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FBI and the USA Patriot Act in the spotlight as Congress considers how to fight terror

In another line of questioning, senators questioned why so much surveillance of Americans had taken place out of range of a judge. In a report to House leaders last Friday, the FBI disclosed that it had issued more than 9,200 National Security Letters (NSL) last year, covering more than 3,500 citizens or legal residents. An NSL is a tool provided by the USA Patriot Act that allows agents to access Internet records and business files of Americans without court approval. Moreover, individuals or groups targeted by such investigative tools are under a gag order not to discuss or disclose them. In fact, that figure does not cover the total number of NSLs - which may be much larger - because it does not include phone or Internet records, said Sen. Russ Feingold (D) of Wisconsin - an assertion that Mueller confirmed. The FBI reports only 155 applications for access to business records using Section 215 of the USA Patriot Act - a move that does require a court order. "It's a great disparity, and to me it points to a need for even greater protections on NSLs," said Senator Feingold, who voted against the USA Patriot Act. Senators also challenged the director to be more responsive to congressional concerns, especially on issues relating to the expansion of executive power....

F.B.I. Director Is Bombarded by Stinging Questions at Senate Hearing

The director of the Federal Bureau of Investigation, Robert S. Mueller III, came under sharp questioning from senators of both parties yesterday on matters that included slow progress in intelligence sharing and the effort to search the files of the late newspaper columnist Jack Anderson. In a hearing of the Senate Judiciary Committee, Senator Patrick J. Leahy of Vermont, the senior Democrat on the committee, cited what he said was evidence of more than 100 instances in which F.B.I. agents had improperly conducted surveillance of antiwar groups. He said the list included Quakers, a Catholic antiwar organization and the Raging Grannies, which Mr. Leahy sarcastically called "a scary group." While Mr. Leahy and his Democratic colleagues were most critical of Mr. Mueller, and by extension, the Bush administration, the F.B.I. director heard little praise from Republicans on the committee. Senator Arlen Specter, Republican of Pennsylvania and the panel's chairman, asked Mr. Mueller about a report issued last month by the Government Accountability Office, an investigative arm of Congress, that he said "raises questions about the adequacy of information sharing" between the F.B.I. and other agencies involved in counterterrorism. Senator Charles E. Grassley, Republican of Iowa, asked Mr. Mueller about reports that F.B.I. agents had "tried to trick" Mr. Anderson's 79-year-old widow into allowing a search of his files after being turned down by her son and the family's lawyer. And Senator John Cornyn, Republican of Texas, a close ally of the Bush administration, told the F.B.I. director that he was troubled by the agency's actions in the case of an Oregon lawyer who was arrested in connection with the Madrid train bombings in 2004 based on mistaken fingerprint evidence. After describing how a report had concluded that it was the "arrogance" of agents in the F.B.I. laboratory that led them to disregard doubts raised by Spanish fingerprint experts, Mr. Cornyn told Mr. Mueller, "I certainly hope that strong actions will be taken" if that was true....

Feds Go All Out to Kill Spy Suit

When the government told a court Friday that it wanted a class-action lawsuit regarding the National Security Agency's eavesdropping on Americans dismissed, its lawyers wielded one of the most powerful legal tools available to the executive branch -- the state secrets privilege. That privilege allows the government to tell a judge that a civil case may expose information detrimental to national security, and to ask that testimony or documents be hidden or a lawsuit dismissed. That extraordinary executive power was established in English common law and upheld in a 1953 Supreme Court case involving the fatal crash of a secret bomber. In this case, the government will be asking a federal judge in California to dismiss a lawsuit filed by the Electronic Frontier Foundation against AT&T for its alleged complicity in warrantless government surveillance of its customer's internet and telephone communications. The EFF alleges that AT&T gave the government access to a massive phone billing database and helped the NSA spy on its customers' internet use. But what exactly is the privilege, and how powerful is it? The state secrets privilege cannot be found in the U.S. Code, the code of federal regulations or the Constitution. Instead, it is a part of common law, the body of laws and precedents created over centuries of legal decisions. When the government believes that a civil suit might reveal secrets injurious to the country, the head of the appropriate government agency must review the matter and submit a signed affidavit attesting to the danger of the lawsuit or documents that might be disclosed. Judges almost invariably agree to such requests, according to William Weaver, a law professor and senior adviser to the National Security Whistleblowers Coalition. "It's like one of magic rings from The Lord of the Rings," Weaver said. "You slip it on and you are invisible -- you are now secret. "Ostensibly judges could have flexibility, but they have not done that," Weaver said. "There has never been an unsuccessful invocation of the state secrets privilege when national security is involved. The (EFF) suit is over."....

Data Show How Patriot Act Used

The FBI issued thousands of subpoenas to banks, phone companies and Internet providers last year, aggressively using a power enhanced under the Patriot Act to monitor the activities of U.S. citizens, Justice Department data released late Friday showed. The report given to members of Congress was the first to detail the government's use of a controversial form of administrative subpoena that has drawn fire because it can be issued by investigators without court oversight. The Justice Department report also disclosed that its use of electronic surveillance and search warrants in national security investigations jumped 15% in 2005. The report includes the first look at the use of what are known as national security letters, which let the FBI obtain phone logs, Internet traffic records, and bank and credit information about individuals without a court order. The Bush administration had fought the release of the information on grounds that it could imperil national security. But Congress ordered the release when it reauthorized portions of the Patriot Act this year. According to the new report, the FBI issued 9,254 national security letters in 2005, covering 3,501 U.S. citizens and legal foreign residents. The Justice Department said the data did not include what probably were thousands of additional letters issued to obtain more limited information about some individuals — such as a home address — or letters that were issued about targets who were in the U.S. illegally. The original Patriot Act, enacted weeks after the attacks on the World Trade Center and the Pentagon, made it easier for the FBI to issue the letters, and for the first time permitted agents based outside Washington to issue the letters. "These used to be fairly difficult to obtain, and now the authorities have been delegated very widely," said Michael Woods, former head of the FBI national-security law unit. "I think [the report] primarily shows that they are a lot easier to get." The Justice Department report also included an annual update on the number of warrants that the department had obtained through the Foreign Intelligence Surveillance Court, a secret federal court for intelligence and terrorism investigations. Applications for electronic surveillance and physical search warrants — which almost always are approved by the court — rose to 2,074 in 2005, compared with 1,758 in 2004. Last year's total was more than double the number sought in 2000. That court is the tribunal that the Bush administration has been bypassing in a warrantless domestic surveillance program since shortly after Sept. 11....

Bush challenges hundreds of laws

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution. Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research. Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional. Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power. But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override. Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work. Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register. In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed....