Preemptive Strikes Against Protest at RNC

In the months leading up to the Republican National Convention, the FBI-led Minneapolis Joint Terrorist Task Force actively recruited people to infiltrate vegan groups and other leftist organizations and report back about their activities. On May 21, the Minneapolis City Pages ran a recruiting story called "Moles Wanted." Law enforcement sought to preempt lawful protest against the policies of the Bush administration during the convention.

Since Friday, local police and sheriffs, working with the FBI, conducted preemptive searches, seizures and arrests. Glenn Greenwald described the targeting of protestors by "teams of 25-30 officers in riot gear, with semi-automatic weapons drawn, entering homes of those suspected of planning protests, handcuffing and forcing them to lay on the floor, while law enforcement officers searched the homes, seizing computers, journals, and political pamphlets." Journalists were detained at gunpoint and lawyers representing detainees were handcuffed at the scene.

"I was personally present and saw officers with riot gear and assault rifles, pump action shotguns," said Bruce Nestor, the President of the Minnesota chapter of the National Lawyers Guild, who is representing several of the protestors. "The neighbor of one of the houses had a gun pointed in her face when she walked out on her back porch to see what was going on. There were children in all of these houses, and children were held at gunpoint."

The raids targeted members of "Food Not Bombs," an anti-war, anti-authoritarian protest group that provides free vegetarian meals every week in hundreds of cities all over the world. They served meals to rescue workers at the World Trade Center after 9/11 and to nearly 20 communities in the Gulf region following Hurricane Katrina.

Also targeted were members of I-Witness Video, a media watchdog group that monitors the police to protect civil liberties. The group worked with the National Lawyers Guild to gain the dismissal of charges or acquittals of about 400 of the 1,800 who were arrested during the 2004 Republican National Convention in New York. Preemptive policing was used at that time as well. Police infiltrated protest groups in advance of the convention.

Nestor said that no violence or illegality has taken place to justify the arrests. "Seizing boxes of political literature shows the motive of these raids was political," he said.

Further evidence the political nature of the police action was the boarding up of the Convergence Center, where protestors had gathered, for unspecified code violations. St. Paul City Council member David Thune said, "Normally we only board up buildings that are vacant and ramshackle." Thune and fellow City Council member Elizabeth Glidden decried "actions that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights."

"So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protestors who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do," Greenwald wrote on Salon.

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with "conspiracy to commit riot," a rarely-used statute that is so vague, it is probably unconstitutional. Nestor said it "basically criminalizes political advocacy."

On Sunday, the National Lawyers Guild and Communities United Against Police Brutality filed an emergency motion requesting an injunction to prevent police from seizing video equipment and cellular phones used to document their conduct.

During Monday's demonstration, law enforcement officers used pepper spray, rubber bullets, concussion grenades and excessive force. At least 284 people were arrested, including Amy Goodman, the prominent host of Democracy Now!, as well as the show's producers, Abdel Kouddous and Nicole Salazar. "St. Paul was the most militarized I have ever seen an American city to be," Greenwald wrote, "with troops of federal, state and local law enforcement agents marching around with riot gear, machine guns, and tear gas cannisters, shouting military chants and marching in military formations."

Bruce Nestor said the timing of the arrests was intended to stop protest activity, "to make people fearful of the protests, but also to discourage people from protesting," he told Amy Goodman. Nevertheless, 10,000 people, many opposed to the Iraq war, turned out to demonstrate on Monday. A legal team from the National Lawyers Guild has been working diligently to protect the constitutional rights of protestors.

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The National Lawyers Guild Condemns Senate Grant of Immunity to Lawbreaking Telecommunications Companies

Responding to fear-mongering by the Bush administration, the Senate voted on February 12 to give retroactive immunity to the telecommunications companies that have turned over our telephone and Internet communications to the government. These companies have violated several laws, including the Foreign Intelligence Surveillance Act (FISA), Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution.

The Bush administration has been illegally engaging in warrantless surveillance since early 2001, through its "Terrorist Surveillance Program." Over 40 lawsuits against the telecommunications companies challenging the legality of the program are pending.

On the eve of Congress's Labor Day recess last year, the Bush administration had rammed that the "Protect America Act" through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn't anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that provided consumer telephone and computer data to the government.

The day before the Senate took up this issue, Vice President Dick Cheney invoked the memory of September 11, 2001 twelve times in his address to the Heritage Foundation, and urged Congress to make the Act permanent. In the face of lawsuits against the telecom companies, Attorney General Michael Mukasey described the need for the companies to defend against litigation as "an enormous burden." Indeed, defending these lawsuits has likely cut in to their enormous profits.

Although President George W. Bush claims that making the Act permanent was critical to keeping us safe, he threatens to veto the bill unless it includes the immunity provision. Apparently protecting corporate profits trumps national security.

The House of Representatives passed a bill without immunity for the telecoms. The two bills will have to be harmonized. The National Lawyers Guild urges Congress to adopt the House version that omits immunity. Litigation against the telecommunications companies is the only remaining avenue of accountability for the administration's lawbreaking.

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

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Senate Poised to Capitulate to Cheney's Fear-Mongering

After a January 24 debate in the Senate on amending the Foreign Intelligence Surveillance Act, the Senate appears ready to capitulate once again to the Bush administration's agenda of sacrificing liberty for questionable security.

On the day before Congress was slated to take up this issue, Dick Cheney addressed the Heritage Foundation, the most influential right-wing think tank. He was given a thunderous reception, to which he quipped, "I hold an office that has only one constitutional duty - presiding over the Senate and casting tie-breaking votes." But the most powerful vice president in this nation's history was about to strong-arm Congress into doing the administrations' bidding.

Invoking the memory of September 11, 2001 twelve times, Cheney said it was "urgent" that Congress update the FISA law immediately and permanently. Notwithstanding the administration's well-known violations of FISA months before 9/11, Cheney claimed they had used "every legitimate tool at our command to protect the American people against another attack." He omitted the illegal tools the administration has admitted using, that is, Bush's so-called "Terrorist Surveillance Program" and a massive data mining program. FISA makes it a crime, punishable by up to five years in prison, for the executive to conduct a wiretap without statutory authorization. The TSP has been used to target not just the terrorists, but also critics of administration policies, particularly the war in Iraq.

Although Cheney repeatedly linked amending FISA with protecting America, there is no evidence Bush's secret spying program has made us any safer. Indeed, in 2006, the Washington Post reported that nearly all of the thousands of Americans' calls that had been intercepted revealed nothing pertinent to terrorism. About the same time, the New York Times quoted a former senior federal prosecutor, who described tips from intelligence officials involved in the surveillance. "The information was so thin and the connections were so remote, that they never led to anything, and I never heard any follow-up," he said.

In his speech to the Heritage Foundation, Cheney aimed to bully Congress into making the so-called "Protect America Act of 2007" permanent. On the eve of Congress's Labor Day recess last year, the Bush administration had rammed that act through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn't anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law, which expires February 1, went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that turned over our telephone and Internet communications to the government.

Permanent immunity, retroactive to 9/11, for the telecommunications companies is apparently the most critical concern of the Bush administration, whose primary constituency has been the mega-corporations. Although Cheney touted these companies as patriotic partners in the administration's "war on terror," they are breaking several U.S. laws, including FISA itself, Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution. Indeed, as the Electronic Frontier Foundation put it, "the real heroes are the companies that refused to help [the administration], like Verizon Wireless" and Quest Communications.

Cheney quoted Attorney General Michael Mukasey, who described the need for these companies to defend against litigation as "an enormous burden." What he really meant is that defending the roughly 40 pending lawsuits is cutting into their enormous profits.

The House of Representatives passed a bill without immunity for the telecoms. But in a 60-36 vote, the Senate rejected a proposal from the Senate Judiciary Committee that omitted immunity and contained important limits on wiretapping powers. Republican senators John McCain and Lindsey Graham, and Democratic senators Hillary Clinton and Barack Obama were not present for the vote.

Senator Christopher Dodd has indicated his intent to filibuster, or prevent a Senate vote, on a version of the bill that includes immunity. Senate Majority Leader Harry Reid apparently now supports the filibuster. The Senate is scheduled to vote on whether to proceed to a final Senate vote on this issue on January 28. Three of the Democrats who voted against the SJC proposal must be persuaded to change their votes, and Clinton and Obama must follow suit in order to maintain the filibuster and prevent the Senate from adopting a bill that includes immunity and omits vital civil liberties safeguards.

Here are the Democrats who voted against the SJC proposal:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852

John Edwards, the only Democratic presidential candidate willing to effectively take on the corporations, should weigh in against immunity for the telecoms and challenge his competitors to do the same. This is a golden opportunity for Clinton and Obama to exercise leadership on a crucial issue. Our civil liberties and privacy rights are at stake.

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Cheney Impeachment Gains Traction in House Judiciary Committee

Nine out of 23 Democratic members of the House Judiciary Committee favor starting impeachment hearings against Vice-President Dick Cheney. Six of the nine are co-sponsors of H.R. 799, which contains three articles of impeachment.

