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http://www.myrtlebeachonline.com/mld/sunne...on/13714704.htm

 

Be skeptical of administration spin

MOLLY IVINS

 

We can read in our daily newspapers that our government is about to launch a three-day propaganda blitz to convince us all that its secret program to spy on us is something we really want and need. "A campaign of high-profile national security events," reports The New York Times, follows "Karl Rove's blistering speech to national Republicans" about what a swell political issue this is for their party.

 

The question for journalists is how to report this. President Bush says it's a great idea and he's proud of the secret spy program? Attorney General Alberto Gonzales explains breaking the law is no problem? Dick Cheney says accept spying, or Osama bin Laden will get you?

 

Should we report it as though it were a campaign tactic, a straight political ploy: The Republicans say spying is good for you, but the Democrats say it is not - equal time to both sides?

 

Perhaps we have some obligation to try to sift through what it means that our government is spying on us in violation of the law and the Constitution.

 

Then there's the problem of reporting within the context of this administration's other propaganda efforts. "We do not torture," and, "We are not running a gulag of secret detention centers," are two of the more recent examples.

 

see link above for rest of story

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Top Ten Myths About the Illegal NSA Spying on Americans

 

ACLU | February 10 2006

 

MYTH: This is merely a “terrorist surveillance program.�

REALITY: When there is evidence a person may be a terrorist, both the criminal code and intelligence laws already authorize eavesdropping. This illegal program, however, allows electronic monitoring without any showing to a court that the person being spied upon in this country is a suspected terrorist. Plus, there already is a legitimate “terrorist surveillance program�—it’s called the “Foreign Intelligence Surveillance Act� (FISA). This federal law requires judicial approval of all electronic surveillance in this country in investigations to prevent “international terrorism� or “sabotage.� It unequivocally requires court approval of such surveillance, whether by the NSA or FBI. And it applies to any telephone or email to or from any American person in this country. FISA protects the constitutional rights of Americans, but if a person in the US were suspected of assisting al Qaeda then that would be the basis for getting a court order authorizing a wiretap under FISA, not for ignoring the law.

 

Without judicial oversight, there is no way to ensure that each person whose emails or phone calls are monitored by the NSA actually is a suspected terrorist. And, investigative reports that FBI intelligence agents have been flooded with worthless tips from the NSA about innocent schoolteachers and law abiding Americans cast serious doubt on this claim. And, as the New York Times noted: "The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged...�[1]

 

MYTH: The program is legal.

 

REALITY: The program violates the Fourth Amendment and FISA and will chill free speech. The Fourth Amendment protects the right of the people of the United States to be free from unreasonable searches and seizures and requires court approval except in an emergency. As a bipartisan group of legal experts—including Judge William Sessions, the former Director of the FBI under President Ronald Reagan—concluded after analyzing all the constitutional and statutory assertions of the administration: “the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance.�[2]

 

The Supreme Court has long held that the conversations of Americans cannot be seized under the Fourth Amendment without court oversight.[3] In a case involving warrantless wiretapping by President Nixon in the name of national security, the Supreme Court stressed that “Fourth Amendment freedoms cannot properly be guaranteed if domestic surveillance may be conducted solely within the discretion of the Executive Branch.�[4] In that case, the Keith case, the Court reaffirmed that “prior judicial approval is required for the type of domestic surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as Congress may prescribe.�[5]

 

Taking up the Court’s invitation, the Church Committee conducted extensive hearings and found that in the absence of any judicial check, the executive branch had spied on government employees, journalists, anti-war activists and others for political purposes. So, Congress passed FISA to provide the “exclusive� authority for the wiretapping of US persons in investigations to protect national security.[6] As the Senate Report noted, FISA “was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.�[7] By failing to follow the exclusive provisions governing wiretaps of Americans, the program violates both the Fourth Amendment and the letter and spirit of the federal law passed to protect and vindicate those rights.

 

MYTH: The Authorization for the Use of Military Force (AUMF) allows this.

 

REALITY: The resolution about using force in Afghanistan does not mention wiretaps and does not apply domestically, but FISA does--it requires a court order. When Congress passed FISA it not only provided that it authorizes the exclusive means to conduct foreign intelligence surveillance in the US but Congress also made it a federal crime for agents to wiretap without a court order unless authorized by statute. The administration now claims that the AUMF provides statutory authority to monitor Americans’ telephone calls and emails.

 

But the AUMF says absolutely nothing about electronic surveillance, and the Senate majority leader at the time, Tom Daschle, has noted that the drafters of the AUMF specifically considered and rejected language giving the president additional domestic powers.[8] Other Senators, from both sides of the aisle have concurred with Senator Daschle. As noted above, legal experts from across the spectrum have also written Congress to note that the AUMF does not authorize the NSA spying program.

 

In any event, Congress provided specific rules for wiretaps during war. FISA allows a limited 15-day exception to the requirement of court oversight of wiretaps in the US immediately following a declaration of war, but no more than that. In passing FISA, Congress sought to create a comprehensive statute to govern all possible justifications for wiretapping on these shores.

