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Gonzales's Rationale on Phone Data Disputed Civil liberties lawyers yesterday questioned the legal basis that Attorney General Alberto R. Gonzales used Tuesday to justify the constitutionality of collecting domestic telephone records as part of the Bush administration's anti-terrorism program. While not confirming a USA Today report May 11 saying the National Security Agency has been collecting phone-call records of millions of Americans, Gonzales said such an activity would not require a court warrant under a 1979 Supreme Court ruling because it involved obtaining "business records." Under the 27-year-old court ruling in Smith v. Maryland , "those kinds of records do not enjoy Fourth Amendment protection," Gonzales said. "There is no reasonable expectation of privacy in those kinds of records," he added. Noting that Congress in 1986 passed the Electronic Communications Privacy Act in reaction to the Smith v. Maryland ruling to require court orders before turning over call records to the government, G. Jack King Jr. of the National Association of Criminal Defense Lawyers said Gonzales is correct in saying "the administration isn't violating the Fourth Amendment" but "he's failing to acknowledge that it is breaking" the 1986 law, which requires a court order "with a few very narrow exceptions." Kate Martin, director of the Center for National Security Studies, said, "The government is bound by the laws Congress passes, and when the attorney general doesn't even mention them, it is symptomatic of the government's profound disrespect for the rule of law." Gonzales, in addition to mentioning the Supreme Court case on Tuesday, said there "is a statutory right of privacy" but "with respect to business records there are a multiple number of ways that the government can have access to that information," including issuing national security letters, a type of administrative subpoena....
The Snooping Goes Beyond Phone Calls Furor and confusion over allegations that major phone companies have surrendered customer calling records to the National Security Agency continue to roil Washington. But if AT&T Inc. (T ) and possibly others have turned over records to the NSA, the phone giants represent only one of many commercial sources of personal data that the government seeks to "mine" for evidence of terrorist plots and other threats. The Departments of Justice, State, and Homeland Security spend millions annually to buy commercial databases that track Americans' finances, phone numbers, and biographical information, according to a report last month by the U.S. Government Accountability Office, the investigative arm of Congress. Often, the agencies and their contractors don't ensure the data's accuracy, the GAO found. Buying commercially collected data allows the government to dodge certain privacy rules. The Privacy Act of 1974 restricts how federal agencies may use such information and requires disclosure of what the government is doing with it. But the law applies only when the government is doing the data collecting. "Grabbing data wholesale from the private sector is the way agencies are getting around the requirements of the Privacy Act and the Fourth Amendment," says Jim Harper, director of information policy studies at the libertarian Cato Institute in Washington and a member of the Homeland Security Dept.'s Data Privacy & Integrity Advisory Committee. The Justice Dept. alone, which includes the FBI, spent $19 million in fiscal 2005 to obtain commercially gathered names, addresses, phone numbers, and other data, according to the GAO. The Justice Dept. obeys the Privacy Act and "protects information that might personally identify an individual," a spokesman says. Despite the GAO's findings, a Homeland Security spokesman denies that his agency purchases consumer records from private companies. The State Dept. didn't respond to requests for comment....
NSA rejected system that sifted phone data legally The National Security Agency developed a pilot program in the late 1990s that would have enabled it to gather and analyze huge amounts of communications data without running afoul of privacy laws. But after the Sept. 11 attacks, it shelved the project -- not because it failed to work but because of bureaucratic infighting and a sudden White House expansion of the agency's surveillance powers, according to several intelligence officials. The agency opted instead to adopt only one component of the program, which produced a far less capable and rigorous program. It remains the backbone of the NSA's warrantless surveillance efforts, tracking domestic and overseas communications from a vast databank of information, and monitoring selected calls. Four intelligence officials knowledgeable about the program agreed to discuss it with The Sun only if granted anonymity because of the sensitive nature of the subject. The program the NSA rejected, called ThinThread, was developed to handle greater volumes of information, partly in expectation of threats surrounding the millennium celebrations. Sources say it bundled four cutting-edge surveillance tools. In what intelligence experts describe as rigorous testing of ThinThread in 1998, the project succeeded at each task with high marks. For example, its ability to sort through huge amounts of data to find threat-related communications far surpassed the existing system, sources said. It also was able to rapidly separate and encrypt U.S.-related communications to ensure privacy....