Articles I and II of H.R. 799 accuse Cheney of purposely manipulating intelligence to deceive Congress and the American people about a fabricated threat of Iraqi weapons of mass destruction, and about an alleged relationship between Iraq and al Qaeda, respectively. Article III charges Cheney with openly threatening aggression against Iran absent any real threat to the United States. All three articles say Cheney's actions have damaged our national security interests.

Three of the nine Judiciary Committee Democrats who advocate launching impeachment hearings against Cheney, Reps. Robert Wexler (D., Fla.), Luis Gutierrez (D., Ill.) and Tammy Baldwin (D., Wis.), co-authored an op-ed that appeared on December 27 in the Philadelphia Inquirer.

They wrote, "The issues at hand are too serious to ignore, including credible allegations of abuse of power that, if proven, may well constitute high crimes and misdemeanors under the Constitution. The allegations against Cheney relate to his deceptive actions leading up to the Iraq war, the revelation of the identity of a covert agent for political retaliation, and the illegal wiretapping of American citizens."

There is also credible evidence that policies set in Cheney's office authorized the torture of prisoners in U.S. custody, in violation of three treaties the United States has ratified, as well as the U.S. Torture Statute and War Crimes Act. The policies on the treatment of prisoners emanating from Cheney's office triggered the abuse and torture, according to Lawrence Wilkerson, former Secretary of State Colin Powell's chief of staff.

"It was clear to me that there was a visible audit trail from the Vice President's office through the Secretary of Defense down to the commanders in the field," Wilkerson, a former colonel, said on National Public Radio's "Morning Edition."

In November, the House of Representatives sent the impeachment resolution to the House Judiciary Committee for further proceedings. However many Democrats oppose impeachment, citing the year and a half of testimony about Bill Clinton's personal relations. They think impeachment will detract from Congress's other pressing business.

Yet, the three congresspersons noted, the Clinton impeachment "must not be the model for impeachment inquiries. A Democratic Congress can show that it takes its constitutional authority seriously and hold a sober investigation, which will stand in stark contrast to the kangaroo court convened by Republicans for Clinton."

And, they argue, the hearings would "involve the possible impeachment of the vice president - not of our commander in chief - and the resulting impact on the nation's business and attention would be significantly less than the Clinton presidential impeachment hearings."

Seventy percent of American voters think Cheney has abused his powers and 43 percent say he should be removed from office, according to a Nov. 13 poll by the American Research Group. Organizations, including the National Lawyers Guild, have called for the impeachment of Dick Cheney.

Impeachment hearings against Cheney would not only fulfill the Constitution's command that high officials who commit high crimes and misdemeanors be brought to justice. It would also deter the vice president from committing additional crimes that threaten the national security of the United States.

Any impeachment proceeding would have to start in the House Judiciary Committee. The nine Democrats on the House Judiciary Committee who favor impeachment hearings are: Robert Wexler, Fla.; Luis Gutierrez, Ill.; Anthony Weiner, N.Y.; Tammy Baldwin, Wisc.; Sheila Jackson Lee, Texas; Steve Cohen, Tenn.; Keith Ellison, Minn.; Maxine Waters, Calif.; and Hank Johnson, Ga.

Here is a list of the entire House Judiciary Committee: http://judiciary.house.gov/CommitteeMembership.aspx.

For information about the campaign to impeach Dick Cheney, see http://impeachcheney.org.

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National Lawyers Guild and Society of American Law Teachers Strongly Oppose Homegrown Terrorism Act

On October 23, 2007, the House of Representatives passed the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 by a vote of 404-6. The bill will be referred out of committee this week and will then go to the Senate floor. The National Lawyers Guild and the Society of American Law Teachers strongly oppose this legislation because it will likely lead to the criminalization of beliefs, dissent and protest, and invite more draconian surveillance of Internet communications.

This bill would establish a Commission to study and report on "facts and causes" of "violent radicalism" and "extremist belief systems." It defines "violent radicalism" as "adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change." The term "extremist belief system" is not defined; it could refer to liberalism, nationalism, socialism, anarchism, communism, etc.

"Ideologically based violence" is defined in the bill as the "use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual's political, religious, or social beliefs." Thus, "force" and "violence" are used interchangeably. If a group of people blocked the doorway of a corporation that manufactured weapons, or blocked a sidewalk during an anti-war demonstration, it might constitute the use of "force" to promote "political beliefs."

The bill charges that the Internet "has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens." This provision could be used to conduct more intrusive surveillance of our Internet communications without warrants.

This legislation does not criminalize conduct, but may well lead to criminalizing ideas or beliefs in violation of the First Amendment. By targeting the Internet, it may result in increased surveillance of Internet communications in violation of the Fourth Amendment.

The National Lawyers Guild and the Society of American Law Teachers strongly urge the Senate to refuse to pass the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007.

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

The Society of American Law Teachers (SALT) is a community of progressive law teachers working for justice, diversity and academic excellence. SALT is the largest membership organization of law faculty and legal education professionals in the United States.

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Michael Mukasey: Another Loyal Bushie

The Michael Mukasey Senate Judiciary Committee confirmation hearing has demonstrated that Mukasey cannot be relied upon to function independently as U.S. Attorney General. Nevertheless, Senators on the Senate Judiciary Committee seem so thrilled that Mukasey is not Alberto Gonzales that they're willing to vote for him even though he's another loyal Bushie. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, backed down on his promise to hold up the confirmation hearing until the administration turned over material his committee had requested regarding several investigations. Leahy said of Mukasey after the hearing, "He's at least answered the questions, which is better than his predecessor. He's going to be different than Gonzales on all the issues, I think. He will certainly be better than Gonzales on morale."

But saying that Mukasey compares favorably to Alberto Gonzales is faint praise for the nominee. The former Attorney General resigned during a firestorm of criticism about his U.S. Attorney purges, and his repeated claims of memory loss when he testified before the Senate Judiciary Committee.

Mukasey doesn't seem to have a memory problem; he relied on a different excuse for dodging the Senators' hard questions: he hasn't been "read in on" the details of Bush policies, such as interrogation techniques, or the "Terrorist Surveillance Program." Mukasey claims he doesn’t know what water boarding is, so he can’t say if it constitutes torture. Say what? Mukasey’s claimed ignorance of water boarding is about as credible as his predecessor’s convenient claims of amnesia. Rear Adm. John Hutson (USN Ret.) testified at the confirmation hearing, "Other than, perhaps the rack and thumbscrews, water boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish inquisition. It has been repudiated for centuries."

Mukasey made the incredible assertions that "we do not torture" and "I don't think people are mistreated" at Guantánamo. The main problem he sees with Guantánamo is that "nobody owns it," that is, there is jurisdictional overlap between the Justice and Defense Departments. Mukasey callously told Sen. Dick Durbin before the hearings that Guantánamo was used as a "fright wig," and after all, detainees receive "three hots and a cot, health care better than many Americans, and taxpayer-funded Korans."

The rest of us haven't been “read in on” the classified details either. But we know that torture and inhuman treatment is Bush policy in spite of the fact it's illegal. The 2005 Department of Justice memos recently leaked to the New York Times say the government is engaging in water boarding, head slapping and exposing people to frigid temperatures, the International Committee of the Red Cross said the treatment of prisoners in U.S. custody is tantamount to torture, and the U.N. Human Rights Commission concluded that force feeding Guantánamo prisoners amounts to torture. We also know that Bush spied on Americans without warrants in spite of the Foreign Intelligence Surveillance Act (FISA) because he and Gonzales admitted it. And we know what water boarding is.

Some of Mukasey’s testimony before the Senate Judiciary Committee should have raised red flags in the minds of Democratic Senators. Mukasey refused to reject the notion that the President can constitutionally violate FISA. He misread the Supreme Court's recent decision in Hamdan v. Rumsfeld, which clearly rejected Bush's claim that Common Article 3 of the Geneva Conventions doesn't protect al-Qaeda prisoners. Common Article 3 prohibits torture and cruel or inhuman treatment of all prisoners. In fact, the Hamdan Court referred to possible liability under the U.S. War Crimes Act for those who violate Common Article 3. And when asked about contempt charges against witnesses who refuse to respond to congressional subpoenas, Mukasey said he would refuse to follow the statute that requires a U.S. attorney to refer contempt citations to a grand jury.

Nonetheless, Mukasey appears to be a shoo-in, with the Senate proceedings resembling a charade. One month before Mukasey was tapped by Bush for AG, the former federal judge penned an op-ed in the Wall Street Journal complaining about too much due process in terrorism prosecutions and advocating special courts where the Constitution wouldn't get in the way of catching the bad guys.