 

MYTH: The president has authority as commander in chief of the military to approve this program to spy on Americans without any court oversight.

 

REALITY: The Supreme Court recently found the administration’s claim of unlimited commander in chief powers during war to be an unacceptable effort to “condense power into a single branch of government,� contrary to the Constitution’s checks and balances.[9] As Justice Sandra Day O’Connor declared in this case focused on combatants captured on the battlefield, it is “clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.�[10]

 

The President’s power to act in the area of electronic spying is at its lowest ebb--not its zenith, as claimed by Attorney General Gonzales—because Congress has created comprehensive rules governing electronic surveillance in the US in times of war and to protect against international terrorism. When President Truman tried to seize the steel mills to support the war in Korea, the Supreme Court rebuked him, stating that: “It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is . . . to disrespect the whole legislative process and the constitutional division of authority between President and Congress.�[11]

 

And, the legislative history of FISA refutes the claims of the White House: “[E]ven if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted.�[12] As legal experts have established: “Congress did not implicitly authorize the NSA domestic spying program in the AUMF, and in fact expressly prohibited in FISA.�[13]

 

In the current crisis, not only did Congress specifically provide rules governing electronic surveillance on these shores to protect national security, it also reinforced those very rules after passing the AUMF. Within 40 days of the vote on the AUMF, Congress enacted 25 changes to FISA at the request of President Bush in the USA Patriot Act (Title II, including Section 215 relating to getting court approval for business or library records as well as Section 206 regarding getting court approval for multiple-point wiretaps), but none of these amendments struck the requirement that the president get judicial approval to conduct electronic surveillance of people in the U.S. Congress has made other changes to FISA in the past four years.[14] This legislative history only serves to reinforce the continuing legal obligation of the administration to follow FISA regardless of the authority to use military force in Afghanistan.

 

MYTH: The president has the power to say what the law is.

 

REALITY: The courts have this power in our system of government, and no person is above the law, not even the president, or the rule of law means nothing. Under our democracy’s separation of powers, the president cannot act as judge or legislator. It is high school civics 101 that it is the province of the courts to say what the law is, the role of Congress to make law and the responsibility of the president to faithfully execute the law, not re-write it.[15] The president’s actions violate these fundamental principles. This is especially so because the laws controlling government eavesdropping on Americans are well-established and clear. Numerous legal experts as well as non-partisan researchers agree that the president’s actions have violated these laws.[16]

 

The administration has claimed that Congress was briefed and thus approved of the program, but the few Members of Congress who were told about the program were prohibited from telling anyone else about it, and some of those members expressed serious concerns at the time.[17] Strong concerns about the propriety of the program were not limited to Congress. It has been reported that some of the federal judges on the FISA court who learned of the program expressed objections to its legality. Even members of the executive branch, beyond those who blew the whistle on the program, have objected to it. For example, it has been reported that Acting Attorney General James Comey indicated he was unwilling to give his approval to certain aspects of the program. And the program apparently was audited only in advance of the presidential election for fear that a new president would prosecute those who participated in the program.

 

Nevertheless, President Bush has arrogated to himself the power to unilaterally and secretly ignore laws passed by Congress, contravening the balance struck by a democratically enacted law. Under our constitutional democracy the president has the power to sign or veto laws—not to disregard them or interpret them away. The administration’s radical approach to presidential power is sadly reminiscent of disgraced President Nixon who said: “When the President does it, that means that it is not illegal.� The president has claimed that he is doing everything within his authority to protect against terrorism but seems to have no awareness that there are any limits on that authority. He took an oath to “faithfully execute� the laws of the United States, not just the ones he chooses to follow.

 

The administration has also claimed the right to do so based on a distorted view of history. For example, some have claimed that "President Clinton exercised the same authority" as President Bush, based on the testimony of Deputy Attorney General Jamie Gorelick back in 1994, but what she actually said was that FISA at that time restricted only electronic surveillance and not physical searches in intelligence investigations, which was correct. In the wake of the Aldrich Ames spying investigation, Gorelick testified that "the administration and the attorney general support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes... the Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation." In October 1994, Congress amended FISA to require court oversight of requests to conduct physical searches in intelligence cases. Accordingly, claims that the last president did the same thing are just political red herrings.

 

So too are the arguments made by the administration about prior presidents. The Church Committee thoroughly examined the rationales used by some former administrations to try to justify warrantless spying in the name of national security, noting that any system of secret police “may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood’ . . . Our investigation has confirmed that warning. We have seen segments of our government, in their attitudes and action, adopt tactics unworthy of a democracy... We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as ‘vacuum cleaners,’ sweeping in information about lawful activities of American citizens.� That is why, after its exhaustive examination of law and history, the Committee found: “There is no inherent constitutional authority for the President or any intelligence agency to violate the law.� It also stated �It is the intent of the Committee that statutes implementing these recommendations provide the exclusive legal authority for federal domestic security activities,� the gathering of foreign intelligence on these shores.[18]

 

MYTH: These warrantless wiretaps could never happen to you.

