Judge Orders Halt to Warrantless Surveillance

From AOL News:

Noting “there are no hereditary Kings in America and no powers not created by the Constitution,” a federal judge ruled Thursday that President Bush had exceeded his authority when he allowed the National Security Agency to eavesdrop on Americans without a warrant.

U.S. District Judge Anna Diggs Taylor in Detroit said the surveillance by the NSA violates the rights to free speech and privacy, as well as the separation of powers enshrined in the Constitution.  

The Bush administration said the program is a vital tool in the fight against terrorism and said it would seek a reversal by the 6th U.S. Circuit Court of Appeals in Cincinnati.  

White House press secretary Tony Snow said the Bush administration “couldn’t disagree more with this ruling.” He said the program carefully targets communications of suspected terrorists and “has helped stop terrorist attacks and saved American lives.”  

Taylor ordered an immediate halt to the program, but the government said it would ask for a stay of that order pending appeal. The American Civil Liberties Union, which brought the suit, said it would oppose a stay but agreed to delay enforcement of the injunction until Taylor hears arguments Sept. 7.  

The ACLU filed the lawsuit in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.  

The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists.  

The government argued that the program is well within the president’s authority but said proving that would require revealing state secrets.  

The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.  

Taylor agreed, writing in her 43-page opinion that “Plaintiffs need no additional facts” to establish their claims.  

Taylor, a Carter appointee, said the government appeared to argue that the president has the “inherent power” to violate laws of Congress and the First and Fourth amendments to the Constitution.  

“We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution,” Taylor wrote. “There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.”  

The Justice Department said the program “is lawful and protects civil liberties.”  

ACLU executive director Anthony Romero called Taylor’s opinion “another nail in the coffin in the Bush administration’s legal strategy in the war on terror.”  

“At its core, today’s ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that’s necessary to our democracy,” he told reporters.  

One of the plaintiffs in the case, Detroit immigration lawyer Noel Saleh, said the NSA program had made it difficult to represent his clients, some of whom the government accuses of terrorist connections.  

Many of those cases require him to speak to witnesses overseas. “There’s no way I or my clients would feel secure” about the privacy of those phone conversations, Saleh said.  

Saleh, a leader in Michigan’s large Arab-American community, said the program affected not only lawyers, scholars and journalists whose professional activities require them to communicate overseas, but anyone with relatives abroad.  

For example, Saleh said there were “constant phone calls between the United States and Lebanon” in recent weeks, as people here sought news of their families amid the violence in the Middle East. The NSA was likely listening in on many of those calls, he said.  

“People have the right to be concerned about their family, to check on the welfare of their family and not be spied on by the government,” he said.  

In Washington, Republicans expressed hope that the decision would be overturned, while many Democrats praised the ruling.  

“It is disappointing that a judge would take it upon herself to disarm America during a time of war,” Rep. Pete Hoekstra, R-Mich., chairman of the House Intelligence Committee, said in a statement.  

West Virginia Sen. Jay Rockefeller, the top Democrat on the Senate Intelligence Committee, said the decision shows the executive branch needs more external reviews.  

“The administration is wrongly convinced that it can run the country without Congress or oversight. This is their tragic failure, and the courts understand it,” Rockefeller said. “The nation’s security is serious business – and particularly during such a dangerous time – it requires constant oversight, input and understanding from the Congress, the courts, and the American people.”  

Both Hoekstra and Rockefeller have been briefed extensively on the program’s details.  

Sen. Arlen Specter, R-Pa., the Senate Judiciary Committee chairman, is championing a compromise that would allow Bush to submit the surveillance program to the Foreign Intelligence Surveillance Court for a one-time test of its constitutionality. Civil liberties groups say such a review would be a sham.  

Attorney General Alberto Gonzales said the administration believes such legislation is not necessary to make the program legal but has committed to working with Specter on it. He said it may address some of the concerns raised in the judge’s ruling.  

But Taylor’s opinion was so sweeping that congressional approval of the program would not address her concerns, said Richard Pildes, a professor at New York University School of Law.  

“The debate about this program has overwhelmingly been about whether Congress has to authorize it for it to be constitutional. But beyond holding that Congress does have to do so, this judge has suggested it would violate the Constitution even if Congress authorized it,” Pildes said.  

“Until Congress actually addresses these questions, I would expect most appellate courts to be extremely reluctant to address many of the questions this judge was willing to weigh in on.”  

Taylor dismissed one claim in the ACLU’s lawsuit that dealt with data-mining of phone records. The lawsuit alleged that the NSA “uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time.”  

Taylor said not enough had been publicly revealed about that program to support the claim and further litigation would jeopardize state secrets.  

Multiple lawsuits have been filed related to data-mining against phone companies, accusing them of improperly turning over records to the NSA.  

Another Bush Administration Official Indicted Over Abramoff

From The Washington Post:

An Interior Department official who has acknowledged receiving meals and tickets to sporting events from former lobbyist Jack Abramoff has been charged with filing a false financial disclosure report.

Roger G. Stillwell, an employee of the department’s Insular Affairs Office, was charged with a single misdemeanor count of making a false filing, according to papers filed Tuesday in U.S. District Court. Federal officials said he is expected to enter a guilty plea at a court appearance set for July 21 before Magistrate Deborah A. Robinson.

Stillwell is an officer on the desk that handles the Commonwealth of the Northern Mariana Islands, a U.S. territory whose government hired Abramoff as a lobbyist. The Washington Post reported in December that Stillwell was among the Interior officials whom Abramoff’s team tried to cultivate.

Stillwell could not be reached to comment yesterday, and his lawyer, Justin Murphy, did not return a telephone call seeking comment. Stillwell is accused of falsely certifying that he did not receive gifts from a prohibited source in a financial disclosure report filed in October 2004 covering the previous fiscal year.

Stillwell told The Post last year that he accepted dinners at Abramoff’s restaurant, Signatures, and tickets to Washington Redskins games. He justified those actions by saying they occurred while he was a contract employee at Interior, not a federal employee.

He told The Post that he had sent Abramoff copies of e-mails he sent to his boss. Stillwell said he saw “nothing wrong with doing that” because they did not contain confidential information. “I don’t feel it was a conflict of interest,” Stillwell told The Post.

During the 1990s, before Stillwell joined the Interior Department, his communications firm did work for the Marianas government, according to an audit by the island government.

Stillwell, a Democrat, said in the interview with The Post that he worked closely with Abramoff when their representation of the island government overlapped beginning in 1995.

Stillwell is the first Interior official charged in the probe. The case against him is being brought by the Justice Department task force investigating the Abramoff lobbying scandal, which includes criminal investigators from the office of Interior’s inspector general. Abramoff and three lobbying associates have pleaded guilty in the wide-ranging corruption investigation, which focuses in part on their dealings with the Interior Department and with Congress on behalf of their tribal and territorial clients.

Bush Administration Now Spying On Banking, Without A Warrant

From The New York Times:

Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.

The program is limited, government officials say, to tracing transactions of people suspected of ties to Al Qaeda by reviewing records from the nerve center of the global banking industry, a Belgian cooperative that routes about $6 trillion daily between banks, brokerages, stock exchanges and other institutions. The records mostly involve wire transfers and other methods of moving money overseas or into and out of the United States. Most routine financial transactions confined to this country are not in the database.

Viewed by the Bush administration as a vital tool, the program has played a hidden role in domestic and foreign terrorism investigations since 2001 and helped in the capture of the most wanted Qaeda figure in Southeast Asia, the officials said. The program, run out of the Central Intelligence Agency and overseen by the Treasury Department, “has provided us with a unique and powerful window into the operations of terrorist networks and is, without doubt, a legal and proper use of our authorities,” Stuart Levey, an undersecretary at the Treasury Department, said in an interview Thursday. The program is grounded in part on the president’s emergency economic powers, Mr. Levey said, and multiple safeguards have been imposed to protect against any unwarranted searches of Americans’ records.

