Saturday, December 24, 2005
IT took 21 years longer than expected, but the future has finally arrived.
And we don't like it. Not one bit.
We are fighting a war with no end to create a peace with no defined victory.
We occupy a foreign land that doesn't want us, while at home our civil liberties are discounted.
We are told that it's better not to know what our government is doing in our name, for security purposes. Meanwhile, our government is becoming omnipresent, spying on us whenever it deems it necessary.
War is peace. Freedom is slavery. Ignorance is strength.
George Orwell was right after all.
In 1949, Orwell penned "1984," a dark, futuristic satire in which the totalitarian government used indoctrination, propaganda and fear to enforce order and conformity. His "Big Brother" — the face of this all-knowing regime — was never wrong, and to make sure of it, history was constantly being rewritten.
Orwell wrote his book as a cautionary tale to underscore the insidious danger of slowly eroded individual liberties. His Thought Police may not yet be on the march, but it's not hyperbole to point out the eerie parallels with today's America.
In America today, Big Brother is watching.
He's watching because President Bush told him to. Shortly after 9/11, Bush secretly authorized warrantless wiretaps on U.S. citizens making or receiving international calls and e-mails.
When it comes to fighting terror, Bush is totalitarian — remember, you're either with us or against us. Trust me to get it right, he says. Debate on the law is not only not needed, it's evil.
"An open debate about the law would say to the enemy, 'Here's what we're going to do.'" Bush said recently. "The fact that we're discussing this program is helping the enemy."
Then there's the Patriot Act, also created in the days immediately after Sept. 11, 2001. The Senate and House of Representatives voted Thursday to extend the law by a month. President Bush and Attorney General Alberto Gonzales insist it's an indispensable tool in the war on terror and want it extended permanently.
"I'm as concerned about the privacy of American citizens as anyone, but we cannot allow libraries and use of libraries to become safe havens for terrorists," Gonzales said in July, defending one of the act's most controversial provisions.
Remember, too, that we invaded Iraq primarily because we were told Saddam Hussein was an immediate threat with his weapons of mass destruction. Now the Bush administration acknowledges that wasn't so, but insists there were (are?) other reasons to invade. History is malleable.
Orwell wrote of war without end; we're told the war on terror will last decades at least. Orwell wrote of a dumbed-down "Newspeak," and who could argue that our national discourse hasn't slumped? Orwell's "Ministry of Love" tortured dissidents real or imagined; our government decries Iraq's secret torture prisons while arguing over whether to ban torture. Meanwhile, we maintain our own secret CIA prisons.
Bush is unapologetic. The president believes he has the legal authority to spy on American citizens without a warrant, and he plans to continue to reauthorize the program "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens." But when the enemy is poorly defined, who determines when the threat is over? In this case, the same government that secretly taps our phones.
Turns out the truth is no stranger than fiction.
We think it's time for Congress to heed the warning of George Orwell.
To that end, we're asking for your help: Mail us or drop off your tattered copies of "1984." When we get 537 of them, we'll send them to every member of the House of Representatives and Senate and to President Bush and Vice President Dick Cheney.
Feel free to inscribe the book with a note, reminding these fine people that we Americans take the threat to our liberties seriously. Remind Congress that it makes no sense to fight a war for democracy in a foreign land while allowing our democratic principles to erode at home.
Remind President Bush that ours is a country of checks and balances, not unbridled power.
Perhaps our nation's leaders can find some truth in this fiction and more carefully ponder the road we're traveling.
Bring or mail your books to the Oakland Tribune, 401 13th St., Oakland CA 94612. Doors are open from 8 a.m. to 5 p.m.
Barron's Calls for Impeachment Hearings on Wiretapping
by Matt Stoller
Barron's calls for impeachment (via Barry Ritholtz at The Big Picture)
"AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in
justifying their actions, officials have made a bad situation much worse:
Administration lawyers and the president himself have tortured the Constitution
and extracted a suspension of the separation of powers . . .
Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a
72-hour emergency or a 15-day emergency doesn't last four years . . .
Willful disregard of a law is potentially an impeachable offense. It is at
least as impeachable as having a sexual escapade under the Oval Office desk and
lying about it later. The members of the House Judiciary Committee who staged
the impeachment of President Clinton ought to be as outraged at this situation.
They ought to investigate it, consider it carefully and report either a bill
that would change the wiretap laws to suit the president or a bill of
It is important to be clear that an impeachment case, if it
comes to that, would not be about wiretapping, or about a possible
Constitutional right not to be wiretapped. It would be about the power of
Congress to set wiretapping rules by law, and it is about the obligation of the
president to follow the rules in the Acts that he and his predecessors signed
Some ancillary responsibility, however, must be attached to those
members of the House and Senate who were informed, inadequately, about the
wiretapping and did nothing to regulate it. Sen. John D. Rockefeller IV,
Democrat of West Virginia, told Vice President Dick Cheney in 2003 that he was
"unable to fully evaluate, much less endorse these activities." But the senator
was so respectful of the administration's injunction of secrecy that he wrote it
out in longhand rather than give it to someone to type. Only last week, after
the cat was out of the bag, did he do what he should have done in 2003 -- make
his misgivings public and demand more information.