Whistle-Blower's Evidence, Uncut Former AT&T technician Mark Klein is the key witness in the Electronic Frontier Foundation's class-action lawsuit against the telecommunications company, which alleges that AT&T cooperated in an illegal National Security Agency domestic surveillance program. In a public statement Klein issued last month, he described the NSA's visit to an AT&T office. In an older, less-public statement recently acquired by Wired News, Klein goes into additional details of his discovery of an alleged surveillance operation in an AT&T building in San Francisco. Klein supports his claim by attaching excerpts of three internal company documents: a Dec. 10, 2002, manual titled "Study Group 3, LGX/Splitter Wiring, San Francisco," a Jan. 13, 2003, document titled "SIMS, Splitter Cut-In and Test Procedure" and a second "Cut-In and Test Procedure" dated Jan. 24, 2003. Here we present Klein's statement in its entirety, with inline links to all of the document excerpts where he cited them. You can also download the complete file here (pdf). The full AT&T documents are filed under seal in federal court in San Francisco....
LISTENING IN A few days before the start of the confirmation hearings for General Michael Hayden, who has been nominated by President Bush to be the head of the C.I.A., I spoke to an official of the National Security Agency who recently retired. The official joined the N.S.A. in the mid-nineteen-seventies, soon after contentious congressional hearings that redefined the relationship between national security and the public’s right to privacy. The hearings, which revealed that, among other abuses, the N.S.A. had illegally intercepted telegrams to and from the United States, led to the passage of the 1978 Foreign Intelligence Surveillance Act, or FISA, to protect citizens from unlawful surveillance. “When I first came in, I heard from all my elders that ‘we’ll never be able to collect intelligence again,’” the former official said. “They’d whine, ‘Why do we have to report to oversight committees?’ ” But, over the next few years, he told me, the agency did find a way to operate within the law. “We built a system that protected national security and left people able to go home at night without worrying whether what they did that day was appropriate or legal.” After the attacks of September 11, 2001, it was clear that the intelligence community needed to get more aggressive and improve its performance. The Administration, deciding on a quick fix, returned to the tactic that got intelligence agencies in trouble thirty years ago: intercepting large numbers of electronic communications made by Americans. The N.S.A.’s carefully constructed rules were set aside. Last December, the Times reported that the N.S.A. was listening in on calls between people in the United States and people in other countries, and a few weeks ago USA Today reported that the agency was collecting information on millions of private domestic calls. A security consultant working with a major telecommunications carrier told me that his client set up a top-secret high-speed circuit between its main computer complex and Quantico, Virginia, the site of a government-intelligence computer center. This link provided direct access to the carrier’s network core—the critical area of its system, where all its data are stored. “What the companies are doing is worse than turning over records,” the consultant said. “They’re providing total access to all the data.”....
Gonzales: U.S. could track reporters' phone calls Attorney General Alberto Gonzales said Sunday he believes journalists can be prosecuted for publishing classified information, citing an obligation to national security. The nation's top law enforcer also said the government will not hesitate to track telephone calls made by reporters as part of a criminal leak investigation, but officials would not do so routinely and randomly. "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Gonzales said, referring to prosecutions. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected." In recent months, journalists have been called into court to testify as part of investigations into leaks, including the unauthorized disclosure of a CIA operative's name as well as the National Security Agency's warrantless eavesdropping program. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said she presumed that Gonzales was referring to the 1917 Espionage Act, which she said has never been interpreted to prosecute journalists who were providing information to the public....
Bush's 'Big Brother' Blunder George W. Bush’s warrantless phone data collection may not only violate the U.S. Constitution but expend so much money and manpower that America is made less safe – by diverting resources away from more practical steps, like inspecting cargo and hiring translators. Yet, because the operation is wrapped in layers and layers of secrecy – based on the dubious argument that al-Qaeda might not realize it’s being spied on – the public doesn’t know how much the project costs, who’s getting contracts and whether it does any good. So far, however, what administration officials and computer experts have been willing to describe shouldn’t give Americans much confidence that their trade-off of Fourth Amendment freedoms for a little extra safety is a particularly good deal. The project’s designers say the National Security Agency’s electronic warehousing of trillions of phone records from calls made by some 200 million Americans is intended to seek out “patterns” from conversations involving alleged terrorists and then to apply the digital outline to the stockpiled records. That search, presumably, then spits out the phone numbers of other callers in the United States who fit into the “patterns.” These computer-generated tips then go to the FBI, which may question the suspects or use other investigative strategies. There are, however, logical flaws to this “Big Brother” computer scheme, especially the idea that the project is likely to discern many usable “patterns” of phone calls that if applied to the population would detect much suspicious activity. The 9/11 hijackers, for instance, made very few substantive calls about their plot, recognizing the risk of electronic surveillance and preferring face-to-face meetings as a way to avoid detection, according to the 9/11 Commission Report....