The program, however, is a significant departure from typical practice in how the government acquires Americans’ financial records. Treasury officials did not seek individual court-approved warrants or subpoenas to examine specific transactions, instead relying on broad administrative subpoenas for millions of records from the cooperative, known as Swift.

That access to large amounts of sensitive data was highly unusual, several officials said, and stirred concerns inside the administration about legal and privacy issues.

“The capability here is awesome or, depending on where you’re sitting, troubling,” said one former senior counterterrorism official who considers the program valuable. While tight controls are in place, the official added, “The potential for abuse is enormous.”

The program is separate from the National Security Agency’s efforts to eavesdrop without warrants and collect domestic phone records, operations that have provoked fierce public debate and spurred lawsuits against the government and telecommunications companies. But all the programs grew out of the Bush administration’s desire to exploit technological tools to prevent another terrorist strike, and all reflect attempts to break down longstanding legal or institutional barriers to the government’s access to private information about Americans and others inside the United States.

Officials described the Swift program as the biggest and most far-reaching of several secret efforts to trace terrorist financing. Much more limited agreements with other companies have provided access to A.T.M. transactions, credit card purchases and Western Union wire payments, the officials said.

Nearly 20 current and former government officials and industry executives discussed aspects of the Swift operation with The New York Times on condition of anonymity because the program remains classified. Some of those officials expressed reservations about the program, saying that what they viewed as an urgent, temporary measure had become permanent nearly five years later without specific Congressional approval or formal authorization.

Data from the Brussels-based banking consortium, formally known as the Society for Worldwide Interbank Financial Telecommunication, has allowed officials from the C.I.A., the Federal Bureau of Investigation and other agencies to examine “tens of thousands” of financial transactions, Mr. Levey said.

While many of those transactions have occurred entirely on foreign soil, officials have also been keenly interested in international transfers of money by individuals, businesses, charities and other organizations under suspicion inside the United States, officials said. A small fraction of Swift’s records involve transactions entirely within this country, but Treasury officials said they were uncertain whether any had been examined.

Swift executives have been uneasy at times about their secret role, the government and industry officials said. By 2003, the executives told American officials they were considering pulling out of the arrangement, which began as an emergency response to the Sept. 11 attacks, the officials said. Worried about potential legal liability, the Swift executives agreed to continue providing the data only after top officials, including Alan Greenspan, then chairman of the Federal Reserve, intervened. At the same time, new controls were introduced.

Among the program’s safeguards, government officials said, is an outside auditing firm that verifies that the data searches are based on a link to terrorism intelligence. Swift and Treasury officials said they were aware of no abuses. But Mr. Levey, the Treasury official, said one person had been removed from the operation for conducting a search considered inappropriate.

“We are not on a fishing expedition,” Mr. Levey said. “We’re not just turning on a vacuum cleaner and sucking in all the information that we can.”

Treasury officials said Swift was exempt from American laws restricting government access to private financial records because the cooperative was considered a messaging service, not a bank or financial institution.

But at the outset of the operation, Treasury and Justice Department lawyers debated whether the program had to comply with such laws before concluding that it did not, people with knowledge of the debate said. Several outside banking experts, however, say that financial privacy laws are murky and sometimes contradictory and that the program raises difficult legal and public policy questions.

The Bush administration has made no secret of its campaign to disrupt terrorist financing, and President Bush, Treasury officials and others have spoken publicly about those efforts. Administration officials, however, asked The New York Times not to publish this article, saying that disclosure of the Swift program could jeopardize its effectiveness. They also enlisted several current and former officials, both Democrat and Republican, to vouch for its value.

Bill Keller, the newspaper’s executive editor, said: “We have listened closely to the administration’s arguments for withholding this information, and given 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 of it may be, is a matter of public interest.”

Swift declined to discuss details of the program but defended its role in written responses to questions. “Swift has fully complied with all applicable laws,” the consortium said. The organization said it insisted that the data be used only for terrorism investigations and had narrowed the scope of the information provided to American officials over time.

A Crucial Gatekeeper

Swift’s database provides a rich hunting ground for government investigators. Swift is a crucial gatekeeper, providing electronic instructions on how to transfer money between 7,800 financial institutions worldwide. The cooperative is owned by more than 2,200 organizations, and virtually every major commercial bank, as well as brokerage houses, fund managers and stock exchanges, uses its services. Swift routes more than 11 million transactions each day, most of them across borders.

The cooperative’s message traffic allows investigators, for example, to track money from the Saudi bank account of a suspected terrorist to a mosque in New York. Using intelligence tips about specific targets, agents search the database in what one official described as a “24-7” operation. Customers’ names, bank account numbers and other identifying information, can be retrieved, the officials said.

The data does not allow the government to track routine financial activity, like A.T.M. withdrawals, confined to this country, or to see bank balances, Treasury officials said. And the information is not provided in real time – Swift generally turns it over several weeks later. Because of privacy concerns and the potential for abuse, the government sought the data only for terrorism investigations and prohibited its use for tax fraud, drug trafficking or other inquiries, the officials said.

The Treasury Department was charged by President Bush, in a September 2001 executive order, with taking the lead role in efforts to disrupt terrorist financing. Mr. Bush has been briefed on the program and Vice President Dick Cheney has attended C.I.A. demonstrations, the officials said. The National Security Agency has provided some technical assistance.

While the banking program is a closely held secret, administration officials have conducted classified briefings to some members of Congress and the Sept. 11 Commission, the officials said. More lawmakers were briefed in recent weeks, after the administration learned The Times was making inquiries for this article. Swift’s 25-member board of directors, made up of representatives from financial institutions around the world, was previously told of the program, but it is not clear if other participants know that American intelligence officials can examine their message traffic.

Because Swift is based overseas and has offices in the United States, it is governed both by European and American laws. Several international regulations and policies impose privacy restrictions on companies that are generally regarded as more stringent than those in this country. United States law establishes some protections for the privacy of Americans’ financial data, but they are not ironclad. A 1978 measure, the Right to Financial Privacy Act, has a limited scope and a number of exceptions, and its role in national security cases remains largely untested.

Several people familiar with the Swift program said they believed they were exploiting a “gray area” in the law and that a case could be made for restricting the government’s access to the records on Fourth Amendment and statutory grounds. They also worried about the impact on Swift if the program were disclosed.

“There was always concern about this program,” a former official said.

One person involved in the Swift program estimated that analysts have reviewed international transfers involving “many thousands” of people or groups in the United States. Two other officials also placed the figure in the thousands. Mr. Levey said he could not estimate the number.

The Swift data has provided clues to terror money trails and ties between possible terrorists and organizations financing them, the officials said. In some instances, they said, the program has pointed them to new suspects, while in others it has buttressed cases already under investigation.

Among the successes was the capture of a Qaeda operative, Riduan Isamuddin, better known as Hambali, believed to be the mastermind of the 2002 bombing of a Bali resort, several officials said. The Swift data identified a previously unknown figure in Southeast Asia who had financial dealings with a person suspected of being a member of Al Qaeda; that link helped locate Hambali in Thailand in 2003, they said.

In the United States, the program has provided financial data in investigations into possible domestic terrorist cells as well as inquiries of Islamic charities with suspected of having links to extremists, the officials said.

The data also helped identify a Brooklyn man who was convicted on terrorism-related charges last year, the officials said. The man, Uzair Paracha, who worked at a New York import business, aided a Qaeda operative in Pakistan by agreeing to launder $200,000 through a Karachi bank, prosecutors said.

In terrorism prosecutions, intelligence officials have been careful to “sanitize,” or hide the origins of evidence collected through the program to keep it secret, officials said.