Mukasey's excessive zeal for Bush's war on terror was evident right after 9/11. In an October 2, 2001 hearing in his court, then-Judge Mukasey dismissed attorney Randall Hamud's claim that his client, 21-year-old Jordanian Osama Awadallah, had been physically beaten while in custody and had the marks to prove it. Mukasey retorted, "As far as the claim he was beaten, I will tell you he looks fine to me." The judge then refused to direct that Awadallah be examined by a doctor, and ordered that he be held indefinitely. The marks were under Awadallah's clothing. He was one of the more than 1,000 men of Arab descent rounded up after 9/11, and later exonerated. Many suffered similar abuse while in U.S. custody. Ronald Kuby was a defense attorney in the 1995 Omar Abdel Rahman case, over which Mukasey presided. Mukasey "was violating the rights of Arabs before it was popular," Kuby said. "It was very much like trying a case with two prosecutors, one of whom was wearing a black robe."

After librarians complained about the USA Patriot Act's provision that required them to tell the government what books we read, Mukasey mocked them in a Wall Street Journal op-ed. He described civil liberties concerns as "recreational hysteria."

Although former Judge Mukasey ruled Jose Padilla had the right to consult with counsel, he held that the President has the power to detain U.S. citizens caught on U.S. soil without charging them with a crime. When Sen. Dianne Feinstein questioned him, Mukasey incorrectly cited Hamdi v. Rumsfeld to support his position. Hamdi, unlike Padilla, was captured on the battlefield in Afghanistan, and the high court held that even Hamdi was entitled to some basic due process. In response to Feinstein's question about whether Congress has the right to set boundaries on military action under Article I of the Constitution, Mukasey demurred, arguing his "learning curve" was "steep."

Mukasey ducked the question of whether he would advise the President to allow unlawful enemy combatants habeas corpus rights at Guantánamo Bay. "I would not advise the President to grant rights beyond those that they already have," he told Sen. Lindsey Graham. In spite of the Military Commissions Act, which purports to deny these people statutory habeas rights, the Supreme Court will likely decide this term that they still have the constitutional right to habeas corpus.

At the committee hearing on Wednesday, Mukasey was introduced by his dear friend and law school buddy Joe Lieberman. No one is fanning the flames of war against Iran more than Lieberman. Bush/Cheney likely see Mukasey as a reliable ally who will help "legitimize" their impending illegal attack on Iran.

When Bush nominated Mukasey for attorney general, he declared Mukasey would "ensure that our law enforcement and intelligence officers have the tools they need to protect the United States and our citizens." Mukasey, who refused to call water boarding torture, will likely support that "tool" in the war on terror. Mukasey told senators in advance of his hearings that he supports enhanced interrogation techniques, according to Newsweek's Michael Isikoff.

Michael Mukasey cannot be counted on to independently investigate the crimes of the White House. Elizabeth Holtzman, a former congresswoman who served on the House Judiciary Committee during the Nixon impeachment, advocated in a recent op-ed in the Progressive that the Senate should confirm Muksey only if he pledges to appoint a special prosecutor to investigate the Bush administration. That's what the Democratically-controlled Congress did in 1973 after Nixon nominated Elliot Richardson for attorney general. Richardson agreed, he was confirmed, and then appointed Archibald Cox as special prosecutor. Cox's investigations and summary dismissal resulted in the issuance of articles of impeachment against Nixon in the House Judiciary Committee followed by Nixon's resignation. It would be wonderful to have a Congress that once again stood up to the President when he breaks the law.

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FISA Revised: A Blank Check for Domestic Spying

Responding to fear-mongering by the Bush administration, the Democrat-led Congress put its stamp of approval on the unconstitutional wiretapping of Americans.

George W. Bush has perfected the art of ramming ill-considered legislation through Congress by hyping emergencies that don't exist. He did it with the USA Patriot Act, the authorization for the Iraq war, the Military Commissions Act, and now the "Protect America Act of 2007" which amends the Foreign Intelligence Surveillance Act (FISA).

FISA was enacted in 1978 in reaction to excesses of Richard Nixon and the FBI, who covertly spied on critics of administration policies. FISA set up a conservative system with judges who meet in secret and issue nearly every wiretapping order the administration requests.

But that wasn't good enough for Bush. In 2001, he secretly established his "Terrorist Surveillance Program," which the National Security Agency has used to illegally spy on Americans. Instead of holding hearings and holding the executive accountable for his law-breaking, Congress capitulated once again to the White House's strong-arm tactics. As Congress was about to adjourn for its summer recess, Bush officials threatened to label anyone who opposed their new legislation as soft on terror. True to form, Congress - including 16 Senate and 41 House Democrats - caved.

The new law takes the power to authorize electronic surveillance out of the hands of a judge and places it in the hands of the attorney general (AG) and the director of national intelligence (DNI). FISA had required the government to convince a judge there was probable cause to believe the target of the surveillance was a foreign power or the agent of a foreign power. The law didn't apply to wiretaps of foreign nationals abroad. Its restrictions were triggered only when the surveillance targeted a U.S. citizen or permanent resident or when the surveillance was obtained from a wiretap physically located in the United States. The attorney general was required to certify that the communications to be monitored would be exclusively between foreign powers and there was no substantial likelihood a U.S. person would be overheard.

Under the new law, the attorney general and the director of national intelligence can authorize "surveillance directed at a person reasonably believed to be located outside of the United States." The surveillance could take place inside the United States, and there is no requirement of any connection with al-Qaeda, terrorism or criminal behavior. The mandate that the AG certify there is no substantial likelihood a U.S. person will be overheard has been eliminated.

By its terms, the new law will sunset in 180 days. But this is a specious limitation. The AG and DNI can authorize surveillance for up to one year. So just before the statute is set to expire around February 1, 2008, they could approve surveillance that will last until after Bush leaves office.

There is provision for judicial review of the procedures the AG and DNI establish to make sure they are reasonably designed to ensure communications of U.S. persons are not overheard. But that requirement is also specious. They must submit their procedures to the Foreign Intelligence Surveillance Court 120 days after the effective date of the act. The court doesn't have to respond to their submission until 180 days after the effective date of the act, and the standard of review is appallingly low. It's limited to whether the government's determination is "clearly erroneous." Even if the court were to find the proffer clearly erroneous, the AG and DNI have another 30 days to fix it. That takes the entire review process beyond the 6 month sunset period. Meanwhile, the surveillance can continue.

The Supreme Court held in the 1967 case of Katz v. United States that government wiretapping must be supported by a search warrant based on probable cause and issued by a judge. In 1972, the Court, in U.S. v. U.S. District Court (Keith), struck down warrantless domestic surveillance. The Court has recognized the "special needs" exception to the warrant requirement. The special need must be narrowly tailored to the problem. However, the new law is much too broad to come under this exception. Congress eliminated any need that the person surveilled be a foreign power or an agent of a foreign power. The government need only show it is seeking "foreign intelligence information." There is no requirement of any connection with terrorism. The special needs exception also requires an absence of discretion in the implementing authority. There is unlimited discretion now as long as the target is reasonably believed to be outside the United States.

The AG is required under the new law to report to Congress semi-annually, but only on incidents of non-compliance. Can we really trust Alberto Gonzales to be forthcoming about compliance with this law? Senator Christopher Dodd told Glenn Greenwald at the YearlyKos convention last week that neither he nor the other senators have any idea of how the Bush administration has been using its secret program to spy on Americans.

Finally, the new law requires telephone companies to collect data and turn it over to the federal government. It also grants immunity against lawsuits to these companies, many of which are currently defendants in civil cases.

Indeed, the mad rush to push this legislation through last week was likely a preemptive strike by Bush to head off adverse rulings in lawsuits challenging the legality of his Terrorist Surveillance Program. On August 9, a federal district court in San Francisco will hear oral arguments by lawyers from the Center for Constitutional Rights and the National Lawyers Guild in CCR v. Bush. And on August 15, Guild lawyers and others will argue Al-Haramain v. Bush in the 9th U.S. Circuit Court of Appeals.

In six months, when the "Protect America Act of 2007" is set to expire, there will be even more political pressure on Congress to appear tough on terror in the run-up to the 2008 presidential election. We cannot expect a Congress that so easily caved in to the fears hyped by the Bush administration to stand firm in support of the Constitution.

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Targeting Dissent: FBI Spying on the National Lawyers Guild

In 1937, the American Bar Association refused to allow people of color to join its ranks. With the blessing of President Franklin D. Roosevelt, the National Lawyers Guild was founded as a multi-racial alternative to the ABA. The Guild's founding members included the attorney general, several judges, some congressmen, and the head of the National Labor Relations Board.

Three years after the creation of the National Lawyers Guild, the FBI began to conduct secret surveillance of the Guild. From 1940 to 1975, the FBI wiretapped Guild phones, burglarized Guild offices, and sent informers into Guild meetings. The June 25, 2007 New York Times report on the FBI's program of spying on the Guild omits FBI Director J. Edgar Hoover's primary rationale for undertaking this surveillance: "to blunt the Guild's criticism of the FBI and, if possible, to destroy the organization," in the words of Michael Krinsky, one of the lawyers who filed the 1977 lawsuit against the FBI.