 

REALITY: Without court oversight, there is no way to ensure innocent people’s everyday communications are not monitored or catalogued by the NSA or other agencies. During the Cold War, the list of people considered by McCarthy to be “communists� was long and it was wrong in many notable instances. In the 1960s, J. Edgar Hoover secretly wiretapped the communications of the leader of the civil rights movement, the Reverend Martin Luther King Jr., under the guise of national security. Before FISA was passed, President Nixon personally approved wiretaps of cabinet members, government employees, journalists and other Americans he didn’t like or didn’t trust. These and other revelations led to the passage of FISA to protect Americans’ Fourth Amendment right to privacy in their conversations from this ever happening again, by requiring judicial oversight of all US wiretaps including those in the name of national security.

 

Without a court review, there is no way to protect innocent Americans from having their every conversation recorded. And, unfortunately, the Bush Administration has a track record of pursuing ineffective anti-terrorist dragnets that intrude on innocent Americans’ rights. Examples include certain airline passenger identity screening programs and the now-outlawed Total Information Awareness data-mining program. Other examples include recent disclosures that FBI or Defense Department agents are spying on Quakers and other pacifists, environmentalists, and vegetarians, all in the name of national security. Without a judicial check, the powerful electronic surveillance tools of the NSA can be trained on anyone.

 

The administration has repeatedly stated that the president is “mindful� of Americans’ civil liberties, but our system of government requires checks on power, not deference to those in power. The illegal NSA program of spying on Americans gives unlimited power to the President, whoever he or she may be, without constitutionally required checks on that power.[4]

 

MYTH: This illegal program could have prevented the 9/11 attacks.

 

REALITY: This is utter manipulation. Before 9/11, the federal government had gathered intelligence, without illegal NSA spying, about the looming attacks and at least two of the terrorists who perpetrated them, but failed to act. As we know from the 9/11 Commission report, the main problem was not gathering information, but translating it, interpreting it, sharing it and acting on it in a timely fashion.

 

Intelligence agencies were already overwhelmed by information – they had many thousands of hours of un-translated intercepts on bona fide terror suspects. There were at least a dozen intelligence reports or Presidential Daily Briefings that Osama bin Laden planned to use aircrafts as weapons to crash into buildings. The CIA missed opportunities to put the hijackers on a watch list, and even when the terrorism threat peaked level in the summer of 2001, the FBI, CIA and State Department failed to give vital information to the airlines or customers. The CIA, FBI, and INS failed to communicate threat information fully with each other or fully investigate suspected terrorists. Given the evidence of turf wars and bureaucratic dysfunction, the last thing the intelligence agencies needed before 9/11 was a volume of information about ordinary law abiding Americans to analyze on top of information gathered from suspected terrorists.

 

And the same is true today. The New York Times has reported that the FBI has been swamped by information provided by the NSA under Bush's directive, and that the information led to countless dead ends. One source stated: "It affected the FBI in the sense that they had to devote so many resources to tracking every single one of these leads, and, in my experience, they were all dry leads."[19] FBI agents have said that information from this program was useless and led to an enormous waste of resources and of the time of trained FBI investigators. Rank-and-file agents reportedly started to joke that the intelligence gleaned from the NSA spying was so unreliable that a new batch of tips meant more "calls to Pizza Hut."[20]

 

MYTH: This illegal program has saved thousands of lives.

 

REALITY: Because the program is secret the administration can assert anything it wants and then claim the need for secrecy excuses its failure to document these claims, let alone reveal all the times the program distracted intelligence agents with dead ends that wasted resources and trampled individual rights. Moreover, according to investigative reports, "The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks.‘ There were no imminent plots--not inside the United States,’ the former F.B.I. official said.’"[20]

 

Unfortunately, the Bush Administration has too often made claims that prey on Americans’ fears but are contradicted by the facts. To take just one example, the President claimed the Patriot Act led to charges against more than 400 terrorism suspects and 200 convictions on terrorism charges, a claim the Washington Post noted was “misleading at best.�[21] In fact, the Justice Department’s own data revealed that 39 people had been convicted of national security related crimes since September 11th but “[m]ost of the others were convicted of relatively minor crimes... that had nothing to do with terrorism.�[21] And many others where never convicted of doing anything wrong after being swept into terrorism investigations.

 

The only specific examples the administration has cited are inconclusive. First, it claimed that NSA surveillance led to plans by terrorists to set up a training camp on the West Coast, but it offered no evidence that its illegal spy program was necessary to uncover those plans and that it could not use court authorized surveillance to investigate them. Second, it claimed that the NSA surveillance helped prevent a plot to bring down the Brooklyn Bridge with a blowtorch, even though the administration previously claimed the Patriot Act prevented this.

 

Again, the Administration has offered no evidence that it would have failed to get a court order based on information linking the man to al Qaeda. The FISA court has declined only four out of the nearly 20,000 applications for search orders, and the government prevailed the only time it ever appealed to the FISA court of review.

 

MYTH: FISA takes too long.