The Bush administration has pursued steps that may provide some enhanced legal standing for the Swift program. In late 2004, Congress authorized the Treasury Department to develop regulations requiring American banks to turn over records of international wire transfers. Officials say a preliminary version of those rules may be ready soon. One official described the regulations as an attempt to “formalize” access to the kind of information secretly provided by Swift, though other officials said the initiative was unrelated to the program.

The Scramble for New Tools

Like other counterterrorism measures carried out by the Bush administration, the Swift program began in the hectic days after the Sept. 11 attacks, as officials scrambled to identify new tools to head off further strikes.

One priority was to cut off the flow of money to Al Qaeda. The Sept. 11 hijackers had helped finance their plot by moving money through banks. Nine of the hijackers, for instance, funneled money from Europe and the Middle East to SunTrust bank accounts in Florida. Some of the $130,000 they received was wired by people overseas with known links to Al Qaeda.

Financial company executives, many of whom had lost friends at the World Trade Center, were eager to help federal officials trace terrorist money. “They saw 9/11 not just as an attack on the United States, but on the financial industry as a whole,” said one former government official.

Quietly, counterterrorism officials sought to expand the information they were getting from financial institutions. Treasury officials, for instance, spoke with credit card companies about devising an alert if someone tried to buy fertilizer and timing devices that could be used for a bomb, but they were told the idea was not logistically possible, a lawyer in the discussions said.

The F.B.I. began acquiring financial records from Western Union and its parent company, First Data Corporation. The programs were alluded to in Congressional testimony by the F.B.I. in 2003 and described in more detail in a book released this week, “The One Percent Doctrine,” by Ron Suskind. Using what officials described as individual, narrowly framed subpoenas and warrants, the F.B.I. has obtained records from First Data, which processes credit and debit card transactions, to track financial activity and try to locate suspects.

Similar subpoenas for the Western Union data allowed the F.B.I. to trace wire transfers, mainly outside the United States, and to help Israel trace the financing of about a half-dozen possible terrorist plots there, an official said.

The idea for the Swift program, several officials recalled, grew out of a suggestion by a Wall Street executive, who told a senior Bush administration official about Swift’s database. Few government officials knew much about the consortium, which is led by a Brooklyn native, Leonard H. Schrank, but they quickly discovered it offered unparalleled access to international transactions.

Swift, a former government official said, was “the mother lode, the Rosetta stone” for financial data.

Intelligence officials were so eager to exploit the Swift data that they discussed having the C.I.A. covertly gain access to the system, several officials involved in the talks said. But Treasury officials resisted, the officials said, and favored going to Swift directly.

At the same time, lawyers in the Treasury Department and the Justice Department were considering possible legal obstacles to the arrangement, the officials said.

In 1976, the Supreme Court ruled that Americans had no constitutional right to privacy for their records held by banks or other financial institutions. In response, Congress passed the Right to Financial Privacy Act two years later, restricting government access to Americans’ banking records. In considering the Swift program, some government lawyers were particularly concerned about whether the law prohibited officials from gaining access to records without a warrant or subpoena based on some level of suspicion about each target.

For many years, law enforcement officials have relied on grand-jury subpoenas or court-approved warrants for such financial data. Since the Sept. 11 attacks, the F.B.I. has turned more frequently to an administrative subpoena, known as a national security letter, to demand such records.

After an initial debate, Treasury Department lawyers, consulting with the Justice Department, concluded that the privacy laws applied to banks, not to a banking cooperative like Swift. They also said the law protected individual customers and small companies, not the major institutions that route money through Swift on behalf of their customers.

Other state, federal and international regulations place different and sometimes conflicting restrictions on the government’s access to financial records. Some put greater burdens on the company disclosing the information than on the government officials demanding it.

Among their considerations, American officials saw Swift as a willing partner in the operation. But Swift said its participation was never voluntary. “Swift has made clear that it could provide data only in response to a valid subpoena,” according to its written statement.

Indeed, the cooperative’s executives voiced early concerns about legal and corporate liability, officials said, and the Treasury Department’s Office of Foreign Asset Control began issuing broad subpoenas for the cooperative’s records related to terrorism. One official said the subpoenas were intended to give Swift some legal protection.

Underlying the government’s legal analysis was the International Emergency Economic Powers Act, which Mr. Bush invoked after the Sept. 11 attacks. The law gives the president what legal experts say is broad authority to “investigate, regulate or prohibit” foreign transactions in responding to “an unusual and extraordinary threat.”

But L. Richard Fischer, a Washington lawyer who wrote a book on banking privacy and is regarded as a leading expert in the field, said he was troubled that the Treasury Department would use broad subpoenas to demand large volumes of financial records for analysis. Such a program, he said, appears to do an end run around bank-privacy laws that generally require the government to show that the records of a particular person or group are relevant to an investigation.

“There has to be some due process,” Mr. Fischer said. “At an absolute minimum, it strikes me as inappropriate.”

Several former officials said they had lingering concerns about the legal underpinnings of the Swift operation. The program “arguably complies with the letter of the law, if not the spirit,” one official said.

Another official said: “This was creative stuff. Nothing was clear cut, because we had never gone after information this way before.”

Treasury officials would not say whether a formal legal opinion was prepared in authorizing the program, but they said they considered the government’s authority to subpoena the Swift records to be clear. “People do not have a privacy interest in their international wire transactions,” Mr. Levey, the Treasury under secretary, said.

Tighter Controls Sought

Within weeks of the Sept. 11 attacks, Swift began turning over records that allowed American analysts to look for evidence of terrorist financing. Initially, there appear to have been few formal limits on the searches.

“At first, they got everything – the entire Swift database,” one person close to the operation said.

Intelligence officials paid particular attention to transfers to or from Saudi Arabia and the United Arab Emirates because most of the Sept. 11 hijackers were from those countries.

The volume of data, particularly at the outset, was often overwhelming, officials said. “We were turning on every spigot we could find and seeing what water would come out,” one former administration official said. “Sometimes there were hits, but a lot of times there weren’t.”

Officials realized the potential for abuse, and soon narrowed the program’s targets and put in more safeguards. Among them were the auditing firm, an electronic record of every search and a form documenting the intelligence that justified each data search. Mr. Levey said the program was used only to search the records of individuals or entities, not for broader data searches.

Despite the controls, Swift executives became increasingly worried about their secret involvement with the American government, the officials said. By 2003, the cooperative’s officials were discussing pulling out because of their concerns about legal and financial risks if the program were revealed, one government official said.

“How long can this go on?” a Swift executive asked, according to the official.

Even some American officials began to question the open-ended arrangement. “I thought there was a limited shelf life and that this was going to go away,” the former senior official said.

In 2003, administration officials asked Swift executives and some board members to come to Washington. They met with Mr. Greenspan, Robert S. Mueller III, the F.B.I. director, and Treasury officials, among others, in what one official described as “a full-court press.”

The executives agreed to continue supplying records after the Americans pledged to impose tighter controls. Swift representatives would be stationed alongside intelligence officials and could block any searches considered inappropriate, several officials said. The procedural change provoked some opposition at the C.I.A. because “the agency was chomping at the bit to have unfettered access to the information,” a senior counterterrorism official said. But the Treasury Department saw it as a necessary compromise, the official said, to “save the program.”

Bush Administration Spent $30 Million Last Year On Illegally Obtained Personal Data

From the AP, Via Yahoo! News:

Federal and local police across the country — as well as some of the nation's best-known companies — have been gathering Americans' phone records from private data brokers without subpoenas or warrants.

These brokers, many of whom market aggressively across the Internet, have broken into customer accounts online, tricked phone companies into revealing information and sometimes acknowledged that their practices violate laws, according to documents obtained by The Associated Press.

Legal experts and privacy advocates said police reliance on private vendors who commit such acts raises civil liberties questions.

Those using data brokers include agencies of the Homeland Security and Justice departments — including the FBI and U.S. Marshal's Service — and municipal police departments in California, Florida, Georgia and Utah. Experts believe hundreds of other departments frequently use such services.

"We are requesting any and all information you have regarding the above cell phone account and the account holder … including account activity and the account holder's address," Ana Bueno, a police investigator in Redwood City, Calif., wrote in October to PDJ Investigations of Granbury, Texas.

An agent in Denver for U.S. Immigration and Customs Enforcement, Anna Wells, sent a similar request on March 31 on Homeland Security stationery: "I am looking for all available subscriber information for the following phone number," Wells wrote to a corporate alias used by PDJ.

Congressional investigators estimated the U.S. government spent $30 million last year buying personal data from private brokers. But that number likely understates the breadth of transactions, since brokers said they rarely charge law enforcement agencies.

A lawmaker who has investigated the industry said Monday he was concerned about data brokers.

"There's a good chance there are some laws being broken, but it's not really clear precisely which laws, said Rep. Ed Whitfield, R-Ky., head of the House Energy and Commerce investigations subcommittee that plans to begin hearings Wednesday.

Documents gathered by Whitfield's committee show data brokers use trickery, impersonation and even technology to try to gather Americans' phone records. "They can basically obtain any information about anybody on any subject," Whitfield said.

James Bearden, a Texas lawyer who represents four such data brokers, likened the companies' activities to the National Security Agency, which reportedly compiles the phone records of ordinary Americans.

"The government is doing exactly what these people are accused of doing," Bearden said. "These people are being demonized. These are people who are partners with law enforcement on a regular basis."

Many of the executives summoned to testify before Congress this week plan to refuse to answer questions, invoking their Fifth Amendment right against self incrimination.

Larry Slade, PDJ's lawyer, said no one at the company violated laws, but he acknowledged, "I'm not sure that every law enforcement agency in the country would agree with that analysis."

PDJ always provided help to police for free. "Agencies from all across the country took advantage of it," Slade said.

The police agencies told AP they used the data brokers because it was quicker and easier than subpoenas, and their lawyers believe their actions did not violate the Fourth Amendment's guarantee against unlawful search and seizure.

Some agencies, such as Immigrations and Customs Enforcement, instructed agents to stop the practice after congressional inquiries. Police in Orem, Utah, likewise plan to end the practice because of concerns about "questionable methods" used by the data brokers, Lt. Doug Edwards said.

The records also list some of America's most famous corporate names — from automakers to insurers to banks — as purchasing information on private citizens from data brokers, which often help companies track down delinquent customers.

For instance, a 2003 customer list for data broker Universal Communications Company listed Ford Motor Credit Co., the automaker's lending arm, as the single largest purchaser of phone toll records, paying $17,435 to buy such data that year. In all, Ford's lending arm spent more than $50,000 with that data broker that year. Ford also paid $9,000 to another such company, Global Information Group, in 2004, the records state.

Also on UCC's or Global Information's paying client list was the insurer State Farm's banking arm, Chrysler's consumer lending arm, Enterprise Rent-A-Car and banking giants Wells Fargo and Wachovia Financial Services.

At least 50 departments of Wachovia made data requests in 2004, accumulating thousands of dollars in charges. Most of the companies could not provide an immediate explanation when called for comment Tuesday.

Ford Motor Credit spokeswoman Meredith Libby said Tuesday her company used the vendors in the past to help locate customers who weren't paying and had disappeared but the companies "are no longer on our approved vendor lists."

Asked why Ford would need phone toll records, Libby said her company "did not necessarily say (to the vendor), `Give us this specific piece of data, but rather help us to find this person,'" and the charges for phone records were part of the process.

None of the police agencies interviewed by AP said they researched their data brokers to determine how they gather sensitive information like names associated with unlisted numbers, records of phone calls, e-mail aliases — even tracing a person's location using their cellular phone signal.

"If it's on the Internet and it's been commended to us, we wouldn't do a full-scale investigation," Marshal's Service spokesman David Turner said. "We don't knowingly go into any source that would be illegal. We were not aware, I'm fairly certain, what technique was used by these subscriber services."

At Immigration and Customs Enforcement, spokesman Dean Boyd said agents did not pay for phone records and sought approval from U.S. prosecutors before making requests. Their goal was "to more quickly identify and filter out phone numbers that were unrelated to their investigations," Boyd said.

Targets of the police interest include alleged marijuana smugglers, car thieves, armed thugs and others.

The data services also are enormously popular among collection agencies, bails bondsmen, private detectives and suspicious spouses. Customers included:

– A U.S. Labor Department employee who used her government e-mail address and phone number to buy two months of personal cellular phone records of a woman in New Jersey.

– A buyer who received credit card information about the father of murder victim Jon Benet Ramsey.

– A buyer who obtained 20 printed pages of phone calls by pro basketball player Damon Jones of the Cleveland Cavaliers.

"I'm very disappointed," Jones told AP on Tuesday. "I paid for a service and that service is being violated. I've been an upstanding guy, never been in any trouble or anything like that. I was shocked, and I really want to get to the bottom of this."

Privacy advocates bristled over data brokers gathering records for police without subpoenas.

"This is pernicious, an end run around the Fourth Amendment," said Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center which advocates tougher federal regulation of data brokers. "The government is encouraging unlawful conduct; it's not smart on the law enforcement side to be making use of information obtained improperly."

Legal experts said law enforcement agencies would be permitted to use illegally obtained information from private parties without violating the Fourth Amendment as long as police did not encourage crimes to be committed.

"If law enforcement is encouraging people in the private sector to commit a crime in getting these records, that would be problematic," said Mark Levin, a former top Justice Department official under President Reagan. "If, on the other hand, they are asking data brokers if they have any public information on any given phone numbers, that should be fine."

Levin said he nonetheless would have advised federal agents to use the practice only when it was a matter of urgency or national security and otherwise to stick to a legally bulletproof method like subpoenas for everyday cases.

Congress subpoenaed thousands of documents from data brokers describing how they collected telephone records by impersonating customers.

"I was shot down four times," data broker employee Michele Yontef complained in an e-mail in July 2005 to a colleague. Yontef was among those ordered to appear at this week's hearing.

Another company years ago even acknowledged breaking the law.

"We must break various rules of law in acquiring all the information we achieve for you," Touch Tone Information Inc. of Denver wrote to a law firm in 1998 that was seeking records of calls made on a calling card.

Congress & Courts Reassert Themselves?

Republican and Democratic House leaders join forces to protest the FBI search of a congressman's office. The Senate Intelligence Committee demands fuller briefings from the CIA. The Supreme Court hears a landmark case challenging presidential war powers.

After five years of a concerted White House campaign, there are tentative signs that Congress and the courts are beginning to push back against what has been the greatest expansion of presidential powers in a generation or more.

Those pushing back include some congressional Republicans and conservative jurists who have been among President Bush's chief allies. The efforts surely would intensify if Democrats won control of the House or Senate in November's elections – and with it the power to convene hearings and issue subpoenas.

"You ask, 'Is the tide shifting?' and I say, 'Maybe, maybe,' " says Senate Judiciary Chairman Arlen Specter, R-Pa., who has pushed for stronger congressional oversight of intelligence operations. "If you ask me if I still feel like a lonely voice, I would say that I feel like a member of a small chorus."

Some examples:

— House Speaker Dennis Hastert and Democratic Leader Nancy Pelosi, usually at war, issued a joint statement denouncing the FBI search last month of Rep. William Jefferson's congressional office as a violation of the separation of powers between co-equal branches of government. Their ultimatum that seized documents be returned is now the subject of negotiations with the Justice Department, which is investigating bribery allegations against Jefferson, D-La.

— The Senate Intelligence Committee voted 9-6 two weeks ago to demand that the administration notify all members of the committees about intelligence operations. The administration has bypassed the intelligence committees to inform only eight congressional leaders about such sensitive programs as the National Security Agency's warrantless-surveillance operation.

— Congressional Republicans and Democrats in March upended plans for a Dubai-owned company to take over some U.S. port operations, forcing the firm to promise to transfer the operations to a "U.S. entity." Outraged lawmakers weren't convinced when the president dismissed their national-security concerns as unfounded, and they weren't deterred when he threatened the first veto of his presidency to protect the deal.

— The White House and Congress continue to jockey over who has the last word on the treatment of terror suspects. Congress approved an amendment banning torture over the objections of Vice President Cheney. Bush signed the legislation in December but issued a "signing statement" in which he reserved the right to waive the ban, which he suggested violated his constitutional authority as commander in chief. Senate Armed Services Chairman John Warner of Virginia and Arizona Sen. John McCain of Arizona, both Republicans, then issued a joint statement vowing "strict oversight to monitor" implementation of the law.

The dispute has delayed the release of a new Army Field Manual on interrogation this spring. The Los Angeles Times reported Monday that several senators say the proposed manual sets standards for terror suspects that violate the congressional ban.

The 'Nature of Our System'

White House spokeswoman Dana Perino says the administration has been able to meet Congress' concerns without conceding presidential powers. She notes that administration officials agreed to brief Intelligence Committee members last month about the NSA operation, reported in The New York Times in December, which includes wiretapping calls within the United States without warrants if one of the participants is abroad. The administration calls it the Terrorist Surveillance Program.

"There have been – and always will be by nature of our system – conflicts between Congress and the White House on the limits of executive power," Perino says. "But far from clashing, the two branches have worked well together on very difficult cases and generally made accommodations on issues, like the Terrorist Surveillance Program."

It's true that Congress generally hasn't used or even threatened to use its most potent weapons in a confrontation with the White House, such as issuing subpoenas or cutting off funding for programs.

Still, Bruce Fein, a Justice Department official in the Reagan administration, says Congress' attitude toward the White House is toughening a bit. "We're seeing, maybe, the embryonic stages of drawing the line and saying: 'Here. No more,' " he says.

In the courts, too, some judges in recent months have been more willing to scrutinize Bush's assertions of presidential power.

Judge J. Michael Luttig of the Fourth Circuit Court of Appeals, who had been on Bush's short list of possible Supreme Court picks, last fall wrote a key opinion endorsing the administration's argument that the president could order Jose Padilla, a U.S. citizen and suspected terrorist, to be held indefinitely in a military brig without charges.

But when the administration abruptly decided to charge Padilla in civilian court – apparently to avoid a possible Supreme Court reversal – the judge objected and tried to stop the transfer. Luttig, who resigned from the bench last month, warned of a "substantial cost to the government's credibility before the courts."

The Supreme Court is expected to rule this month in Hamdan v. Rumsfeld, another case that could test presidential powers. Lawyers for Salim Ahmed Hamdan, Osama bin Laden's former driver, are challenging the administration's plan to put prisoners at Guantanamo Bay in Cuba on trial for war crimes in special military tribunals.

At issue: Does Bush's claim of presidential war powers override the protections of the Geneva Conventions?

Some historians say a pattern seen after previous threats to the nation's security – during the Civil War and World War II, for instance – may be repeating itself now that five years have passed since the terror attacks on Sept. 11, 2001.

"In the first few years after a crisis emerges, the courts tend to be very deferential to the White House," says Phillip Cooper of Portland State University in Oregon, who studies separation of powers. "But what tends to happen is after two or three years of deference, then the courts may begin to take a hard look at what's going on … and remind the administration they don't have carte blanche."

On Saturday, the American Bar Association's board of governors voted to establish a bipartisan task force to investigate whether Bush has gone beyond his constitutional authority in asserting a right to ignore provisions of new laws. Bush has issued more than 750 "signing statements" – more than all previous presidents combined – that state his interpretation of new laws and sometimes declare that they infringe on his presidential powers.

For 30 Years, a Cheney Cause

Even before 9/11, Cheney had made restoring presidential authority a priority. As White House chief of staff for President Ford, Cheney found himself dealing with laws passed in the wake of the Vietnam War and the Watergate scandal that constrained presidential authority. The 1973 War Powers Act, for one, restricted a president's authority to launch military action without congressional approval.

Later, as a Wyoming congressman, Cheney argued that Congress was "abusing its power" when it barred the Reagan administration from funding the Nicaraguan contras. The administration's efforts to evade the law by funneling profits from secret arms sales to Iran reflected "mistakes in judgment and nothing more," according to a minority report he helped draft.

Now, as vice president, Cheney has been in a position to resist and even reverse efforts by Congress to restrain the executive. In the administration's first months, the energy task force he chaired went to court to avoid disclosing the names of industry executives it consulted.

Recently, amid the furor over the NSA's warrantless-surveillance program, Cheney took a similarly hard line. "We have all the legal authority we need," the vice president said in an interview on PBS' NewsHour With Jim Lehrer, citing the Constitution and a congressional resolution passed soon after 9/11. And Congress' role? "We said, 'Look, if you've got suggestions, we're happy to listen to them.' "

The Bush administration has taken a series of actions to expand presidential powers: Enabling past presidents and vice presidents to restrict release of their papers after the 12-year period set in law has expired. Refusing to allow aides to testify before Congress about the federal response to 9/11 and to Hurricane Katrina, arguing that might discourage staffers from providing "unvarnished advice" in the future. Asserting wartime powers to ignore federal laws and international treaties when the president says national security is at stake.

"The administration has been very consistent," Cooper says. "At every turn the White House has issued a reading as expansive as possible for its own authority, a reading as narrow as possible of congressional authority, and in some cases pre-empted the courts."

At a rare session with reporters in December, Cheney expressed satisfaction with what the administration has achieved.

"The president of the United States needs to have his constitutional powers unimpaired," Cheney said. "I do think that, to some extent now, we've been able to restore the legitimate authority of the presidency."

'In a Class' With Nixon, Wilson

Bush's actions and Congress' response matter beyond his own tenure at the White House. They set precedents for future administrations and courts, though presidential powers have surged and ebbed through U.S. history.

Legal historian Kermit Hall says Bush is "in a class" with Richard Nixon and Woodrow Wilson during World War I in extending presidential authority. Tom Mann, a congressional scholar at the Brookings Institution, says Bush has exceeded even the expansive view that Franklin Roosevelt took of the presidency during the buildup to World War II.

Analysts credit Bush's ability to prevail in large part to the aftermath of 9/11, which buttressed Americans' backing for a president with the power to battle a shadowy and terrifying foe. In the fiercely partisan climate of Washington, the Republican-controlled House and Senate generally have lined up behind Bush, not challenged him.

"For five years, this Congress has been breathtakingly supine in the face of the most aggressive assertions of executive power we have seen in modern American history," Mann says. Even now, he says, the House "blowback" over the Jefferson search "probably wouldn't have happened if we didn't have a president whose popularity is in the low 30s."

Bush's dismal job-approval ratings have made critics in Congress and elsewhere more willing to confront him. Another factor: As time passes since 9/11, the threat of terrorism remains a potent argument but may no longer automatically trump other issues.

Now, about half of Americans surveyed by USA TODAY/Gallup from Thursday to Sunday say the Bush administration has "gone too far in expanding the power of the presidency." About one-third say it has struck the right balance. Just 14% say it hasn't gone far enough.

Congress' outrage over the search of Jefferson's office hasn't struck a sympathetic chord with the public, though. In an ABC News Poll taken last week, 86% said the FBI acted properly.