F.B.I. Missed Many 'Red Flags' on Key Informer, Review Finds A Justice Department review released Wednesday found that the Federal Bureau of Investigation missed numerous "red flags" indicating that one of its own informants might be a longtime Chinese spy. The report urged broader changes at the F.B.I. in its handling of informants to prevent security breaches. As early as 1987, senior officials at the F.B.I. received word that Katrina Leung, a prominent Chinese-American businesswoman in Los Angeles who was also a bureau informant, might have had unauthorized contacts with Chinese officials, according to the review, conducted by the Justice Department inspector general's office. Despite warning signs through the 1990's, the F.B.I. continued using her as one of its most highly paid informants, paying her a total of $1.7 million, the report found. It was not until 2001 that the F.B.I. began actively investigating the possibility that Ms. Leung might be spying for China. That investigation also showed that she and her F.B.I. "handler" in Los Angeles, a veteran agent named James J. Smith, had been having a secret affair for 18 years. Mr. Smith, now retired from the F.B.I., pleaded guilty in 2004 to a charge of lying about their affair, and he received a $10,000 fine and probation. Ms. Leung, meanwhile, originally faced espionage-related charges for the unauthorized possession and copying of classified materials — which prosecutors charged she had taken surreptitiously from Mr. Smith's briefcase during their visits together. But a Los Angeles judge threw out the charges last year because of prosecutorial misconduct, and Ms. Leung ultimately agreed to plead guilty to lesser charges of lying to the government and making a false tax return. Like Mr. Smith, she also received probation and a $10,000 fine....
Hastert tells President Bush FBI raid was unconstitutional House Speaker Dennis Hastert (R-Ill.) told President Bush yesterday that he is concerned the Federal Bureau of Investigation’s (FBI) raid on Rep. William Jefferson’s (D-La.) congressional office over the weekend was a direct violation of the Constitution. Hastert raised concerns that the FBI’s unannounced seizure of congressional documents during a raid of Jefferson’s Rayburn office Saturday night violated the separation of powers between the two branches of government as they are defined by the Constitution. “The Speaker spoke candidly with the president about the Federal Bureau of Investigation’s raid over the weekend,” Hastert spokesman Ron Bonjean said yesterday in confirming his boss’s remarks. Hastert told reporters yesterday that he understands the reasons for the investigation but objected to the manner in which the raid was conducted. “My opinion is they took the wrong path,” Hastert said. “They need to back up, and we need to go from there.” Republican objections are independent of any facts in the corruption probe against Jefferson. Their complaints pertain solely to constitutional questions about the raid itself....
Man Killed by Air Marshals Was Shot 11 Times The federal air marshals who killed a mentally ill man at Miami International Airport in December shot him numerous times, according to an autopsy report released a day after state prosecutors declared the shooting "legally justified" and said no criminal charges would be filed. The autopsy, by the Miami-Dade County Medical Examiner Department, found that the man, Rigoberto Alpizar of Maitland, Fla., had been wounded 11 times — in the chest, abdomen, shoulder, hand, wrist and forearm. It was the first case of an air marshal opening fire since marshals became a common presence on flights after the terrorist attacks of Sept. 11, 2001. Mr. Alpizar, 44, frantically ran off his American Airlines flight before it was to depart for Orlando on Dec. 7, his backpack strapped to his chest. Law enforcement officials said at the time that the marshals fired on Mr. Alpizar because he claimed to have a bomb, but refused to provide details. In a report released Tuesday, the state attorney's office said both air marshals heard Mr. Alpizar yell that he had a bomb as he ran onto the jetway....
Voice Encryption May Draw U.S. Scrutiny Philip R. Zimmermann wants to protect online privacy. Who could object to that? He has found out once already. Trained as a computer scientist, he developed a program in 1991 called Pretty Good Privacy, or PGP, for scrambling and unscrambling e-mail messages. It won a following among privacy rights advocates and human rights groups working overseas — and a three-year federal criminal investigation into whether he had violated export restrictions on cryptographic software. The case was dropped in 1996, and Mr. Zimmermann, who lives in Menlo Park, Calif., started PGP Inc. to sell his software commercially. Now he is again inviting government scrutiny. On Sunday, he released a free Windows software program, Zfone, that encrypts a computer-to-computer voice conversation so both parties can be confident that no one is listening in. It became available earlier this year to Macintosh and Linux users of the system known as voice-over-Internet protocol, or VoIP. What sets Zfone apart from comparable systems is that it does not require a web of computers to hold the keys, or long numbers, used in most encryption schemes. Instead, it performs the key exchange inside the digital voice channel while the call is being set up, so no third party has the keys. Zfone's introduction comes as reports continue to emerge about the government's electronic surveillance efforts. A lawsuit by the Electronic Frontier Foundation, a privacy rights group, contends that AT&T has given the National Security Agency real-time access to Internet communications. In the wake of 9/11, there were calls for the government to institute new barriers to cryptography, to avoid its use in communications by enemies of the United States. Easily accessible cryptography for Internet calling may intensify that debate....
Air Marshal Says He Faced Retaliation for Bringing Up Security Issues The head of a group of Federal Air Marshals says the service is badly broken. "Right now we cannot protect the public," says Frank Terreri, an active duty air marshal who represents a group of 1,500 air marshals. "And not because we're not proficient, not that we're not capable, it's because federal air marshal management, along with the Department of Homeland Security, won't let us do our jobs." Terreri says air marshals are not able to work undercover because check-in and boarding procedures at airports make it impossible for air marshals to maintain their anonymity: "We're supposed to be undercover. But basically when everybody knows who you are, you're just the guys on the plane with the gun. Either they're gonna avoid you or overcome you, you're at a severe disadvantage." Terreri has spent three years trying to get the air marshals management to address these issues with no response. Instead he says they've retaliated against him, with four separate investigations, including one for misuse of his business card. "The items that he was being accused of were so surreal that they were obviously intending to terrorize the other air marshals into silence," says Tom Devine, an attorney with the Government Accountability Project. The project has petitioned the U.S. Office of Special Counsel to open an investigation into Terreri's allegations....
FBI Agents Rebel Over Mandatory Transfers The FBI's storied workforce is being dismantled and reassembled as Director Robert S. Mueller III tries to overhaul the hidebound agency. The result is a culture war between old and new, and older agents are rebelling. Among the disaffected are hundreds of agents in field offices around the country who are suddenly facing forced transfers to FBI headquarters. Many, including Michael Clark, are leaving. For 23 years, Clark was a loyal FBI man, rising to supervise a squad of agents in Connecticut working corporate fraud and public corruption cases. He helped send a former governor to prison. But then the FBI told him he had to move to Washington, and he found out his loyalty ran only so deep. Now a casualty of an agency that has become a construction zone, Clark is working for Otis Elevator Co. The agents argue that the upheaval is counterproductive. They say they have spent years cultivating contacts and relationships with state and local officials, which are not easily replaced. Middle managers, such as squad leaders and desk supervisors, often form the institutional memory of the bureau's 56 field offices. "Nobody is happy about it," said Clark, who recently left the bureau for the top security and investigative job at Otis. "You are going to lose a ton of experience." FBI agents long have fled for greener pastures, propelled by a pension system that allows them to retire with full benefits at 50 and offers little incentive to stay longer. High corporate demand for their skills since the Sept. 11 attacks has further swelled the ranks of retirees....
Arrest of illegals falls off Clinton pace The U.S. Border Patrol increased at a faster rate and apprehended more illegal aliens per year under President Clinton than under President Bush, according to statistics from a new, unpublished congressional research briefing report. Mr. Bush trails his predecessor on a series of measures of border security, says the briefing from the Congressional Research Service to the House Judiciary Committee, which was based on Department of Homeland Security data. Mr. Clinton increased the number of Border Patrol agents and pilots by 126 percent over his eight-year term, or an average of 642 per year, while Mr. Bush has averaged 411 new agents per year through 2005, for a total increase of 22.3 percent over his tenure. Although Mr. Bush last week said his administration has caught and returned 6 million illegal aliens, that's actually a drop from any five-year period during Mr. Clinton's administration, the briefing says. Meanwhile, the number of alien absconders has grown by more than 200,000 during Mr. Bush's term, reaching 536,644 in fiscal 2005; the number of completed fraud cases has dropped; and, until recently, detention beds hovered at or below the level Mr. Bush inherited from Mr. Clinton in 2001. "The sense of urgency that comes with deploying the National Guard is belied by the administration's consistent opposition to providing the necessary resources that our border security agencies need to do their jobs," said Sen. Robert C. Byrd of West Virginia, the top Democrat on the Senate Appropriations Committee....
