moussaoui had told them about al Qaeda plans to take over planes with knives and fly into buildings. But when MacMahon began reading from a document detailing many suspicions about Moussaoui's intentions, Rolince interrupted, "Can I ask what document that's coming from?" MacMahon obliged, noting that it was an urgent memorandum written by Samit on Aug. 18, 2001, hoping to attract the attention of headquarters. Rolince had inadvertently underlined that the agent's suspicions had never risen to his attention....

Moussaoui's Guilt: Less Profound Than the FBI's Own Negligence?

FBI Special Agent Harry Samit's testimony yesterday at the Zacarias Moussaoui trial adds just one more piece of evidence to a growing list of incidents showing what Samit himself labeled "criminal negligence." Samit warned FBI headquarters on August 21, 2001, that Moussaoui wanted to hijack a plane "for the purpose of seizing control of the aircraft." Shortly thereafter he learned from French intelligence that Moussaoui had been a recruiter for a Chechyna group with ties to Osama bin Laden. Higher ups in the FBI blocked his efforts to get a search warrant, and edited out of his reports any reference to the French. Samit's testimony is but one of a growing list of incidents involving FBI's failure to take action on information it had received warning of an attack, while at the same time deliberately downplaying the possibilities of an attack. According to Bureau translators, agents learned in April that bin Laden was planning an attack involving hijacked airliners. Why this didn't sound the alarm, nobody knows. The matter disappeared into the bureaucracy. The role of the Bureau in muzzling Sibel Edmonds, the interpreter who tried to blow the whistle on the Bureau's translation operations pertaining to 9-11, is well known. The FBI and Justice Department fought to prevent Edmonds from giving public testimony and so far the courts have backed them up. The most startling occurrence involves the FBI's inability to detect the presence of the two hijackers who flew into Los Angles in 2000, and lived openly in San Diego. They socialized around town and even rented an apartment from the FBI's key informant in the Muslim community there....If the American public ever gets the entire truth on the events leading up to 911, we will most likely find that the problem wasn't the lack of a Patriot Act, but the incompetence and political correctness of our Federal officials.

Testers Slip Radioactive Materials Over Borders

Undercover Congressional investigators successfully smuggled into the United States enough radioactive material to make two dirty bombs, even after it set off alarms on radiation detectors installed at border checkpoints, a new report says. The test, conducted in December by the Government Accountability Office, demonstrated the mixed progress by the Department of Homeland Security, among other federal agencies, in trying to prevent terrorists from smuggling radioactive material into the United States. Nationally, at a cost so far of about $286 million, about 60 percent of all containerized commercial goods entering the United States by truck or ship and 77 percent of all private cars are now screened for radioactive material. But flaws in the inspection procedures and limitations with the equipment mean that nuclear materials may still be able to be sent illegally into the country through seaports or land borders, the study found. And because the program for installing radiation detectors is far behind schedule, many border crossing points, including many seaports, still have no detection equipment, the report says. In the test case, undercover investigators bought a small amount of radioactive material, most likely cesium. Then on Dec. 15, they drove across the border at undisclosed locations from Canada and Mexico, intentionally picking spots where the detection equipment had been installed. The alarms went off in both locations, and the investigators were pulled aside for questioning. In both cases, they showed the agents from the Customs and Border Protection agency forged import licenses from the Nuclear Regulatory Commission, based on an image of the real document they found on the Internet....

DOJ: NSA Could've Monitored Lawyers' Calls

The National Security Agency could have legally monitored ordinarily confidential communications between doctors and patients or attorneys and their clients, the Justice Department said Friday of its controversial warrantless surveillance program. Responding to questions from Congress, the department also said that it sees no prohibition to using information collected under the NSA's program in court. Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution," the department said in responses to questions from lawmakers released Friday evening. The department said that considerations, including whether classified information could be disclosed, must be weighed. In classified court filings, the Justice Department has responded to questions about whether information from the government's warrantless surveillance program was used to prosecute terror suspects. Defense attorneys are hoping to use that information to challenge the cases against their clients. Since the program was disclosed in December, some skeptical lawmakers have investigated the Bush administration's legal footing, raising questions including whether the program could capture doctor-patient and attorney-client communications. Such communications normally receive special legal protections. "Although the program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception," the department said....

At court, a terror case rife with tough issues

The case of Salim Ahmed Hamdan, Osama bin Laden's former driver in Afghanistan, has the potential to become one of the most important US Supreme Court decisions of this generation. It will test the scope of presidential power in the war on terror. It may clarify how detained Al Qaeda suspects are treated by the US. More broadly, it challenges the justices to further define the balance of power among the three branches of government during times of national emergency. But before the high court takes up those weighty issues of constitutional law, it must decide a more basic question: whether it has jurisdiction to hear the case. If the justices decide the case is not yet ripe for their review, Mr. Hamdan's appeal ends there, at least for the time being. That is the unusual posture surrounding the Hamdan case on the eve of oral arguments Tuesday - litigation so multilayered that the high court has taken the unusual step of allotting 90 minutes for oral arguments, a half hour more than usual....

Terrorist Surveillance Act Introduced in Senate

A bill recently introduced in the Senate would legalize warrantless wiretapping at the President's discretion. Senator Mike DeWine (R-OH) introduced the bill, popularly named the Terrorist Surveillance Act of 2006, on March 16, 2006. The bill was co-sponsored by Senators Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME). According to a press release by Senator DeWine, the bill would allow the President to authorize wiretapping on international communications by American citizens suspected of being affiliated with a terrorist organization. All the President has to have is probable cause and a belief that surveillance of the individual is necessary to protect national security. The provisions in this bill are sweeping. The President alone can determine what American citizens are potential threats to national security. There is no authorization under this bill from Congress or a court. The bill would allow the President to conduct surveillance for up to 45 days without a warrant, after which the President can reauthorize surveillance under one of two instances. The President must either obtain a warrant after compiling enough evidence to do so through the Foreign Intelligence Surveillance Court or the Attorney General must certify, under oath, when the President doesn’t have sufficient evidence for a warrant that continued surveillance is necessary. This bill would allow the President to conduct warrantless wiretapping in order to obtain the necessary evidence to get a warrant. This bill would allow unheard of Executive Power in conducting surveillance on Americans. Essentially, as long as the Attorney General accepts the decisions of the President, surveillance of Americans could go on indefinitely. These are the safeguards advocated by the sponsors of this bill....

The Letter of the Law

In the dark days after the Sept. 11, 2001, terrorist attacks, a small group of lawyers from the White House and the Justice Department began meeting to debate a number of novel legal strategies to help prevent another attack. Soon after, President Bush authorized the National Security Agency to begin conducting electronic eavesdropping on terrorism suspects in the United States, including American citizens, without court approval. Meeting in the FBI's state-of-the-art command center in the J. Edgar Hoover Building, the lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches of homes and businesses of terrorism suspects--also without court approval, one current and one former government official tell U.S. News. "There was a fair amount of discussion at Justice on the warrantless physical search issue," says a former senior FBI official. "Discussions about--if [the searches] happened--where would the information go, and would it taint cases." FBI Director Robert Mueller was alarmed by the proposal, the two officials said, and pushed back hard against it. "Mueller was personally very concerned," one official says, "not only because of the blowback issue but also because of the legal and constitutional questions raised by warrantless physical searches." FBI spokesman John Miller said none of the FBI's senior staff are aware of any such discussions and added that the bureau has not conducted "physical searches of any location without consent or a judicial order."....