 

REALITY: FISA allows wiretaps to begin immediately in emergencies, with three days afterward to go to court. Even without an emergency, FISA orders can be approved very quickly and FISA judges are available at all hours. The administration has argued about the need to move quickly to wiretap suspected terrorists, but the truth is that in any emergency, electronic surveillance of any suspected terrorist in the US can be started without getting advance approval from the FISA Court.

 

Originally, Congress provided the executive branch with one day of delay after such an emergency, to send someone to court to ask for approval but in 2001, at the administration’s request, Congress extended the delay to three days.[23] This provision of FISA obviously provides the administration with speed and agility, but it does require an after-the-fact check from the court. This procedure comports with the long-standing interpretation of the Fourth Amendment’s requirements. The FISA court, like every federal court in the country, also has emergency procedures and practices that allow it to be accessed for orders day and night by federal agents. In fact, in the most recent statistics, the FISA Court approved 1,758 surveillance applications in 2004, an all-time high–without denying a single application. If the court needed more judges to handle more applications for surveillance orders, the solution would be for Congress to expand the courts’ budget, not for the president to bypass the courts and this independent oversight.

 

MYTH: Only liberals disagree with the president about the program.

 

REALITY: The serious concerns that have been raised transcend party labels and reflect genuine and widespread worries about the lack of checks on the president’s claim of unlimited power to illegally spy on Americans without any independent oversight. Even some people involved in administering the program were troubled enough to try to inform Congress about it and, failing that, to tell the New York Times.

 

And numerous Republican Senators have expressed strong concerns about the program including Senators Chuck Hagel (R-NE), Olympia Snowe (R-ME), Arlen Specter (R-PA), Richard Lugar (R-IN), Susan Collins (R-ME), John Sununu (R-NH), Larry Craig (R-ID), Lindsey Graham (R-SC), and John McCain (R-AZ). Numerous conservative leaders like former Congressman Bob Barr, Grover Norquist, David Keene, Paul Weyrich and other principals in Patriots to Restore Checks and Balances, along with former officials like Judge William Sessions—who served as the Director of the FBI under President Reagan—Bruce Fein and former Nixon White House Counsel John Dean, have spoken out against the program. Conservative or libertarian scholars have expressed strong concerns, such as the American Enterprise Institute’s Norm Ornstein, CATO’s Robert Levy, and Chicago’s Professor Richard Epstein, as well as noted columnists like William Safire, George Will, and Steve Chapman. These voices join a chorus of concern from progressive leaders.

 

Unfortunately, the president’s State of the Union address sets up a false choice: accept this illegal spy program or sit back and wait to be hit again. As some in the FBI have noted, this program has wasted time and precious resources on dead ends. The law already permits the government to obtain a court issued wiretapping order that allows it to eavesdrop on those suspected of aiding al Qaeda. These court procedures are intended to protect against eavesdropping on innocent Americans. Every dollar spent on wild goose chases takes away resources from focusing on al Qaeda operatives. In short, this program makes us less safe and less free. And the program plainly violates the clear language and intent of FISA, and it is inconsistent with Americans’ fundamental First and Fourth Amendment rights.[6] 24 50 U.S.C. ‡ 1805.

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http://biz.yahoo.com/bw/060124/20060124005819.html?.v=1

 

KBR Awarded U.S. Department of Homeland Security Contingency Support Project for Emergency Support Services

Tuesday January 24, 12:03 pm ET

 

ARLINGTON, Va.--(BUSINESS WIRE)--Jan. 24, 2006--KBR announced today that the Department of Homeland Security's (DHS) U.S. Immigration and Customs Enforcement (ICE) component has awarded KBR an Indefinite Delivery/Indefinite Quantity (IDIQ) contingency contract to support ICE facilities in the event of an emergency. KBR is the engineering and construction subsidiary of Halliburton (NYSE:HAL - News).

 

 

With a maximum total value of $385 million over a five-year term, consisting of a one-year based period and four one-year options, the competitively awarded contract will be executed by the U.S. Army Corps of Engineers, Fort Worth District. KBR held the previous ICE contract from 2000 through 2005.

 

"We are especially gratified to be awarded this contract because it builds on our extremely strong track record in the arena of emergency operations support," said Bruce Stanski, executive vice president, KBR Government and Infrastructure. "We look forward to continuing the good work we have been doing to support our customer whenever and wherever we are needed."

 

The contract, which is effective immediately, provides for establishing temporary detention and processing capabilities to augment existing ICE Detention and Removal Operations (DRO) Program facilities in the event of an emergency influx of immigrants into the U.S., or to support the rapid development of new programs. The contingency support contract provides for planning and, if required, initiation of specific engineering, construction and logistics support tasks to establish, operate and maintain one or more expansion facilities.

 

The contract may also provide migrant detention support to other U.S. Government organizations in the event of an immigration emergency, as well as the development of a plan to react to a national emergency, such as a natural disaster. In the event of a natural disaster, the contractor could be tasked with providing housing for ICE personnel performing law enforcement functions in support of relief efforts.

 

ICE is one of three agencies that make up the Border and Transportation Security (BTS) Directorate of the DHS. The mission of the BTS Directorate is to secure the nation's air, land and sea borders. ICE, the largest investigative arm of the DHS, is responsible for identifying and shutting down vulnerabilities in the nation's border, economic, transportation and infrastructure security.

 

KBR is a global engineering, construction, technology and services company. Whether designing an LNG facility, serving as a defense industry contractor, or providing small capital construction, KBR delivers world-class service and performance. KBR employs more than 60,000 people in 43 countries around the world.

 

Halliburton, founded in 1919, is one of the world's largest providers of products and services to the petroleum and energy industries. The company serves its customers with a broad range of products and services through its Energy Services Group and KBR. Visit the company's World Wide Web site at http://www.halliburton.com.

 

 

Contact:

 

Halliburton Public Relations, Houston

Melissa Norcross, 713-759-2608

melissa.norcross@halliburton.com

 

 

DETENTION CAMPS?????

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http://www.kxly.com/common/getStory.asp?id=26857

ASSOCIATED PRESS

by (2/25/2003 3:52:00 PM)

 

Concentration Camps in Okanagon County?

 

Okanogan County Commissioner Dave Schulz says he's convinced his county is a designated home for a ``concentration camp'' in case of civil unrest.

Schulz says he has copies of documents, although he hasn't been able to confirm the rumor.

 

Federal officials say they have no idea where the commissioner got the notion of civilian detention camps.

 

A Federal Emergency Management Agency spokeswoman says it sounds like an urban legend and a Pentagon spokesman says he's not aware of any planned camps in Okanogan County or elsewhere.

 

Rumors of planned U.S. detention facilities appear on dozens of Web sites.

 

Schulz says he thinks the plan has been written in the event of a national emergency where martial law is necessary, and hopes it never becomes necessary.

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NONE DARE CALL IT HYPOTHETICAL

by Joe Sobran

 

In Washington, D.C., a local talk-radio host poses a

provocative question: What if international terrorists

were plotting a Super 9/11 that would kill not just 3,000

Americans -- mere child's play for these nuts -- but

might wipe 30,000, 300,000, or even "a city of 3,000,000

off the face of the planet"? Would the president then be

justified in a few technically illegal wiretaps to detect

them in time? The question practically answers itself.

 

Come to think of it, what if a bunch of raghead

Islamofascist suicide bombers got hold of a bomb that

would destroy the entire world, blasting the planet into

four or five huge chunks? And suppose the details of

their plot were known only to a few long-haired,

reefer-crazed, unpatriotic hippies who hated our way of

life and weren't talking. Wouldn't the president, in that

case, be duty-bound to use interrogation techniques

frowned on by the ACLU?

 

As Abraham Lincoln said, it may be necessary to

sacrifice one provision of the Constitution in order to

preserve the whole of it. The problem of saving the Union

becomes even more urgent when you face the chance that

various sections of the Union may wind up in different

parts of the solar system. (But there's always a silver

lining: The media would have to stop whining about global

warming.)

 

In the unhappy event that our Mother Earth were

violently sundered because President Bush didn't have

time to get court authorization to rough up a few hippies

-- for want of a nail, a horseshoe was lost, et cetera --

a few of the survivors, stranded on the wrong chunk,

would still have to live under a Republican

administration, listening to talk radio. And no doubt the

president would continue to insist that it was still

quite feasible to bring democracy to the Muslim world,

even if this now required an interplanetary mission. He

might also point out, with some justification, that

withdrawing U.S. troops from Iraq, as the cut-and-run

Democrats want to do, had just become an even greater

logistical difficulty than before.

 

Or, to think outside the box for a moment, consider

an even more chilling possibility: What if we had an

arrogant moron in the White House who neither understood

nor cared what the laws and the Constitution said, with

his party controlling both houses of Congress? I admit

this is a far-fetched example, but these are not normal

times. Just try to imagine it. We can't be too careful.

 

Such are the stakes in the current debate over

whether President Bush has acted ultra vires -- beyond

his legal powers, even in violation of the Constitution

he swore to uphold -- in ordering surveillance for what

is called national security. His defenders appeal to the

president's "implied powers," the right-wing answer to

liberalism's "penumbras formed by emanations" as a device

for infinitely elastic interpretations of plain words,

words their authors mistakenly assumed anyone could

understand, even an ordinary Yale graduate.

 

When the U.S. Constitution was written, Yale and

Harvard were still little Christian colleges, not yet big

universities; Benjamin Franklin was puttering with

electricity, which nobody foresaw would transform home

life, communication, and everything else; air travel was

hardly even a dream; modern weapons of mass murder

weren't even imagined; and the first version of KING KONG

hadn't yet been filmed.

 

How could this quaint document have relevance to our

world today? A fair question. Without treating it as Holy

Writ, we can recognize that it embodied a sound

principle: the division of power. Like an even older and

quainter document, the Magna Carta, its distant ancestor,

it recognized the danger of concentrating arbitrary power

in the hands of too few men, especially one man. The

narrow specifics differ, which is why each generation's

passions sound quaint to the next; but the principle is

always the same.

 

In a word, the Constitution is anti-monarchical.

This is why it provides for things like elections, which

we still have, and impeachments, which, though essential

protections, are all too rare. Elections without the real

threat of impeachment invite the abuse of power.

 

Monarchism -- which might be called political

idolatry or hero-worship -- is a perennial temptation,

even under the forms of a republic, as Bush and his

supporters illustrate, with their bizarre claims,

demands, and excuses for concentrated power. And the

temptation is most acute in time of war. This isn't just

an occasional case of "history repeating itself"; it's

the never-ending story of all politics.

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http://news.zdnet.com/2100-1035_22-6038770.html

 

E-tracking through your cell phone

 

There are times when knowing your exact location is useful, of course. It would be handy for a phone to help you find a gas station in a pinch, or bleep when you're about to take the wrong highway exit.

 

But the FBI and the U.S. Department of Justice have seized on the ability to locate a cellular customer and are using it to track Americans' whereabouts surreptitiously--even when there's no evidence of wrongdoing.

 

A pair of court decisions in the last few weeks shows that judges are split on whether this is legal. One federal magistrate judge in Wisconsin on Jan. 17 ruled it was unlawful, but another nine days later in Louisiana decided that it was perfectly OK.

 

This is an unfortunate outcome, not least because it shows that some judges are reluctant to hold federal agents and prosecutors to the letter of the law.

 

It's also unfortunate because it demonstrates that the FBI swore never to use a 1994 surveillance law to track cellular phones--but then, secretly, went ahead and did it, anyway.

 

When lobbying for that law, the Communications Assistance for Law Enforcement Act, then-FBI Director Louis Freeh assured the U.S. Senate that location surveillance would never take place unless there was evidence of wrongdoing.

 

"It does not include any information which might disclose the general location of a mobile facility or service, beyond that associated with the area code or exchange of the facility or service," Freeh testified. "There is no intent whatsoever, with reference to this term, to acquire anything that could properly be called 'tracking' information."

 

So much for promises from politicians.

 

Nobody is saying, of course, that police should be denied the ability to locate a felon-on-the-run in an actual emergency. Current law allows agents to do precisely that because there would be ample evidence of wrongdoing, or probable cause, that they can present to a judge.

 

The problem is that the Justice Department's current official position--a flip-flop from its previous official position--says police should be able to secretly monitor your whereabouts as long as they claim that tracking could possibly be "relevant" to some investigation. Not only is that insufficiently privacy-protective, it doesn't track what the law actually says.

 

Some judges are courageous enough to point this out. U.S. Magistrate Judge William Callahan in Wisconsin last month denied the Justice Department's request to track a suspected drug user through his Cingular Wireless phone. The feds were helping out on behalf of the Wisconsin narcotics bureau, which claimed in court documents that "by obtaining cell site information for (the target's) cellular telephone, it may be able to determine (his) source for cocaine."

 

Citing Freeh's testimony, Callahan said it was abundantly clear that "the language which found its way into the law was predicated on the director's assertion to Congress that (the law) would not be used to secure location information for the cellular phone user." But, Callahan noted, prosecutors are relying on "precisely" that language today.

 

"I cannot find any contemporaneous understanding by either Director Freeh or the Congress that the government had the capability that it now has to ascertain the location of a person using a cell phone," Callahan added.

 

It's true that in the case before Callahan, prosecutors were asking for the location of Cingular cell towers being used by the cell phone only when calls were being made, not when the handset was idle. That yields only a rough approximation of a location, depending on how many towers there are nearby.

 

But given the Justice Department's logic, there's nothing stopping prosecutors from asking for more data next time. Thanks to regulations from the Federal Communications Commission, wireless handsets must know their locations within a few hundred feet, regardless of whether their owner wants it. Some newer gadgets, such as the Hewlett-Packard's iPaq hw6515, have built-in GPS (Global Positioning System) receivers that are far more precise.

 

Those detailed data streams are potentially available to police. In one court document (click here for PDF), U.S. Attorney Michael Garcia claims, "A cell phone user voluntarily transmits a signal to the cell phone company and thereby assumes the risk that the cell phone provider will reveal to law enforcement the cell site information."

 

Consider the implications. If you voluntarily transmit your exact GPS-derived location to a cellular provider--so you can get information returned about nearby restaurants or driving directions--the Justice Department apparently believes that your location should be available without a warrant.

 

That's not what Louis Freeh promised, that's not what Congress wrote, and that's not what a majority of federal judges who have looked at this have decided. But for now, there's nothing stopping prosecutors from shopping around and finding a sympathetic judge who will find some way to interpret the law in their favor next time.

 

biography Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

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  • 2 weeks later...

Domestic spying more widespread than thought

 

By Joe Baker, Senior Editor Print this page

 

 

Government surveillance of private individuals is more pervasive and detailed than previously thought. Investigative reporter Wayne Madsen tells us that the National Security Agency (NSA), at the center of the wiretap scandal, has expanded its surveillance of journalists that the administration claims have received classified information.

The NSA has built a database, part of the intelligence community’s “Denial and Deception� operations that now holds transcripts of phone calls and e-mails among journalists and their sources and associates. The database formerly was known as “Firstfruit� until Madsen exposed it last May.

 

Sources within the NSA told Madsen the database contains signals intelligence intercepts in violation of the Foreign Intelligence Surveillance Act (FISA), U.S. Signals Intelligence Directive 18 and the Fourth Amendment. These intercepts involve communications between certain individuals and journalists like James Bamford, James Risen, Seymour Hersh, Bill Gertz, Madsen and several others.

 

In addition to the NSA wiretap program, it was recently revealed that the Pentagon is running its own eavesdropping operation, and there also is a top-secret wiretap program about which no information is available except a reference to it by a government employee.

 

Along with these developments, top administration officials have pointed to the need to challenge any news they believe undercuts Bush’s actions in attempting to defeat terrorists. Defense Secretary Donald Rumsfeld referred to “news informers.�

 

Add to that the announcement in January that the Army Corps of Engineers gave Halliburton subsidiary Kellogg Brown & Root a contract for $385 million to build detention centers (read concentration camps) at locations in the U.S. These centers supposedly are to deal with “an emergency influx of immigrants into the U.S., or to support the rapid development of new programs.�

 

The New York Times later reported “KBR would build the centers for the Homeland Security Department for an unexpected influx of immigrants, to house people in the event of a natural disaster or for new programs that require additional detention space.�

 

Rep. Henry Waxman, D-Calif., commented: “It’s hard to believe that the administration has decided to entrust Halliburton with even more taxpayer dollars.�

 

But what might the “new programs� be? What kind of programs would call for a major expansion of detention centers, each able to hold 5,000 people? A spokesman for the Immigration and Customs Enforcement would not elaborate.

 

Independent journalist Peter Dale Scott speculated that the “detention centers could be used to detain American citizens if the Bush administration were to declare martial law.� That could include journalists and dissidents.

 

Scott recalled that in the Reagan administration, Oliver North, then an aide to the National Security Council, organized a plan that envisioned FEMA, the Federal Emergency Management Agency, rounding up and corralling 400,000 “refugees� in the event of what he called “uncontrolled population movements� over the Mexican border into the U.S.

 

Journalist Maureen Farrell noted that because “another terror attack is all but certain, it seems far more likely that the centers would be used for post-9/11-type detentions of immigrants rather than a sudden deluge� of immigrants flooding across the border.

 

Daniel Ellsberg, who made public the “Pentagon Papers� in the Vietnam War era, said: “Almost certainly, this is preparation for a roundup after the next 9/11 for Mideasterners, Muslims and possibly dissenters. They’ve already done this on a smaller scale, with the ‘special registration detentions’ of immigrant men from Muslim countries, and with Guantanamo.�

 

The U.S. Army also posted a related item on its Web site. The Army posted a notice regarding the Pentagon’s Civilian Inmate Labor Program. It furnishes “Army policy and guidance for setting up civilian inmate labor programs and civilian prison camps on Army installations.�

 

The timing of the posting—in the last few weeks—could be just coincidence, but the posting’s reference to a “rapid action revision� and the KBR contract’s expectation of “rapid development of new programs� has caused questions about the sudden need for such urgency.

 

More attention is being focused on these developments because of earlier policies of the Bush administration to use the Pentagon in “counter-terrorism� operations inside the U.S. Even though such actions are banned by the Posse Comitatus Act, prohibiting military involvement in domestic law enforcement, the Pentagon has expanded its activities beyond previous limits, such as its part in domestic surveillance operations.

 

Since 9/11, The Washington Post says, the Defense Department has been setting up new agencies to gather and analyze intelligence inside this country. A 2001 Defense Department memo became public in 2005. In it, the Army’s top intelligence officer wrote: “Contrary to popular belief, there is no absolute ban on [military] intelligence components collecting U.S. person information.�

 

The memo made a distinction between “collecting� and “receiving� information and declared: “Military intelligence may receive information from anyone, anytime.�

 

The Pentagon also is pushing for legislation that would make an exception to the Privacy Act, which would allow the FBI and others to share citizen information with the Pentagon, CIA and other intelligence agencies.

 

On Feb. 15, The Post reported the National Counterterrorism Center’s central database contains the names of 325,000 people, said to be terrorist suspects. That’s four times as many names as were in the database in the fall of 2003, and includes input from the NSA’s wiretap program.

 

From the March 1-7, 2006, issue

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FBI Acknowledges: Journalists' Phone Records are Fair Game

May 15, 2006 7:18 PM

 

Brian Ross and Richard Esposito Report:

 

The FBI acknowledged late Monday that it is increasingly seeking reporters' phone records in leak investigations.

 

"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official.

 

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.

 

The official said our blotter item was wrong to suggest that ABC News phone calls were being "tracked."

 

"Think of it more as backtracking," said a senior federal official.

 

But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA.

 

In a statement, the FBI press office said its leak investigations begin with the examination of government phone records.