The Guild, which provided legal support for the people, was a thorn in Hoover's side. In 1950, the Guild was about to release a big exposé on the FBI, prepared by Yale law professor and ex-Guild president Thomas Emerson. No other organization was undertaking such a comprehensive criticism of the FBI. Through illegal wiretaps and informants the FBI learned of the Guild's impending report. In advance of the report's release, the FBI launched a pre-emptive strike at the Guild by causing people in the press and the Senate to denounce the report. "So the story became the Lawyers Guild, not the FBI," Krinsky said.

The FBI asked Richard M. Nixon, a member of the House Un-American Activities Committee (HUAC), to call for an investigation of the Guild, on the eve of the release of the Guild report. The investigation led to the 1950 HUAC report titled, "National Lawyers Guild: Legal Bulwark of the Communist Party." It concluded with a call to the attorney general to designate the National Lawyers Guild a "subversive organization." The AG complied in 1953, but when no evidence to support the designation was forthcoming, he dropped it in 1958.

From the 1950s through the early 1970s, the FBI continued to focus on the National Lawyers Guild. The FBI had a list called The Security Index, which identified people, including Guild leaders, to be rounded up in the event of a national emergency.

Hoover's COINTELPRO (Counter-Intelligence Program) engaged in illegal surveillance of other organizations and individuals as well as the Guild. For example, in a program called Racial Matters, the FBI wiretapped Dr. Martin Luther King Jr.'s hotel rooms and tried to drive him to divorce and suicide. Dr. King's voter registration campaign and especially his vocal opposition to the Vietnam War incurred the wrath of J. Edgar Hoover, who went after Dr. King with a vengeance. Groups such as the Committee in Solidarity with the People of El Salvador (CISPES) were also on Hoover's surveillance list.

The revelation of President Richard Nixon's illegal surveillance of groups opposed to his policies as well as hearings by a select Senate committee chaired by Senator Frank Church led to the enactment of the Foreign Intelligence Surveillance Act (FISA) and other curbs on the power of the FBI and the CIA. Today we are faced with President George W. Bush's secret domestic spying program, which, as I explain in my book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, violates not only FISA, but the Fourth Amendment as well.

Bush's predecessors illegally targeted those who criticized their policies, under the guise of fighting communism. Bush's rationale for bending the Constitution is fighting terrorism, but his attacks are leveled at disssenters.

The HUAC report and the AG's designation of the Guild not only violated the Constitution; they nearly succeeded in destroying the organization. Membership in the Guild fell to about 300 members. But the Guild survived and today it boasts nearly 6,000 members.

Members of the National Lawyers Guild continue to work beside those who struggle for economic, racial and sexual equality, and against imperial wars and occupations. I'm proud to have been a Guild member for more than half of its 70-year life.

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Fool Us Twice? From Iraq to Iran

It's déja vu. This time the Bush gang wants war with Iran . Following a carefully orchestrated strategy, they have ratcheted up the "threat" from Iran, designed to mislead us into a new war four years after they misled us into Iraq.

Like its insistence that Iraq had WMD, the Bush administration has been hyping claims that Iran seeks nuclear weapons. The International Atomic Energy Agency (IAEA), however, has found no evidence that Iran is building nuclear weapons. IAEA chief Mohamed ElBaradei says there is plenty of time for negotiation with Iran.

Bush has sent two battle carrier groups, replete with nukes, to the Persian Gulf and a third is reportedly preparing to follow. In support of Bush's case that Iran poses a danger to the U.S. , three unnamed American officials ceremoniously trotted out metal parts found in Iraq and claimed Iran supplied them to kill our soldiers in Iraq.

This "evidence" - or "packaging," as the Associated Press calls it - doesn't pass the straight face test with most reputable observers. "The officials offered no evidence to substantiate allegations that the 'highest levels' of the Iranian government had sanctioned support for attacks against U.S. troops," according to Monday's Washington Post.

Saturday's New York Times cited information gleaned from "interrogation reports" from Iranians and Iraqis captured in the recent U.S. raid on the Iranian embassy in northern Iraq . They allegedly indicated money and weapons components are brought into Iraq over the Iranian border at night. If those people indeed provided such information, query what kind of pressure, i.e. torture, might have been applied to encourage their cooperation. Recall the centerpiece of Colin Powell's 2003 lies to the Security Council about ties between Iraq and al Qaeda came from false information tortured out of Ibn al-Shaykh al-Libi.

Any Iranian weapons in Iraq may belong to the Supreme Council for Islamic Revolution in Iraq (SCIRI), a Shiite resistance group the U.S. used to support. There could be old Iranian munitions lying around which are left over from the Iran-Iraq war during the 1980s. A former high level U.S. military officer told me it was not uncommon to find large caches of weapons around Iraq . He cited the 2004 discovery of 37,000 American Colt 45 handguns in a warehouse near the Iranian border on the Iraq side, likely procured "when Saddam was our friend." The United States armed both sides in the Iran-Iraq conflict.

The U.S. National Intelligence Estimate on Iraq , released last week, concluded that Iranian or Syrian involvement is "not likely to be a major driver of violence" in Iraq .

Paul Krugman wrote that even if Iran were providing aid to some factions in Iraq , "you can say the same about Saudi Arabia , which is believed to be a major source of financial support for Sunni insurgents - and Sunnis, not Iranian-backed Shiites, are still responsible for most American combat deaths." Indeed, 15 of the 19 hijackers on 9/11 were Saudis. But as Krugman mentions, the Bush administration's "close personal and financial ties to the Saudis" have caused it to downplay "Saudi connections to America 's enemies."

American troops are still fighting in Afghanistan . Yet the Bush administration hasn't complained about the Taliban attacks on Afghanistan that originate in Pakistan , a country with documented nuclear weapons. Of course the Bush administration is cozy with the Pakistani regime.

The government of Israel, which also has nukes, is fueling the call for an invasion of Iran . On February 7, the Los Angeles Times cited Israeli politicians and generals warning of a "second Holocaust" if no one fails to prevent Tehran from acquiring nukes.

Israel would like to start a war with Iran and supports this desire by citing a quote from Iranian president Mahmoud Ahmadinejad that Israel should be wiped off the map. But this is an erroneous translation of what he said. According to University of Michigan professor Juan Cole and Farsi language analysts, Ahmadinejad was quoting Ayatollah Khomeini, who said the "regime occupying Jerusalem must vanish from the page of time." Cole said this "does not imply military action or killing anyone at all." Journalist Diana Johnstone points out the quote is not aimed at the Israeli people, but at the Zionist "regime" occupying Jerusalem. "Coming from a Muslim religious leader," Johnstone wrote, "this opinion is doubtless based on objection to Jewish monopoly of a city considered holy by all three of the Abramic monotheisms." Iran has not threatened to invade Israel.

Indeed, only 36 percent of the Jews in Israel told pollsters last month they thought a nuclear attack by Iran posed the "biggest threat" to Israel . Americans concur. Seventy-five percent want negotiations in lieu of war with Iran.

Yet Hillary Clinton, Barack Obama and John Edwards, all beholden to the Israel lobby, have bought into Bush's dangerous rhetoric about Iran.

It would be sheer lunacy to make war on Iran. Three former high-ranking U.S. military officers and a coalition of 13 British think-tanks and faith groups have warned that an attack on Iran would have disastrous consequences.

Bush probably won't ask Congress to bless his Iran war. He will provoke a confrontation and then claim we have to fight back. Last year, the New York Times documented a January 2003 meeting with Prime Minister Tony Blair, where Bush "talked about several ways to provoke a confrontation [with Iraq], including a proposal to paint a United States surveillance plane in the colors of the United Nations in hopes of drawing fire."

A nuclear attack on Iran would violate U.S. obligations under the Nuclear Non-Proliferation Treaty. Any attack would violate the U.N. Charter. All treaties we ratify become part of U.S. law under the Constitution's Supremacy Clause. Twelve European, international, and U.S. legal and human rights groups issued an open letter warning of the illegality of any offensive military action by the U.S. against Iran. (http://www.nlg.org/news/statements/Military_Iran_2007.htm ).

Congress has tied itself in knots over a non-binding resolution on Iraq . If our elected representatives responded to their constituencies instead of the Bush gang's fear mongering, they would stand up to him and pass a modern day Boland Amendment forbidding military action against Iran.

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Pentagon Attacks Lawyers of Guantánamo Detainees

In one of the most severe blows the Bush administration has dealt to our constitutional democracy, the Pentagon attacked the lawyers who have volunteered to represent the Guantánamo detainees.

Deputy Assistant Secretary of Defense Charles Stimson threatened corporate lawyers who agree to defend the men and boys imprisoned there. Flashing a list of corporations that use law firms doing this pro bono work, Stimson declared, "Corporate C.E.O.'s seeing this should ask firms to choose between lucrative retainers and representing terrorists."

In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts.

Adams later said his representation of those British soldiers was "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

Federal Judge Green, who has handled the many habeas corpus petitions filed by the Guantánamo detainees, expressed appreciation for the lawyers: "I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service."