Lack of prosecutions demoralizing Border Patrol The vast majority of people caught smuggling immigrants across the border near San Diego are never prosecuted for the offense, demoralizing the Border Patrol agents making the arrests, according to an internal document obtained by The Associated Press. “It is very difficult to keep agents' morale up when the laws they were told to uphold are being watered-down or not prosecuted,” the report says. The report offers a stark assessment of the situation at a Border Patrol station responsible for guarding 13 miles of mountainous border east of the city. Federal officials say it reflects a reality along the entire 2,000-mile border: Judges and federal attorneys are so swamped that only the most egregious smuggling cases are prosecuted. Only 6 percent of 289 suspected immigrant smugglers were prosecuted by the federal government for that offense in the year ending in September 2004, according to the report. Some were instead prosecuted for another crime. Other cases were declined by federal prosecutors, or the suspect was released by the Border Patrol. The report raises doubts about the value of tightening security along the Mexican border. President Bush wants to hire 6,000 more Border Patrol agents and dispatch up to 6,000 National Guardsmen. He did not mention overburdened courts in his Oval Office address Monday on immigration. The report was provided to the AP by the office of Rep. Darrell Issa, R-Calif., who has accused the chief federal prosecutor in San Diego of being lax on smuggling cases. Issa's office said it was an internal Border Patrol report written last August. It was unclear who wrote it. The lack of prosecutions is “demoralizing the agents and making a joke out of our system of justice,” said T.J. Bonner, president of the National Border Patrol Council, which represents agents. “It is certainly a weak link in our immigration-enforcement chain.”....
Virtual Wall Rises in U.S. Desert In the wee hours on April 25, a Predator B drone crashed into the desert floor near Tucson, Arizona, temporarily grounding one of the most expensive high-tech programs yet deployed in a burgeoning "virtual wall" that's taking shape on the U.S.-Mexico border. Since its launch in September 2005, the unmanned aerial vehicle, or UAV, had helped the U.S. Border Patrol capture 1,700 illegal immigrants attempting a crossing in the area, according to the agency, which is eager to replace the $14 million aircraft. It won't have long to wait. On Monday, President Bush vowed to bolster efforts to stem illegal immigration, including calling up some 6,000 National Guardsmen to assist the Border Patrol along the Mexico border. In addition, he signaled increased spending on technological measures aimed at monitoring high-traffic crossings like the one in Tucson. The U.S. Border Patrol already employs a host of devices to spot, track and apprehend potential migrants, human traffickers, drug smugglers and terrorists. They include drones like the one that crashed last month, video-surveillance cameras, motion sensors and X-ray and gamma-imaging equipment. The division utilizes the majority of its resources along the southern border with Mexico, particularly within the Border Patrol's Tucson Sector. It covers the desolate stretch of Arizona desert that has become the passage of choice for illegal crossers since the mid-1990s. Proponents of the virtual wall proposal, including Department of Homeland Security, say more investment is needed in all of the above technologies, with the possible addition of military technologies like satellite imaging....
Marine's shooting of youth still haunts border The family of a youth killed nine years ago today as he shepherded goats and a member of the Marine patrol that shot him aren't ready to meet, but agree their lives were forever joined and marred by the volatility that comes with deploying soldiers to help protect the nation's border with Mexico. As the Bush administration prepares to deploy 6,000 National Guardsmen to fight undocumented immigration, a cross on the edge of this rugged West Texas village stands as a reminder of how terribly wrong things can go. Federal officials have been imprecise in saying how the Guardsmen will be used, other than to say they will act in an array of support capacities. However, there's shared concern by those involved in the 1997 incident that if they aren't kept behind desks, lives may be at risk. "It is one shot, one kill," said former Marine Ronald Wieler, who was a member of the four-man surveillance mission. "It was instinct; if you are in the military and you are shot at, you are going to return fire," he said from his home in Michigan. Margarito Hernández tends the grave of his brother Esequiel Hernández Jr. A headstone marks the grave of Esequiel Hernández Jr., who was shot to death on the border near Redford by a U.S. Marine nine years ago. Wieler, 30, said he would prefer the government wait and send in new Border Patrol agents rather than soldiers trained for war. "It is not right," Wieler said of crossing combat training with American communities. "You have to follow civilian regulations, it is a whole new ball game." A white, angle iron cross marks the spot in the Big Bend country where on May 20, 1997, Esequiel Hernández Jr. 18, was killed. "You can't forget, you never forget," said his brother Margarito Hernández, who's now a police officer and has a son he named for Esequiel....