Of two dozen letters to the editor to USA TODAY on the issue, many derided Congress for countenancing corruption. Several wondered why lawmakers hadn't shown equal outrage over, say, the warrantless-surveillance program. Not one praised the institution for defending separation of powers.

Even some lawmakers are skeptical about Congress' commitment to the issue. "This is a newfound interest," says Sen. Chris Dodd, D-Conn. "I hope it extends beyond just protecting ourselves."

Robert F. Kennedy Jr. – Ohio Election Stolen

Robert F. Kennedy Jr.  writes in this months Rolling Stone magazine that the Republicans "epublicans prevented more than 350,000 voters in Ohio from casting ballots or having their votes counted — enough to have put John Kerry in the White House."

The full Rolling Stone article can be found here. 

A cached copy of the article can be found here, in my Furl archive. 

Noe Pleads Guilty

From The Toledo Blade:

More than two years after investigators began probing Tom Noe’s vaunted political fund-raising ability, he admitted yesterday that he used friends and colleagues to illegally pour thousands of dollars into the effort to re-elect President Bush.

Noe, whose fund-raising acumen earned him star status as a Bush “Pioneer” and helped him secure coveted federal and state political appointments, pleaded guilty to all three felony counts he faced.

Noe said he wanted to “spare my dear family and friends … further embarrassment.”

The 51-year-old is facing between 24 and 30 months in prison and a substantial fine according to federal sentencing guidelines, assistant U.S. Attorney John Pearson said. However, he said he would seek an even stiffer penalty because of the “potential loss of public faith” in the presidential election.

For more than a year, Republicans in Ohio and Washington have been subjected to continued revelations about a man who had constant access to Gov. Bob Taft’s office and who was a guest at the White House. The President won a second term on the strength of a narrow victory in Ohio.

With his guilty plea, Noe will go from a well-connected Republican who led the Bush effort in northwest Ohio to a convicted felon, adding a permanent stain to his political career.

His guilty plea also acknowledged implicitly that he illegally obtained the cachet typically bestowed upon the biggest political fund-raisers. Hundreds of the Bush “Pioneers” and “Rangers” — those who raised more than $100,000 and $200,000 respectively — were rewarded with coveted ambassadorships, favorable policy changes, and friendly legislation. Noe himself was appointed to a key committee of the U.S. Mint.

State Sen. Randy Gardner (R., Bowling Green) said most people are “shocked and angered and disappointed all at once as to the magnitude” of the accusations against Noe.

“It’s beyond anyone’s comprehension,” Mr. Gardner said.

U.S. District Judge David Katz accepted the guilty plea and said a sentencing date would be scheduled after the federal probation office can produce a presentencing report. Noe will begin providing information for that report tomorrow.

By accepting responsibility and avoiding a trial, Noe is eligible for a reduced prison sentence.

Noe still faces more than four dozen other felony counts in Lucas County Common Pleas Court on allegations that he stole millions of dollars from two rare-coin funds totaling $50 million he managed for the Ohio Bureau of Workers’ Compensation. An August trial has been set in that case.
24 alleged ‘conduits’

During the hearing yesterday, federal prosecutors painted a picture of a man who knew it was wrong to give $45,500 to 24 alleged “conduits” to boost his fund-raising totals at a fund-raiser in October, 2003.

Noe duped them and the presidential campaign he sought to help, assistant U.S. Attorney Seth Uram said.

Noe turned to deceit, Mr. Uram said, after his pledge to raise $50,000 for the Bush campaign foundered when friends claimed they couldn’t attend the $2,000-a-plate event or couldn’t afford it.

“It was then that the defendant [decided] that they could use his own funds to pay for their $2,000 tickets,” Mr. Uram said.

But Noe, who had already given the maximum contribution a few months earlier, should have known it was wrong. Mr. Uram said investigators obtained memos given to Noe about conduits. One memo, which would have been used in a trial, clearly said: “It is illegal to give money in the name of another.”

He was formally charged with conspiracy to violate federal campaign laws and with violating them. He was also charged with causing the Bush-Cheney campaign to file a false campaign finance report.

Donor cards signed

All of the conduits signed donor cards that acknowledged they were the source of their donations when all knew Noe was responsible, prosecutors said.

But for all of the details that were revealed, the hearing left many questions unanswered: Why did Noe agree to raise $50,000 for the Bush campaign? Did anyone pressure him to raise money? Did he hope to curry favor with the Bush White House? His plea leaves those questions open to speculation.

Noe rose to prominence in the Republican Party over the last 15 years as a willing fund-raiser and political confidant and planner.

He secured high-profile gubernatorial appointments to the Bowling Green State University Board of Trustees and the Ohio Board of Regents, and for a time was chairman of the regents — despite being a college dropout. He also was appointed to the Ohio Turnpike Commission, where he also was chairman.

Noe and his wife, Bernadette, both former chairmen of the Lucas County Republican Party, have given more than $200,000 to politicians over the last 16 years. Their giving increased substantially after the Bureau of Workers’ Compensation in 1998 gave him the first of two $25 million payments to invest in his rare-coin funds.

In May, 2003, he secured a federal appointment to an important committee of the U.S. Mint, a panel that advises the U.S. Treasury secretary on themes and designs for coins and congressional gold medals. He was named its chairman.

Before The Blade began reporting in April, 2005, about Noe’s coin deals with the state, he and his wife owned three waterfront homes, including two in Ohio. Since then they’ve sold their condo along the Maumee River in Maumee and their $1 million Catawba Island home on the shore of Lake Erie.

The former GOP power couple retreated to a palatial home in the Florida Keys, which has been used to secure more than $1 million in loans to pay his attorneys.

All of the 24 alleged conduits cooperated with the probe and were willing to testify, Mr. Uram said. Four acknowledged they knew it was illegal at the time. Because the alleged conduits were not charged, Mr. Uram said he was precluded from identifying them.

But court records show that many of them were some of the people closest to Noe: his brother-in-law Joe Restivo; local politicians Maggie Thurber, Betty Shultz, Sally Perz, and Donna Owens; two former aides to Governor Taft; and other political and social friends.

Ms. Thurber, Ms. Shultz, Ms. Perz, and Ms. Owens all face potential state ethics charges for failing to disclose the money from Noe. A special prosecutor appointed by Lucas County Prosecutor Julia Bates is considering charges.

Ms. Thurber and Ms. Shultz yesterday declined to comment about their roles in Noe’s contributions to President Bush’s campaign. Ms. Perz and Ms. Owens did not return phone calls.

Mr. Uram said prosecutors would have relied on memos, records from the Bush campaign, information gleaned from Noe’s trash, and the testimony of the alleged conduits.

Loans claimed

The alleged conduits told investigators that Noe told them to claim the money was a loan if anyone ever asked, and he gave varying amounts to them — only three got the same amount as they would later give the Bush campaign — “so that the payments would look less suspicious,” Mr. Uram said.

Then, in April, 2005, as word of the federal investigation filtered to Noe, he called some of the alleged conduits and asked for payment on the “loans.” Some did send checks and some told investigators the money was a loan. They later changed their stories.

At one point, well after the event, Noe even created a “loan folder” to further disguise his fund-raising, Mr. Uram said.

Throughout the 45-minute hearing, Noe was calm and responsive with Judge Katz, acknowledging questions with “yes, your honor,” and “no, your honor.”

Then, after hearing all of the evidence Mr. Uram outlined, Noe said he voluntarily agreed to change his plea “to accept responsibility to spare my dear family and friends the further embarrassment of any additional court proceeding. Therefore, I plead guilty.”

He was joined in the courtroom by his sister, Beth Noe June of Clark Lake, Mich., and her husband.

Noe remains free on $350,000 bond pending the sentencing hearing. He will undergo drug testing as part of the presentencing report and a complete background check will be done.