More than 750 men and boys have been held like animals in cages during the last five years at Guantánamo. Many were picked up by warlords and sold to the U.S. military for bounty. None has been tried for any crime. Very few even have any criminal charges against them.

Ironically, there were no alleged terrorists connected with 9/11 there until Bush recently transferred 14 men from his secret CIA prisons to Guantánamo. Meanwhile, hundreds of detainees languish in custody, aided by 500 courageous lawyers from 120 firms who have volunteered countless hours to represent them.

Under the Military Commissions Act Bush just rammed through Congress, the Guantánamo prisoners could be held for the rest of their lives without ever seeing a judge. Those who decide that death could not be worse than life at Gitmo have participated in a hunger strike.

Rather than subject the Bush administration to embarrassment when prisoners die in U.S. custody, military guards force feed them. Thick plastic tubes are forced down their throats with no anesthesia. Tubes are not sterilized before being reused on other prisoners. The UN Human Rights Commission called the force-feeding "torture." Many prisoners also report being tortured during interrogations.

Guantánamo has become the symbol of U.S. hypocrisy. While fighting the "war on terror" and attacking other countries for their human rights abuses, the officials in the Bush administration have become war criminals. Torture and cruel or inhuman treatment are punishable as war crimes under the U.S. War Crimes Act.

The Supreme Court held in Rasul v. Bush that the Guantánamo prison is under U.S. jurisdiction, so prisoners there are entitled to the protections of the Constitution. The Sixth Amendment mandates that every person charged with a crime has the right to be defended by an attorney. The government is forbidden by the Fifth Amendment from denying any "person" -- U.S. citizen or not -- due process of law. The presumption of innocence is enshrined in our legal system.

Bush's attack on lawyers is the latest assault on our civil liberties, which now includes warrantless surveillance of our phone calls and email, and most recently, our U.S. Mail. Although Bush says he's spying on the terrorists, those who criticize his policies, including his illegal and immoral war on Iraq, are also invariably in his cross hairs.

All Americans should heed the words of Martin Niemoller: "First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left who could stand up for me."

George W. Bush must immediately renounce Stimson's threats and relieve him of his duties. A country that would sacrifice its own values under the guise of protecting them has no moral authority in this world.

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Rounding Up U.S. Citizens

The Military Commissions Act of 2006 governing the treatment of detainees is the culmination of relentless fear-mongering by the Bush administration since the September 11 terrorist attacks.

Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, "unlawful enemy combatants."

Bush & Co. has portrayed the bill as a tough way to deal with aliens to protect us against terrorism.

Frightened they might lose their majority in Congress in the November elections, the Republicans rammed the bill through Congress with little substantive debate.

Anyone who donates money to a charity that turns up on Bush's list of "terrorist" organizations, or who speaks out against the government's policies could be declared an "unlawful enemy combatant" and imprisoned indefinitely. That includes American citizens.

The bill also strips habeas corpus rights from detained aliens who have been declared enemy combatants.

Congress has the constitutional power to suspend habeas corpus only in times of rebellion or invasion. The habeas-stripping provision in the new bill is unconstitutional and the Supreme Court will likely say so when the issue comes before it.

Although more insidious, this law follows in the footsteps of other unnecessarily repressive legislation. In times of war and national crisis, the government has targeted immigrants and dissidents.

In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party's political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans.

The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.

The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything "false, scandalous and malicious" with the intent to hold the government in "contempt or disrepute." The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.

Subsequent examples of laws passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress.

The Patriot Act created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.

In 1944, the Supreme Court upheld the legality of the internment of Japanese and Japanese-American citizens in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

That day has come with the Military Commissions Act of 2006. It provides the basis for the President to round- up both aliens and U.S. citizens he determines have given material support to terrorists. Kellogg Brown & Root, a subsidiary of Cheney's Halliburton, is constructing a huge facility at an undisclosed location to hold tens of thousands of undesirables.

In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Seventy- three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans "they need to watch what they say, watch what they do."

We can expect Bush to continue to exploit 9/11 to strip us of more of our liberties. Our constitutional right to dissent is in serious jeopardy. Benjamin Franklin's prescient warning should give us pause: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

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One Nation Under Surveillance

We do not believe the Executive has, or should have, the inherent
constitutional authority to violate the law or infringe the legal rights
of Americans, whether it be a warrantless break-in into the home or
office of an American, warrantless electronic surveillance, or a
President's authorization to the FBI to create a massive domestic
security program based upon secret oral directives.
-Final Report of the Church Committee, 1976

The revelation that President George W. Bush authorized the unlawful warrantless surveillance of Americans has resurrected the discussion of the proper balance to be struck between liberty and security.

This discourse is not new in the United States. Benjamin Franklin warned, "They who would give up an essential liberty for temporary security, deserve neither liberty or security." Franklin was prescient. Throughout our history, we have grappled with this apparent tension. Unfortunately, all too often, we have lost our liberties - without becoming more secure. It has been primarily the executive branch that has overreached across the lines that separate the three branches of our government. In this post-9/11 world, under the guise of his "Global War on Terror," George W. Bush has arrogated to himself a level of presidential authority that rivals any such usurpation in the past.

Surveillance in this country has been aimed at slaves, immigrants, political radicals, suspected lawbreakers, the poor, workers, and anyone with a credit card or a computer. It has frequently been used by the government to suppress criticism of its policies.

In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party's political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans. The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.

The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything "false, scandalous and malicious" with the intent to hold the government in "contempt or disrepute." The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.

Subsequent examples of repressive legislation passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).
During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."
COINTELPRO (counter-intelligence program) was designed to "disrupt, misdirect and otherwise neutralize" political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of FBI director J. Edgar Hoover, who disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights and anti-Vietnam War campaigns "represented a clear threat to the established order of the U.S." It went after King with a vengeance, wiretapping his telephones and securing personal information which it used to try to discredit him and drive him to divorce and suicide.

In response to the excesses of COINTELPRO, a congressional committee chaired by Senator Frank Church conducted an investigation of activities of the domestic intelligence agencies. The Church Committee concluded, "[I]ntelligence activities have undermined the constitutional rights of citizens and ... they have done so primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied." The committee added, "In an era where the technological capability of Government relentlessly increases, we must be wary about the drift toward 'big brother government' ... Here, there is no sovereign who stands above the law. Each of us, from presidents to the most disadvantaged citizen, must obey the law." The committee stressed that the "advocacy of political ideas is not to be the basis for governmental surveillance."

Congress established guidelines to regulate intelligence-gathering by the FBI. Reacting against President Richard Nixon's assertion of unchecked presidential power, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978, to regulate electronic surveillance while protecting national security.

FISA established a secret court to consider applications by the government for wiretap orders. It specifically created only one exception for the President to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers, and that there is no substantial likelihood that a United States person will be overheard.

In 2002, in direct violation of FISA, Bush signed an executive order that authorizes the National Security Agency to wiretap people within the United States with no judicial review. It is estimated that the NSA has eavesdropped on thousands of private conversations in the last four years. Additionally, the NSA has combed through large volumes of telephone and Internet communications flowing into and out of the United States. It has collected vast personal information that has nothing to do with national security.

Electronic surveillance was first used during the Holocaust when IBM worked for the Nazi government organizing and analyzing its census data. Death camp barcodes - linked to computerized records - were tattooed onto prisoners' forearms.

The advent of digital technology raised surveillance to a new level. Social Security numbers, credit cards, gym memberships, library cards, health insurance records, bar codes, GSM chips in cell phones, toll booths, hidden cameras, workplace identification badges, and the Internet all provide the government with effective tools to keep track of our finances, our politics, our personal habits, and our whereabouts through data mining. The Privacy Foundation determined in a 2001 survey that one-third of all American workers who use the Internet or email on the job are under "constant surveillance" by employers.

One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress. The Patriot Act lowered the standards for government surveillance of telephone and computer communications, and empowered the government to monitor books people read. It created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.

In 1944, the Supreme Court upheld the legality of the Japanese internment in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

That day came with the recent decision of a New York federal judge, dismissing a case that challenged the detention of hundreds of Arab and Muslim foreign nationals shortly after 9/11. None has been convicted of any crime involving terrorism. U.S. District Judge John Gleason ruled in Turkmen v. Ashcroft that the round-up and indefinite detention of foreign nationals on immigration charges based only on their race, religion or national origin does not violate equal protection or due process. This is not surprising in light of the anti-immigrant hysteria sweeping our country today.

In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Seventy-three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans "they need to watch what they say, watch what they do."

Milton Mayer described the escalation of surveillance that accompanied the rise of German fascism: "What happened was the gradual habituation of the people, little by little, to be governed by surprise, to receiving decisions deliberated in secret; to believe that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if people could understand it, it could not be released because of national security." We should heed his words.

