America... Spying on Americans II

Bank Data Is Sifted by U.S. in Secret to Block Terror

Quote:

Media Refuses to Hold Surveillance Story
Jun 23 12:23 AM US/Eastern
By JUSTIN BACHMAN
AP Business Writer

NEW YORK

The Bush administration and The New York Times are again at odds over national security, this time with new reports of a broad government effort to track global financial transfers.

The newspaper, which in December broke news of an effort by the National Security Agency to monitor Americans' telephone calls and e- mails, declined a White House request not to publish a story about the government's inspection of monies flowing in and out of the country.

The Los Angeles Times also reported on the issue Thursday night on its Web site, against the Bush administration's wishes. The Wall Street Journal said it received no request to hold its report of the surveillance.

Administration officials were concerned that news reports of the program would diminish its effectiveness and could harm overall national security.

"It's a tough call; it was not a decision made lightly," said Doyle McManus, the Los Angeles Times' Washington bureau chief. "The key issue here is whether the government has shown that there are adequate safeguards in these programs to give American citizens confidence that information that should remain private is being protected."

Treasury Department officials spent 90 minutes Thursday meeting with the newspaper's reporters, stressing the legality of the program and urging the paper to not publish a story on the program, McManus said in a telephone interview.

"They were quite vigorous, they were quite energetic. They made a very strong case," he said.

In its story, The New York Times said it carefully weighed the administration's arguments for withholding the information and gave them "the most serious and respectful consideration."

"We remain convinced that the administration's extraordinary access to this vast repository of international financial data, however carefully targeted use it may be, is a matter of public interest," said Bill Keller, the Times' executive editor.

In December, Bush used part of his weekly radio address to criticize The New York Times' initial eavesdropping story as helping to inform enemies, saying "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

McManus said the other factor that tipped the paper's decision to publish was the novel approach government was using to gather data in another realm without warrant or subpoena.

"Police agencies and prosecutors get warrants all the time to search suspects' houses, and we don't write stories about that," he said. "This is different. This is new. And this is a process that has been developed that does not involve getting a specific warrant. It's a new and unfamiliar process."

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ, since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which require such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).

Deb, didn't Tico argue that very point with you back-and-forth for some time?

Cycloptichorn

Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say

June 30 (Bloomberg) -- The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court.

The allegation is part of a court filing adding AT&T, the nation's largest telephone company, as a defendant in a breach of privacy case filed earlier this month on behalf of Verizon Communications Inc. and BellSouth Corp. customers. The suit alleges that the three carriers, the NSA and President George W. Bush violated the Telecommunications Act of 1934 and the U.S. Constitution, and seeks money damages.

``The Bush Administration asserted this became necessary after 9/11,'' plaintiff's lawyer Carl Mayer said in a telephone interview. ``This undermines that assertion.''

The lawsuit is related to an alleged NSA program to record and store data on calls placed by subscribers. More than 30 suits have been filed over claims that the carriers, the three biggest U.S. telephone companies, violated the privacy rights of their customers by cooperating with the NSA in an effort to track alleged terrorists.

``The U.S. Department of Justice has stated that AT&T may neither confirm nor deny AT&T's participation in the alleged NSA program because doing so would cause `exceptionally grave harm to national security' and would violate both civil and criminal statutes,'' AT&T spokesman Dave Pacholczyk said in an e-mail.

U.S. Department of Justice spokesman Charles Miller and NSA spokesman Don Weber declined to comment.

Pioneer Groundbreaker

The NSA initiative, code-named ``Pioneer Groundbreaker,'' asked AT&T unit AT&T Solutions to build exclusively for NSA use a network operations center which duplicated AT&T's Bedminster, New Jersey facility, the court papers claimed. That plan was abandoned in favor of the NSA acquiring the monitoring technology itself, plaintiffs' lawyers Bruce Afran said.

The NSA says on its Web site that in June 2000, the agency was seeking bids for a project to ``modernize and improve its information technology infrastructure.'' The plan, which included the privatization of its ``non-mission related'' systems support, was said to be part of Project Groundbreaker.

Mayer said the Pioneer project is ``a different component'' of that initiative.

Mayer and Afran said an unnamed former employee of the AT&T unit provided them with evidence that the NSA approached the carrier with the proposed plan. Afran said he has seen the worker's log book and independently confirmed the source's participation in the project. He declined to identify the employee.

Stop Suit

On June 9, U.S. District Court Judge P. Kevin Castel in New York stopped the lawsuit from moving forward while the Federal Judicial Panel on Multidistrict Litigation in Washington rules on a U.S. request to assign all related telephone records lawsuits to a single judge.

Robert Varettoni, a spokesman for Verizon, said he was unaware of the allegations against AT&T and declined to comment.

Earlier this week, he issued a statement on behalf of the company that Verizon had not been asked by the NSA to provide customer phone records from either its hard-wired or wireless networks. Verizon also said that it couldn't confirm or deny ``whether it has any relationship to the classified NSA program.''

Mayer's lawsuit was filed following a May 11 USA Today report that the U.S. government was using the NSA to monitor domestic telephone calls. Earlier today, USA Today said it couldn't confirm its contention that BellSouth or Verizon had contracts with the NSA to provide a database of domestic customer phone call records.

Jeff Battcher, a spokesman for Atlanta-based BellSouth, said that vindicated the company.

``We never turned over any records to the NSA,'' he said in a telephone interview. ``We've been clear all along that they've never contacted us. Nobody in our company has ever had any contact with the NSA.''

The case is McMurray v. Verizon Communications Inc., 06cv3650, in the Southern District of New York.

Dead Man Walking
Hamdan sounds the death knell for the NSA's Terrorist Surveillance Program.

INSULT TO INJURY:
The White House is insulting your intelligence if it expects you to believe that its new policy of extending Geneva Conventions protections to all detainees in U.S. military custody is sufficient to redress the proven abuse and illegality of its war on terror. The very obvious loophole is what will happen to detainees outside of U.S. military custody--as in CIA custody, such as the so-called "black sites," where Geneva is a sick joke. Which is a fairly apt description of this new White House attempt at damage control.

Senate Judiciary Committee Chairman Arlen Specter announced today that the White House has agreed to a court review of the warrantless wiretapping program. Specter said the following at a press conference today:

I am authorized to say that if the bill is not changed, the president will submit the terrorist surveillance program to the Foreign Intelligence Surveillance Court.

But what Specter didn't say is that his legislation does not require President Bush to submit the program to the FISA court; it merely gives the president the option. The AP reports:

An administration official who spoke on condition of anonymity said the bill's language gives the president the option of submitting the program to the intelligence court, rather than making the review a requirement.

Specter appears to have received assurances from the White House that, if his bill is passed without changes, Bush would agree to exercise the option and submit the warrantless wiretapping program to the court for a judgment on its constitutionality. This compromise is a sham because it makes optional what Bush is already required to do. Under the FISA law, the administration can wiretap persons inside the U.S. But it is required to demonstrate that the targets are agents of a foreign power, like al Qaeda or their affiliates.

Sen. Patrick Leahy accurately characterized what Bush is agreeing to: "[Bush is] saying, if you do every single thing I tell you to do, I'll do what I should have done anyway." The Specter bill makes it optional for Bush to follow the law, while rewarding him for illegal conduct.

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