Both the federal prosecutors and Noe’s defense attorneys will be able to review and question the report before Judge Katz sentences Noe.

Mr. Pearson said he anticipates Noe’s attorneys will ask that any federal sentence be delayed until the state charges are resolved.

Mr. Pearson asked Judge Katz to treat Noe like any other defendant.

The judge said he would answer those requests later.

No one in state government has been harder hit by the Noe case than Governor Taft, whose administration and legacy have been ravaged by his association with Noe and the scandal that has enveloped Columbus. Yesterday, Mark Rickel, the governor’s press secretary, said “this is a serious offense in the hands of a capable judge and prosecutors.’’

At the time of Noe’s indictment, a senior Justice Department official said the Noe case represented the largest campaign money-laundering scheme prosecuted by the U.S. Justice Department since new campaign-finance laws were enacted by Congress in 2002.

Bush Administration Invoking State Secrets More and More

From The NY Times:

Facing a wave of litigation challenging its eavesdropping at home and its handling of terror suspects abroad, the Bush administration is increasingly turning to a legal tactic that swiftly torpedoes most lawsuits: the state secrets privilege.

In recent weeks alone, officials have used the privilege to win the dismissal of a lawsuit filed by a German man who was abducted and held in Afghanistan for five months and to ask the courts to throw out three legal challenges to the National Security Agency's domestic surveillance program.

But civil liberties groups and some scholars say the privilege claim, in which the government says any discussion of a lawsuit's accusations would endanger national security, has short-circuited judicial scrutiny and public debate of some central controversies of the post-9/11 era.

The privilege has been asserted by the Justice Department more frequently under President Bush than under any of his predecessors — in 19 cases, the same number as during the entire eight-year presidency of Ronald Reagan, the previous record holder, according to a count by William G. Weaver, a political scientist at the University of Texas at El Paso.

While the privilege, defined by a 1953 Supreme Court ruling, was once used to shield sensitive documents or witnesses from disclosure, it is now often used to try to snuff out lawsuits at their inception, Mr. Weaver and other legal specialists say.

"This is a very powerful weapon for the executive branch," said Mr. Weaver, who has a law degree and is a co-author of one of the few scholarly articles examining the privilege. "Once it's asserted, in almost every instance it stops the case cold."

Robert M. Chesney, a law professor at Wake Forest University who is studying the recent use of the privilege, said the administration's legal strategy "raises profound legal and policy questions that will be the subject of intense debate for the foreseeable future."

Some members of Congress also have doubts about the way the privilege has been used. A bill approved by the House Government Reform Committee would limit its use in blocking whistle-blowers' lawsuits.

"If the very people you're suing are the ones who get to use the state secrets privilege, it's a stacked deck," said Representative Christopher Shays, Republican of Connecticut, who proposed the measure and has campaigned against excessive government secrecy.

Yet courts have almost always deferred to the secrecy claims; Mr. Weaver said he believed that the last unsuccessful assertion of the privilege was in 1993. Steven Aftergood, an expert on government secrecy at the Federation of American Scientists, said, "It's a sign of how potent the national security mantra has become."

Under Mr. Bush, the secrets privilege has been used to block a lawsuit by a translator at the Federal Bureau of Investigation, Sibel Edmonds, who was fired after accusing colleagues of security breaches; to stop a discrimination lawsuit filed by Jeffrey Sterling, a Farsi-speaking, African-American officer at the Central Intelligence Agency; and to derail a patent claim involving a coupler for fiber-optic cable, evidently to guard technical details of government eavesdropping.

Such cases can make for oddities. Mark S. Zaid, who has represented Ms. Edmonds, Mr. Sterling and other clients in privilege cases, said he had seen his legal briefs classified by the government and had been barred from contacting a client because his phone line was not secure.

"In most state secrets cases, the plaintiffs' lawyers don't know what the alleged secrets are," Mr. Zaid said.

More recently the privilege has been wielded against lawsuits challenging broader policies, including the three lawsuits attacking the National Security Agency's eavesdropping program — one against AT&T by the Electronic Frontier Foundation in San Francisco and two against the federal government by the American Civil Liberties Union in Michigan and the Center for Constitutional Rights in New York.

In a filing in the New York case, John D. Negroponte, the director of national intelligence, wrote that allowing the case to proceed would "cause exceptionally grave damage to the national security of the United States" because it "would enable adversaries of the United States to avoid detection." Mr. Negroponte said he was providing more detail in classified filings.

Those cases are still pending. Two lawsuits challenging the government's practice of rendition, in which terror suspects are seized and delivered to detention centers overseas, were dismissed after the government raised the secrets privilege.

One plaintiff, Maher Arar, a Syrian-born Canadian, was detained while changing planes in New York and was taken to Syria, where he has said he was held in a tiny cell and beaten with electrical cables. The other, Khaled el-Masri, a German of Kuwaiti origin, was seized in Macedonia and taken to Afghanistan, where he has said he was beaten and injected with drugs before being released in Albania.

The United States never made public any evidence linking either man to terrorism, and both cases are widely viewed as mistakes. Mr. Arar's lawsuit was dismissed in February on separate but similar grounds from the secrets privilege, a decision he is appealing. A federal judge in Virginia dismissed Mr. Masri's lawsuit on May 18, accepting the government's secrets claim.

One frustration of the plaintiffs in such cases is that so much information about the ostensible state secrets is already public. Mr. Arar's case has been examined in months of public hearings by a Canadian government commission, and Mr. Masri's story has been confirmed by American and German officials and blamed on a mix-up of similar names. The N.S.A. program has been described and defended in numerous public statements by Mr. Bush and other top officials and in a 42-page Justice Department legal analysis.

In the A.C.L.U. lawsuit charging that the security agency's eavesdropping is illegal, Ann Beeson, the group's associate legal director, acknowledged that some facts might need to remain secret. "But you don't need those facts to hear this case," she said. "All the facts needed to try this case are already public."

Brian Roehrkasse, a Justice Department spokesman, said he could not discuss any specific case. But he said the state secrets privilege "is well-established in federal law and has been asserted many times in our nation's history to protect our nation's secrets."

Other defenders of the administration's increasing use of the privilege say it merely reflects proliferating lawsuits.

In all of the N.S.A. cases, for instance, "it's the same secret they're trying to protect," said H. Bryan Cunningham, a Denver lawyer who served as a legal adviser to the National Security Council under Mr. Bush. Mr. Cunningham said that under well-established precedent, judges must defer to the executive branch in deciding what secrets must be protected.

But critics of the use of the privilege point out that officials sometimes exaggerate the sensitivities at risk. In fact, documents from the 1953 case that defined the modern privilege, United States v. Reynolds, have been declassified in recent years and suggest that Air Force officials misled the court.

An accident report on a B-29 bomber crash in 1948 was withheld because the Air Force said it included technical details about sensitive intelligence equipment and missions, but it turned out to contain no such information, said Wilson M. Brown III, a lawyer in Philadelphia who represented survivors of those who died in the crash in recent litigation.

"The facts the Supreme Court was relying on in Reynolds were false," Mr. Brown said in an interview. "It shows that if the government is not truthful, plaintiffs will lose and there's very little chance to straighten it out."

ABA To Investigate Bush’s Signing Statements

From The Boston Globe:

The board of governors of the American Bar Association voted unanimously yesterday to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office.

Meeting in New Orleans, the board of governors for the world's largest association of legal professionals approved the creation of an all-star legal panel with a number of members from both political parties.

They include a former federal appeals court chief judge, a former FBI director, and several prominent scholars — to evaluate Bush's assertions that he has the power to ignore laws that conflict with his interpretation of the Constitution.

Bush has appended statements to new laws when he signs them, noting which provisions he believes interfere with his powers.