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The Hayden Charade

In his testimony before the Senate Intelligence Committee on Thursday, General Michael Hayden promised to promote autonomy and objectivity in the CIA if confirmed as its new director. Hayden assured the senators he would provide "hard-edged assessments" and be tolerant of dissenting views on intelligence matters. "When it comes to speaking truth to power," Hayden declared, "I will lead CIA analysts by example. I will … always give our nation's leaders the best analytic judgment."

The evidence, however, suggests precisely the opposite. As head of the National Security Agency, this 4-star general walked in lockstep with his commander in chief, George W. Bush. Hayden helped designed the illegal program of spying on our telephone calls and emails and then repeatedly defended it when interrogated by the senators at his hearing, citing "legal" opinions of Bush's hired guns in the Justice Department.

Rather than providing the White House with a neutral assessment of Iran's nuclear capabilities, we can expect Hayden to give Bush the "intelligence" the president seeks to justify his war on Iran. Things did not run as smoothly as Bush would have wished under the last two CIA directors. He had to dispatch Dick Cheney to the CIA several times to furnish the "intelligence" he needed to rationalize his war on Iraq.

Senator Carl Levin (D-Mich.) asked Hayden if he was "comfortable" with under secretary of defense for policy Douglas Feith's personal
intelligence-analysis cell, which hyped a link between Iraq and Al Qaeda. Hayden said he wasn't comfortable with it and protested that he wasn't aware of a lot of the activity going on leading up to the Iraq war.

But when questioned about Colin Powell's use of false WMD information to support his infamous appearance before the United Nations in the run-up the war, Hayden made a telling admission.

In response to Levin's question about the legal standard for declassifying information in the public interest, Hayden said, "We used that in Powell's speech. George [Tenet] had to call me for three tapes." Hayden was right in the middle of the preparation for Powell's disingenuous presentation.

Hayden, who will be the third director of the CIA in two years, will salute and march to Bush's agenda. The nation's chief spook will shape the "intelligence" to fit Bush's policy of regime change in Iran.

Hayden vowed to "reaffirm CIA's proud culture of risk-taking and excellence." Not one of the senators, from either party, interrogated Hayden about the CIA's checkered past.

There was no mention of the CIA's 1953 coup that ousted Iran's democratically-elected president Mohammed Mosadeq and replaced him with the US-friendly tyrant, the Shah Reza Pahlavi. The 1979 Iranian revolution lead to the overthrow of the Shah's regime and the rise of Islamic fascism under the leadership of the Ayatollah Khomeini, providing a model of theocracy for much of the Muslim world.

Absent was any reference in the hearing to the CIA's support for Osama bin Laden in his fight against the Soviet Union in Afghanistan. The defeat of the USSR there, and the rise of the Mujahedin, enabled the Taliban to come to power. Then, Bin Laden used his CIA training to orchestrate the 9/11 attacks.

Today we are reaping what the CIA sowed in Iran and Afghanistan.

None of the senators asked Hayden about the CIA's torture manuals, which have been utilized by myriad Latin American dictators to repress their people.

Much of the CIA's risk-taking is nothing to be proud of. There is no indication that Hayden will bring new integrity to the CIA.

Hayden's defense of the NSA's warrantless surveillance program was incredible. When questioned about the Fourth Amendment's standard for searches and seizures, Hayden assured the senators that he had consulted with his relatives who are in law school for legal advice.

The Fourth Amendment says the people shall be secure from unreasonable searches and seizures, and that no warrant shall issue but upon probable cause. For more than a century, the Supreme Court has held that in order to be reasonable, a search or seizure must be supported by a search warrant based on probable cause and issued by a judge. Only when certain narrowly-defined exceptions apply can the government dispense with a warrant.

Hayden and his law student relatives have reversed that presumption. He told the senators that only reasonableness, not a warrant, is necessary to intercept our private communications. Hayden said the NSA uses a probable cause standard. But the Supreme Court has consistently declared that a judge must determine whether probable cause exists.

When confronted with USA Today's report that the NSA is collecting data on tens of millions of Americans, monitoring the calls we make and receive, Hayden refused to confirm or deny it.

Two of the long-distance companies named in that article, Verizon Communications and BellSouth, both facing lawsuits for invasion of privacy, have denied giving the government these records. AT&T has refused comment.

Interestingly, Bush issued an executive order on May 5 that allows Director of Intelligence John Negroponte - Michael Hayden's boss - to authorize a company to conceal activities related to "national security." Thus, we cannot trust the denials by Verizon and BellSouth.

Like Bush's warrantless eavesdropping on calls where one party is abroad, the NSA's massive data collection is illegal.

Both of these programs violate the Foreign Intelligence Surveillance Act, or FISA, which clearly requires a warrant issued by a FISA court judge.

It is illegal for the NSA to collect phone numbers from phone companies unless the FISA court authorizes it.

Telephone records that show what numbers have called a specific telephone are captured by a "trap and trace" device. A "pen register" shows what number a specific telephone has called.

The law on pen registers and trap and trace devices requires that a court order be obtained either under FISA or Title III, the criminal wiretap law.

In order to intercept communications, the NSA would have to demonstrate to the court that the person whose calls are being targeted is an agent of a foreign power or that the information is relevant to an ongoing terrorism investigation.

The Patriot Act allows the FBI to use a national security letter - a kind of administrative subpoena - to obtain these records. But Congress specifically withheld this subpoena power from the NSA, which must convince the FISA court that the information is relevant.

There is no evidence that NSA has obtained court orders before obtaining the phone records of millions of Americans.

There is evidence, however, that the FBI is using national security letters to go after journalists critical of the administration. Brian Ross from ABC News told Amy Goodman on Democracy Now! that the government's methods are changing the way he operates. It makes his work "very, very difficult," he said. "And, you know, you sort of have to start thinking, I guess, like some sort of Mafia capo," Ross noted. "You make your phone calls with bags of quarters at pay phones, if you can find them anymore. It's chilling to say the least." So much for a free press.

Last year, the FBI issued a total of 9,254 national security letters, targeting 3,500 citizens and legal residents.

In October 2002, while serving as NSA director, Hayden misled Congress about the extent of the NSA's warrantless domestic surveillance. Senator Ron Wyden (D-Ore.) told Hayden at the hearing, "I now have a difficult time with your credibility."

Earlier this year, Hayden made more misleading statements in an appearance before the National Press Club. He said, "The intrusion into privacy is also limited: only international calls." In fact, the NSA is collecting data on millions of purely domestic calls.

Hayden ducked several questions, deferring his answers to the closed session that followed the public hearing on Thursday. Senators who hear his secret testimony are forbidden to publicize it. Hayden refused to publicly answer seven questions posed by Senator Dianne Feinstein (D-Calif.) about whether the NSA has sought FISA warrants for pen register and trap and trace devices; whether terror suspects in secret CIA prisons are likely to remain incommunicado until the war on terror ends; whether there is periodic review of what useful intelligence can be gathered by interrogations of terrorists held for years with no contact with Al Qaeda; whether "water boarding," recently classified as torture by the UN, is acceptable; whether the CIA will obey laws and treaties in light of the Detainee Treatment Act; whether Hayden agreed with the CIA inspector general's conclusion that certain interrogation techniques constitute cruel, inhuman or degrading treatment prohibited by the Convention Against Torture; whether Hayden agreed with estimates that Iran is some years away from nuclear weapons capability; and whether the CIA has received new guidance from the Justice Department about acceptable interrogation techniques since the passage of the Detainee Treatment Act.

Although Hayden pledged objectivity in his opening statement, he let slip his real intention under questioning by Levin. Hayden said the war on terror "is fundamentally a war of ideas. And we have to skew our intelligence to support the other elements of national power as well." Hayden admitted he will skew the intelligence to fit Bush's agenda.

During the hearing, Wyden nailed it. He asked Hayden, "Where is the independent check, General, the independent check that can be verified on these programs that the newspapers are reporting on?"

James Madison wrote in 1822: "A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors must arm themselves with the power which knowledge gives."

General Michael Hayden as CIA director will see to it that we continue to be kept in the dark about how our liberties are swiftly vanishing. The future of our democracy is at stake.

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What Will it Take?

Recent revelations indicate that the President of the United States continues to flout the law.

In December, we learned that Bush signed a secret order in 2002 authorizing the National Security Agency to violate the Foreign Intelligence Surveillance Act by wiretapping without a warrant. Two weeks ago, the Boston Globe revealed that Bush has claimed authority to disobey more than 750 laws passed by Congress. And last week, USA Today reported that he has been secretly collecting the domestic telephone records of tens of millions of Americans.

This is nothing new.

In 2003, Bush invaded a sovereign country in violation of the United Nations Charter. His administration routinely tortures prisoners, rendering some to countries that have perfected the art of torture. The US laws prohibiting torture are absolute; torture is never permitted, even in time of war.

What will it take for Congress to exercise its Constitutional authority to stop the president when he has gone too far?