 

"The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information," the statement said.

 

Officials say that means that phone records of reporters will be sought if government records are not sufficient.

 

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

 

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

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tell me why they shut down internal investigations on this? bush wouldnt allow clearences to curtain documents...

 

thats like telling the cops (that have a warrant) they can come in, but they just can't go in your room.

 

 

put it this way...keep people scared of terrorists.....and you can do anything in the name od safety...even take over the world....

 

hitler, stalin, and bin ladin knew/ know it....

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yup....i watch the news and it's funny as hell how the knews brainwashes people....especially fox, cbs, and abc.... funny thing is they are all owned by larger companies.....so of course they are going to try to sway public opinion into thinking it's okay because it's in their best interest....

 

"better to collect a little information rather than your corpses"....fox news broadcaster...believe it or not...lol

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Re: Everyone Knows They're SPying....

 

Secret court may end up hearing AT&T illegal surveillance lawsuit

Legislation backed by White House would allow transfer

 

 

A lawsuit in San Francisco federal court accusing AT&T of illegally collaborating with the Bush administration's electronic surveillance of U.S. citizens would be transferred to a secret court accessible only to the government under new legislation backed by the White House.

 

A provision of the bill introduced Thursday by Sen. Arlen Specter, R-Pa., the Senate Judiciary Committee chairman, would allow the government to move the AT&T case and all other lawsuits involving the surveillance program to the Foreign Intelligence Surveillance Court of Review in Washington.

 

The three-judge court meets behind closed doors and hears arguments only from the Justice Department. The court was created in 1978 to consider government appeals from another secret tribunal that reviews requests for wiretaps and searches of foreign agents. Thousands of such requests were uniformly granted until 2003, when the tribunal rejected a Bush administration claim of new surveillance powers under the USA Patriot Act.

 

The Court of Review overturned that decision in the only ruling it has ever issued. Civil-liberties groups were allowed to file written arguments in the case but were denied access to the hearing and to the government's filings.

 

"The government has a stacked deck and may be the only meaningful party in the litigation'' if Specter's bill becomes law, Kevin Bankston, a lawyer with the Electronic Frontier Foundation in San Francisco, said Friday.

 

The foundation represents AT&T customers who sued in January over the company's alleged collusion with the National Security Agency surveillance program. That case was the first of about 30 suits filed around the nation challenging the program and telecommunications companies' participation in it.

 

The San Francisco suit accuses AT&T of giving the federal agency access to the firm's telephone and e-mail networks and database, allowing the agency to compile a trove of records that it could scan for possible terrorist contacts.

 

President Bush has acknowledged ordering the National Security Agency to intercept communications between Americans and suspected terrorists abroad without warrants required by the 1978 Foreign Intelligence Surveillance Act. Bush has insisted that he has the power as commander-in-chief to authorize the surveillance without congressional approval.

 

Specter's bill, which he negotiated with the administration, would allow the surveillance court of review to rule on the constitutionality of the monitoring program if Bush sought a decision. Specter said the president has promised to do so if the bill passes in its current form.

 

The provision allowing transfer of the AT&T case and similar suits to the same court received relatively little attention when the bill was unveiled Thursday. Specter told reporters that the administration had asked for the provision. He also said he considered it a "vastly preferable" solution to having several suits scattered around the country.

 

Bankston disagreed, saying justice is better served when different courts weigh in with a variety of perspectives that can be addressed on appeal. "It is the Supreme Court's role to find out what the law of the land is, not some secret court in Washington, D.C.,'' he said.

 

The Justice Department has already asked federal judges to dismiss suits challenging the surveillance program, arguing that the cases would threaten national security if allowed to proceed. Among the secrets that the department says cannot be revealed are whether AT&T and other companies participated in the program. Chief U.S. District Judge Vaughn Walker heard arguments in the AT&T case last month and has not yet ruled on the government's motion.

 

Under Specter's bill, a claim by the attorney general that a lawsuit would harm national security would require that the case be transferred to the secret court. That court would have the power to determine not only the legality of the surveillance program but also whether the plaintiffs can show that they are being harmed by the program, giving them legal standing to challenge it.

 

Douglas Kmiec, a Pepperdine University law professor and former Justice Department official under President Ronald Reagan, said Congress has the authority to redirect suits from one court to another because the Constitution gives it the power to establish all federal courts below the Supreme Court.

 

"It has always been assumed and held that they can route litigation to the court that they perceive best able to handle the workload and the particular substance'' of the cases, Kmiec said. He also said Congress could reasonably conclude that the benefit of having a single court, with expertise in surveillance issues, resolve the constitutionality of the program was more important than the effect on private lawsuits.

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Re: Everyone Knows They're SPying....

 

Specter's bill, which he negotiated with the administration, would allow the surveillance court of review to rule on the constitutionality of the monitoring program if Bush sought a decision. Specter said the president has promised to do so if the bill passes in its current form.

 

 

I thought ultimately the Supreme Court ruled on the constitutionality on an issue - now we have a secret court deciding?

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