Among the laws Bush has challenged are the ban on torturing detainees, oversight provisions in the USA Patriot Act, and “whistle-blower" protections for federal employees.

The challenges also have included safeguards against political interference in taxpayer-funded research.

Bush has challenged more laws than all previous presidents combined.

The ABA's president, Michael Greco, said in an interview that he proposed the task force because he believes the scope and aggressiveness of Bush's signing statements may raise serious constitutional concerns. He said the ABA, which has more than 400,000 members, has a duty to speak out about such legal issues to the public, the courts, and Congress.

“The American Bar Association feels a very serious obligation to ensure that when there are legal issues that affect the American people, the ABA adopts a policy regarding such issues and then speaks out about it," Greco said. “In this instance, the president's practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches."

The signing statements task force, which was recruited by Greco, a longtime Boston lawyer who served on former Governor William F. Weld's Judicial Nominating Council, includes several Republicans. Among them are Mickey Edwards , a former Oklahoma representative from 1977 to 1993, and Bruce Fein , a Justice Department official under President Reagan.

In interviews, several of the panel members said they were going into the project with an open mind, but they expressed concerns about Bush's actions.

“I think one of the most critical issues in the country right now is the extent to which the White House has tried to expand its powers and basically tried to cut the legislative branch out of its own constitutionally equal role, and the signing statements are a particularly egregious example of that," Edwards said. “I've been doing a lot of speaking and writing about this, and when the ABA said they were looking to take a position on signing statements, I said that's serious because those people carry a lot of weight."

William Sessions , a retired federal judge who was the director of the FBI under both Reagan and President George H.W. Bush , said he agreed to participate because he believed that the signing statements raise a “serious problem" for the American constitutional system.

“I think it's very important for the people of the United States to have trust and reliance that the president is not going around the law," Sessions said. “The importance of it speaks for itself."

Another member, Patricia Wald, is a retired chief judge of the US Court of Appeals for the District of Columbia, appointed by President Carter.

She said she had monitored the use of signing statements by previous administrations, but “the accelerated use in recent years presents a real question about separation of powers and checks and balances."

Wald also said she was especially interested in studying how signing statements affect the federal bureaucracy. As a judge, Wald said, she dealt with many cases involving challenges to decisions made by administrative agencies. She said that courts are deferential to such decisions because they are supposed to be made by objective specialists in the agencies. But a heavy use of signing statements could call that assumption into question.

“If Congress passes a law telling the people in the bureaucracy that `this is what you should do,' and the president signs it but attaches a statement saying `I don't want you to do it,' how is that going to affect the motivation of the bureaucracy?" she said.

The task force also includes several prominent legal scholars, such as Harold Koh , dean of Yale Law School and a former official in the Reagan and Clinton administrations; Kathleen Sullivan , former dean of Stanford Law School; Charles Ogletree , a Harvard law professor; and Stephen Saltzburg , a professor at George Washington University Law School.

Saltzburg — who was a Justice Department official under Reagan and the first president Bush, as well as a prosecutor in the Iran-Contra scandal — said he did not believe that signing statements were unconstitutional.

But, he said, frequent use of them could create bad perceptions about whether the US government obeys the rule of law.

“The president can say anything he wants when he signs a bill," Saltzburg said. “[But] what does it say about respect for the Constitution and for the notion of checks and balances to have the president repeatedly claim the authority not to obey statutes, which he is signing into law?"

Rounding out the panel are Mark Agrast , a former legislative counsel for Representative William D. Delahunt , Democrat of Quincy, and Thomas Susman, who worked in the Justice Department's Office of Legal Counsel under both Presidents Johnson and Nixon , and was later counsel to the Senate Judiciary Committee.

Susman said he agreed to serve out of intellectual curiosity: “I think it's a fascinating subject," he said. The task force is chaired by Neal Sonnett , a former federal prosecutor. Earlier this year, Sonnett chaired a similar ABA panel of bipartisan specialists who studied the legality of Bush's warrantless spying program.

The earlier panel unanimously concluded that Bush should obey a law requiring warrants for such surveillance, or he should ask Congress to change the law, rather than simply ignoring it.

In February, the ABA House of Delegates voted overwhelmingly to endorse the surveillance task force's recommendations, enabling Greco to testify about the program before Congress.

Sonnett said he planned to run the task force in a similar fashion. The group will discuss the issues in telephone conference calls. They will also divide up issues to research for the report that will accompany any of their recommendations, circulating drafts until they reach a consensus.

The task force will make its recommendation this summer, Greco said, and the 550-member ABA House of Delegates will vote on whether to adopt its findings at a meeting in August.

The chairman of the Senate Judiciary Committee, Arlen Specter, Republican of Pennsylvania, promised to hold a hearing on Bush's use of signing statements.

Specter pledged the action after an article in The Boston Globe described the scope and details of Bush's assertions concerning the laws in them.

Greco and Sonnett also said the Globe's coverage of signing statements had persuaded them to launch the task force

Bush Administration Planted Fake News Stories In Media (Again)

From The Independent:

Federal authorities are actively investigating dozens of American television stations for broadcasting items produced by the Bush administration and major corporations, and passing them off as normal news. Some of the fake news segments talked up success in the war in Iraq, or promoted the companies' products.

Investigators from the Federal Communications Commission (FCC) are seeking information about stations across the country after a report produced by a campaign group detailed the extraordinary extent of the use of such items.

The report, by the non-profit group Centre for Media and Democracy, found that over a 10-month period at least 77 television stations were making use of the faux news broadcasts, known as Video News Releases (VNRs). Not one told viewers who had produced the items.

"We know we only had partial access to these VNRs and yet we found 77 stations using them," said Diana Farsetta, one of the group's researchers. "I would say it's pretty extraordinary. The picture we found was much worse than we expected going into the investigation in terms of just how widely these get played and how frequently these pre-packaged segments are put on the air."

Ms Farsetta said the public relations companies commissioned to produce these segments by corporations had become increasingly sophisticated in their techniques in order to get the VNRs broadcast. "They have got very good at mimicking what a real, independently produced television report would look like," she said.

The FCC has declined to comment on the investigation but investigators from the commission's enforcement unit recently approached Ms Farsetta for a copy of her group's report.

The range of VNR is wide. Among items provided by the Bush administration to news stations was one in which an Iraqi-American in Kansas City was seen saying "Thank you Bush. Thank you USA" in response to the 2003 fall of Baghdad. The footage was actually produced by the State Department, one of 20 federal agencies that have produced and distributed such items.

Many of the corporate reports, produced by drugs manufacturers such as Pfizer, focus on health issues and promote the manufacturer's product. One example cited by the report was a Hallowe'en segment produced by the confectionery giant Mars, which featured Snickers, M&Ms and other company brands. While the original VNR disclosed that it was produced by Mars, such information was removed when it was broadcast by the television channel – in this case a Fox-owned station in St Louis, Missouri.

Bloomberg news service said that other companies that sponsored the promotions included General Motors, the world's largest car maker, and Intel, the biggest maker of semi-conductors. All of the companies said they included full disclosure of their involvement in the VNRs. "We in no way attempt to hide that we are providing the video," said Chuck Mulloy, a spokesman for Intel. "In fact, we bend over backward to make this disclosure."

The FCC was urged to act by a lobbying campaign organised by Free Press, another non-profit group that focuses on media policy. Spokesman Craig Aaron said more than 25,000 people had written to the FCC about the VNRs. "Essentially it's corporate advertising or propaganda masquerading as news," he said. "The public obviously expects their news reports are going to be based on real reporting and real information. If they are watching an advertisement for a company or a government policy, they need to be told."

The controversy over the use of VNRs by television stations first erupted last spring. At the time the FCC issued a public notice warning broadcasters that they were obliged to inform viewers if items were sponsored. The maximum fine for each violation is $32,500 (£17,500).