Every time another instance of Bush's lawbreaking emerges, a handful of lawmakers express indignation. Senator Arlen Specter (R-Pa.) talked tough when the secret NSA program became public a few months ago. But when Bush mouthpiece Alberto Gonzales appeared before the Senate Judiciary Committee, Specter skillfully threw him softballs to dilute the thrust of the administration's illegal spying.

"Maverick" John McCain (R-Ariz.) is busy defending Bush's Iraqi disaster and pandering to Jerry Falwell at "Liberty University."

The Republicans aren't the only ones in Congress who are asleep at the wheel. When Senator Russell Feingold (D-Wis.) made a motion to censure Bush for his illegal NSA spying, all Democratic senators, with a couple of exceptions, ran for cover.

Edward Kennedy (D-Mass.), Barack Obama (D-Ill.), John Kerry (D-Mass.) and Hillary Clinton (D-NY) sat on their hands.

Clinton, the likely 2008 Democratic presidential candidate, is a major Bush ally when it comes to foreign policy. As our brave soldiers continue to die in his illegal, gratuitous war, Clinton opposes withdrawal any time soon. "Nor do I believe that we can or should pull out of Iraq immediately," she said. Clinton advocates leaving behind "a small contingent in safer areas with greater intelligence and quick strike capabilities" - in other words, the 14 "enduring bases" Bush is building in Iraq.

And as Bush ramps up his dangerous rhetoric against Iran, following the same game plan he used in the run-up to his Iraq war, Clinton eggs him on.

In January, Clinton challenged Bush to get tough with Iran. In a line from Bush's playbook, she told an audience at Princeton University's Woodrow Wilson School, "We cannot take any option off the table in sending a clear message to the current leadership of Iran - that they will not be permitted to acquire nuclear weapons."

Never mind the absence of any evidence that Iran is actually acquiring nukes.

To grease the wheels for his impending attack on Iran, Bush has nominated yes-man General Michael Hayden to head the CIA. Hayden was in charge of the NSA while it was keeping track of our phone calls. A Senate confirmation of Hayden will ensure that Bush receives the intelligence he wants to fit his policy of regime change in Iran.

Where's the accountability?

Since George W. Bush took the reins of government more than five years ago and began to systematically unravel the separation of powers and the rule of law, Congress has opened no investigations with subpoena power to hold the president accountable.

The Justice Department's "inquiry" into Bush's NSA spying program ended abruptly last week when the National Security Agency refused to grant DOJ lawyers necessary security clearances.

Bush justifies his warrantless surveillance programs as essential to keep America safe. Yet, as Frank Rich pointed out in Sunday's New York Times, these programs "may have more to do with monitoring 'traitors' like reporters and leakers than with tracking terrorists."

In an attempt to neuter the press, Team Bush has been tracking the phone numbers reporters at ABC News, the New York Times and the Washington Post call.

"What we have here is a clandestine surveillance program of enormous size, which is being operated by members of the administration who are subject to no limits or scrutiny beyond what they deem to impose on one another," the Times wrote in an editorial last week.

In response to a suit filed by the Electronic Frontier Foundation against AT&T for its alleged participation in the government's electronic surveillance program, the Bush administration filed secret statements in a motion to dismiss. Bush contends that allowing the case to proceed would jeopardize national security.

With Bush's popularity at an all-time low, the Democrats are in a prime position to take back both houses of Congress. But even if the gerrymandering by Delay & Co. doesn't prevent a shift in Congressional power, there is no guarantee that the new power brokers in Congress would stand up to Bush. Indeed, House Democratic leader Nancy Pelosi has ruled out impeachment of the president.

As we witness the deployment of 6,000 precious National Guard troops to the border in a photo-op designed to boost support for Republicans in the November election, we can take solace in a recent suggestion going around:

The members of Congress should resign and undocumented immigrants should take over because they will do jobs that Americans won't do.

What will it take for Congress to do its job?

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Spinning Fear

The terror’s in the room.
- CBS Journalist Edward R. Murrow, 1954 (Good Night and Good Luck)

The only thing we have to fear is fear itself.
- Pres. Franklin D. Roosevelt, First Inaugural Address, Mar. 4, 1933


During the 1950’s, our government succumbed to the fear of Communism hyped by Senator Joseph McCarthy. People lost their jobs, lives were ruined, and many committed suicide in response to the “red scare.” Fear pervaded every facet of life, leading neighbors to inform on one another. CBS newscaster Edward R. Murrow was one of the few journalists who had the courage to stand up to the fear-mongering and bring the truth to the American people. Describing the omnipresent fear that the government was fostering, Murrow told his colleagues, “The terror’s in the room.”

It’s dejá vu with the Bush administration ensuring that terror is always in the room. Since Sept. 11, 2001, George W. Bush has successfully manipulated the memory of the terrorist attacks to maintain power and mute effective criticism of his dangerous and illegal policies.

Bush continues to exploit 9/11, and the media is complicit in the hype. Cable news stations keep us informed of an “elevated” terror alert level.

The month after the 9/11 attacks, former Attorney General John Ashcroft rammed The USA Patriot Act through a Congress terrified of looking soft on terror. That same Congress had rejected many of the act’s provisions months earlier because they threatened civil liberties.

Ashcroft warned that criticism of the government’s policies “only aids terrorists.” His successor, Alberto Gonzales, told the Senate Judiciary Committee last week, “We remain a nation at war.”

The war is in Iraq, created from whole cloth by George W. Bush. There were no terrorists in Iraq before Bush invaded that country, changed its regime and occupied its land. Now it is a breeding ground for terrorism.

Hundreds of men are being held like animals, tortured and abused in the US military prison at Guantánamo Bay. Only a handful of them have been charged with crimes. The despicable conditions there have caused many to participate in a hunger strike. Rather than suffer the embarrassment of dying prisoners, jailers have been force-feeding them. They tie the prisoners down and insert large, unsterilized tubes down their noses with no anesthesia. Some call it a form of torture.

Reports from Guantánamo and pictures of the torture of Iraqi prisoners by US forces at Abu Ghraib prison have also fanned the flames of anti-American sentiment.

Bush calls his illegal domestic surveillance by the National Security Agency the “Terrorist Surveillance Program.” Dick Cheney told PBS’ Jim Lehrer that “this program has saved thousands of American lives.” Yet there’s no way to prove – or disprove – Cheney’s claim.

The Washington Post reported that, of the thousands of calls Bush’s NSA program has intercepted, almost none relate to anything approximating terrorism.

The hallmark of the Bush administration is secrecy. CIA Director Porter Goss wrote in a recent op-ed in the New York Times, “Disclosure of classified intelligence inhibits our ability to carry out our mission and protect the nation.”

Yet, as whistleblower Sibel Edmonds pointed out recently, the 9/11 Commission concluded that only “publicity” could have prevented the attacks. Had Osama Bin Laden and Khalid Sheikh Mohammed known the so-called 20th hijacker Zacarias Moussaoui had been arrested, they would have called off the attacks. The 9/11 Commission sharply criticized the government for classifying too much information.

In 2003, the Bush administration rescinded Clinton’s rule that information should not be classified “if there is significant doubt” that releasing it would harm national security.

The deputy undersecretary of defense for counterintelligence and security testified at a March 2005 congressional hearing that 50 percent of the Pentagon’s information was over-classified; the head of the Information Security Oversight Office said it was “even beyond 50 percent.”

When whistleblowers and leakers reveal information critical of Bush policies, the administration mounts an attack on the messenger. In response to the New York Times report on the NSA spying program, the government launched an investigation to determine who leaked the information to the Times. When Gonzales tried to turn criticism of the program into an assault on the leakers, Senator Patrick Leahy declared, “Thank god we have press that tell us what you’re doing because you’re not telling us.”

After the Times carried its report of the NSA program, some senators refused to vote to renew provisions of the Patriot Act that were due to expire on December 31, 2005. A last-minute compromise was cobbled together to extend those provisions for five weeks.

Just as the five week period was about to run out, Bush announced with great fanfare that an October 2001 al Qaeda plan to attack the tallest building on the West Coast had been thwarted by an unnamed Southeast Asian country. Once again, we have no corroboration of the accuracy of Bush’s claim. His past lies lead many to question the truthfulness of his report.

Bush gave no credit to the NSA spying program. He most certainly would have if it had foiled the plot. The day after Bush’s “revelation,” Congress announced it had reached an agreement to make the Patriot Act permanent. Once again, the manipulation of fear succeeded in neutering the Congress.

Another example of the Bush administration’s selective revelations of its own secret information is the leaking of former CIA operative Valerie Plame’s name to journalists. The leak was strategically designed to punish Plame’s husband Joseph Wilson for blowing the whistle on Bush’s lies used to bolster support for his impending invasion of Iraq.

The most famous leaker in United States history is Daniel Ellsberg, who released the Pentagon Papers to the New York Times in 1971. Those documents revealed the lies and hypocrisy of US policy in Southeast Asia. In 2003, Ellsberg told Salon.com writer Michelle Goldberg, “We’re now in an aggressive, costly war. The While House had to lie about those policies to make them viable, and when you lie you have to keep the lies secret, you have to intimidate people who might be inclined to tell the truth, all that goes together. Why do they do it?,” he asked rhetorically. “Wilson and I have no trouble knowing why they did it. They don’t want people to act the way we do.”

Franklin D. Roosevelt assumed the mantle of President at the height of the Great Depression. People were broke, out of work, and afraid there might not be a next meal. Roosevelt told them, “The only thing we have to fear is fear itself – nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.” The people jumped on board with his New Deal, and pulled themselves out of the depression. FDR didn’t exploit people’s real fears. He courageously challenged them to face their fears and overcome them.

The Bush administration continues to perfect the art of terrifying. Many in Congress live in fear of losing their seats if they appear soft on terrorism.

But most Americans oppose Bush’s illegal Iraq war and his secret spying program. The power to stop this war and the assault on our civil liberties rests in the hands of the people. Congress is reactive. It reacts to Bush’s tactics of manipulation. But it will not be able to avoid reacting to an overwhelming call by the people to check the imperial executive.

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Bush Mouthpiece Defends Illegal Spying

Attorney General Alberto Gonzales was called before the Senate Judiciary Committee on February 06 to explain why George W. Bush's program of warrantless spying on Americans is lawful.

Before Gonzales began his testimony, the committee voted along party lines to dispense with the oath. Thus, if Gonzales were to lie, he could not be convicted or even charged with perjury, which requires the lie be made under oath. Why would the Republican senators insist that Gonzales not be sworn to tell the truth unless they expected him to lie?

Gonzales testified that Bush authorized his "Terrorist Surveillance Program" in late 2001, and has renewed it every 45 days since then. The program allows the National Security Agency to eavesdrop on telephone and computer communications of Americans in the United States if the NSA decides there is probable cause to believe that one party is a member or agent of al Qaeda or an affiliated terrorist organization, provided one party to the conversation is overseas.

The program is so highly classified that Gonzales refused to tell the senators how many US citizens' emails or phone calls had been intercepted, whether there have been abuses, and whether anyone had been disciplined for abuses.

Bush established this program to circumvent the Foreign Intelligence Surveillance Act. Congress enacted FISA in 1978 in response to the Nixon administration's abuses of national security wiretaps, which it used against its domestic opponents under the guise of conducting counterintelligence investigations. A senate committee chaired by Idaho Senator Frank Church documented the NSA's abuses that led to the enactment of FISA.

FISA requires that the government convince a judge that there is probable cause to believe the target of the surveillance is a foreign power or the agent of a foreign power. FISA specifically allows for warrantless wartime domestic electronic surveillance, but only for the first 15 days after Congress declares war.

By its express terms, FISA provides that FISA and specified provisions of the federal criminal code (which governs wiretaps for criminal investigation) are the "exclusive means by which electronic surveillance … may be conducted."

FISA anticipates the need to act quickly by allowing a warrantless wiretap, provided the government applies for a FISA court order within 72 hours. However, Gonzales testified that the FISA procedure was "burdensome." He cited the paperwork as an impediment to the "nimble" gathering of intelligence. Although both the Department of Justice and the NSA have batteries of lawyers, Gonzales said we "can't afford to pose layers of lawyers" in the process.

Gonzales insisted that Bush's program complies with FISA because FISA exempts from criminal liability those who conduct electronic surveillance without following FISA procedures where such surveillance is "authorized by statute." Gonzales maintained that Congress's authorization for the use of military force (AUMF) passed shortly after the September 11, 2001, attacks was a statute that authorizes surveillance outside of FISA. He cited the Supreme Court's decision in Hamdi v. Rumsfeld, which said the AUMF allows for the detention of US citizen enemy combatants in spite of another statute governing detentions of US citizens.

However, the Hamdi Court determined that the AUMF permits the use of force only against people captured on the battlefield during the Afghanistan war. When the Bush administration asked former Senate majority leader Tom Daschle to include the words "inside the United States" in the AUMF, he refused, and those words do not appear in the resolution.

Gonzales also said that the president's commander in chief powers allow warrantless wiretaps. But as Justice Jackson wrote in the seminal case of Youngstown Sheet & Tube Co. v. Sawyer, the president's power is "at its lowest ebb" when he acts in defiance of "the expressed or implied will of Congress." Nowhere is Congress's intent expressed more clearly than in FISA, which comprises the exclusive scheme for electronic surveillance to gather intelligence.

Congress's October 2001 amendment of FISA in the USA Patriot Act underscores its intent that FISA remain the exclusive means for authorizing intelligence wiretapping. Gonzales was asked why the administration didn't approach Congress to amend FISA again if it needed more flexibility to fight terrorism. Gonzales said he opposes amending FISA, ironically maintaining it would interfere with the NSA program.

So why is the Bush administration loathe to obtain warrants to authorize wiretaps?

"The most logical reason for not getting a warrant is that the president's intelligence acolytes, who behave as though they graduated from the Laurel and Hardy school of data mining, have not been able to demonstrate that the people being spied upon are connected to Al Qaeda or any other terror organization," Bob Herbert wrote in yesterday's New York Times.

In other words, even the super-secret FISA court may be refusing to give Bush what he wants because he is overreaching.

A rare May 2002 opinion of the FISA court stated that in March of 2001, the government had reported misstatements in a series of FISA applications. The court modified then-Attorney General John Ashcroft's request for expanded intelligence-gathering procedures. In November 2002, the FISA appeals court reversed the lower court and granted Ashcroft's request. Nonetheless, Bush continued his end-run around FISA with the NSA program.

Gonzales, who said the government still uses FISA in some cases, would not respond when Senator Arlen Specter asked him why he didn't take the broad NSA program to the FISA court for approval. Gonzales wouldn't say whether he tells the FISA court that information supporting a warrant request was gathered through the NSA program. And he refused to tell Specter whether the FISA court is declining to issue warrants because it is not satisfied with the NSA program.

In a February 2003 report on FISA implementation failures, the Senate Judiciary Committee uncovered several problems: "a misunderstanding of the rules governing the application procedure, varying interpretations of the law among key participants, and a break-down of communication among all those involved in the FISA application process. Most disturbing," the committee found, "is the lack of accountability that has permeated the entire application procedure."

The committee concluded that "key FBI agents and officials were inadequately trained in important aspects of not only FISA, but also fundamental aspects of criminal law."

Notably, the report determined that "in the time leading up to the 9/11 attacks, the FBI and DoJ had not devoted sufficient resources to implementing the FISA, so that long delays both crippled enforcement efforts and demoralized line agents."

At the end of the hearing, Gonzales let slip the real reason Bush set up a program to evade FISA. Gonzales said that if the government had to apply for a FISA warrant, it "can't begin surveillance based on a whim of someone at NSA."

Gonzales would not tell the senators whether Bush has authorized other secret programs besides the NSA spying. Gonzales refused to say whether the government could wiretap purely domestic calls without a warrant, or whether he has the authority to search the first class mail of American citizens or to examine people's medical records. When Republican Senator John Cornyn asked him whether law enforcement could shoot down a plane with drugs, Gonzales said, "I'd have to think about that."

Gonzales declined to rule out the president's commander in chief power to torture, notwithstanding Congress's passage of the McCain Amendment on December 30. When Republican Senator Lindsey Graham asked him whether a Congressional statute that forbids abuse of prisoners could infringe on the president's commander in chief powers, Gonzales said, "It depends."

Graham was concerned that the "inherent authority of the president" theory that Gonzales set forth "could basically neuter the Congress and weaken the courts." Graham said he had "never envisioned that the AUMF would give the president carte blanche to go around FISA." Graham worried that it "would be harder for the next president to get a use of force resolution." He said, "When a nation is at war, you need checks and balances more than ever."

Bruce Fein, a former Justice Department official in the Reagan administration, predicted that Bush's theory could be used to authorize internment camps for groups of US citizens the president deems suspicious.

Senator Richard Durbin (D-Ill.) said, "Our greatest fear is that this president will go far beyond" the NSA program and "comb through thousands of ordinary Americans' email."

Although Gonzales continually waved the 9/11 flag in his defense of the NSA program, the Washington Post reported Sunday that nearly all of the thousands of Americans' calls that have been intercepted have revealed nothing pertinent to terrorism.

After the non-partisan Congressional Research Service issued a 44-page analysis that concluded the NSA program was unlawful, House Intelligence Committee chair Rep. Pete Hoekstra insisted on assurances that CRS "truly provides 'comprehensive and reliable' legislative research that is 'free of partisan or other bias.'"

Former Colorado Senator Gary Hart, a member of the Church Committee in the 1970s, said, "What we're experiencing now, in my judgment, is a repeat of the Nixon years. Then it was justified by civil unrest and the Vietnam war. Now it's terrorism and the Iraq war."

When Senator Charles Grassley asked Gonzales if he thought it was incredible that they were having the Senate Judiciary Committee hearing, Gonzales replied, "I think we have a good story to tell."

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