Published reports quote sources saying that 14 members of Congress were notified of the wiretapping. If some had misgivings, apparently they were scared of being called names, as the president did last week when he said: "It was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."
Wrong. If we don't discuss the program and the lack of authority for it, we are meeting the enemy -- in the mirror.
Barron's ain't exactly a commie rag, or even a 'Democratic website'. Oh, wait, I forgot, and impeachment talk makes Richard Morin mad. To be clear, it's WAAYYY more legitimate for someone like Rockefeller to decide to obey the law and not disclose what he knows than it is for someone like Bush to break the law. It's not what I would have done, but I get respect for the law. I also wonder why Barron's isn't picking on the Republicans who were informed, and didn't apparently protest even in private. Ah well.
By Charlie Savage, Globe Staff December 23, 2005
WASHINGTON -- The National Security Agency, in carrying out President Bush's order to intercept the international phone calls and e-mails of Americans suspected of links to Al Qaeda, has probably been using computers to monitor all other Americans' international communications as well, according to specialists familiar with the workings of the NSA.
The Bush administration and the NSA have declined to provide details about the program the president authorized in 2001, but specialists said the agency serves as a vast data collection and sorting operation. It captures reams of data from satellites, fiberoptic lines, and Internet switching stations, and then uses a computer to check for names, numbers, and words that have been identified as suspicious.
''The whole idea of the NSA is intercepting huge streams of communications, taking in 2 million pieces of communications an hour," said James Bamford, the author of two books on the NSA, who was the first to reveal the inner workings of the secret agency.
'They have a capacity to listen to every overseas phone call," said Tom Blanton, director of the National Security Archive at George Washington University, which has obtained documents about the NSA using Freedom of Information Act requests.
The NSA's system of monitoring e-mails and phone calls to check for search terms has been used for decades overseas, where the Constitution's prohibition on unreasonable searches does not apply, declassified records have shown.
But since Bush's order in 2001, Bamford and other specialists said, the same process has probably been used to sort through international messages to and from the United States, though humans have never seen the vast majority of the data.
''The collection of this data by automated means creates new privacy risks," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a watchdog group that has studied computer-filtered surveillance technology through Freedom of Information Act lawsuits.
Among the risks, he said, is that the spy agency's computers will collect personal information that has no bearing on national security, and that intelligence agents programming those computers will be tempted to abuse their power to eavesdrop for personal or political gain.
But even when no personal information intercepted by the NSA's computers make it to human eyes and ears, Rotenberg said, the mere fact that spy computers are monitoring the calls and e-mails may also violate the Fourth Amendment. The Supreme Court has never ruled on whether automated surveillance of phone calls and e-mails, without a warrant, is constitutional.
The closest comparisons, legal specialists said, are cases challenging the use of dogs and infrared detectors to look for drugs without a warrant. The Supreme Court approved the use of drug-sniffing dogs to examine luggage in an airport, but said police could not use infrared scanners to check houses for heat patterns that could signal an illegal drug operation.
'This is very much a developing field, and a lot of the law is not clear," said Harvard Law School professor Bill Stuntz.
President Bush and his aides have refused to answer questions about the domestic spying program, other than to insist that it was legal. Attorney General Alberto Gonzales this week said the program only targeted messages ''where we have a reasonable basis to conclude" that one of the parties is affiliated with Al Qaeda.
And some legal scholars have maintained that a computer cannot violate other Americans' Fourth Amendment rights simply by sorting through their messages, as long as no human being ever looks at them.
Alane Kochems, a lawyer and a national security analyst at the conservative Heritage Foundation, said, ''I don't think your privacy is violated when you have a computer doing it as opposed to a human. It isn't a sentient being. It's a machine running a program."
But Yale Law School professor Jack Balkin said that Fourth Amendment privacy rights can still be violated without human contact if the NSA stores copies of everyone's messages, raising the possibility that a human could access them later. The administration has not revealed how long the NSA stores messages, and the agency has refused to comment on the program.
Balkin added that as technology becomes ever more sophisticated, any legal distinction between human agents and their tools is losing meaning. Under the theory that only human beings can invade people's privacy, he said, the police ''could simply use robots to do their dirty work."
In 1978, following revelations that President Nixon had used the NSA to spy on his domestic enemies, Congress enacted a law making it illegal to wiretap a US citizen without permission from a secret national security court. The court requires the government to show evidence that the target is a suspected spy or terrorist.
Under the 1978 law, NSA officials have had to obtain a warrant from the secret court before putting an American's information into their computers' search terms.
The restrictions largely limited NSA to collecting messages from overseas communications networks, but some Americans' messages were intercepted before the 2001 terrorist attacks.
Occasionally, the interception was deliberate. In April 2000, the NSA's then-director, General Michael Hayden, told Congress that since 1978 ''there have been no more than a very few instances of NSA seeking [court] authorization to target a US person in the United States."
More often, the interception was accidental. Because American international calls travel through foreign networks, some of which are monitored by the NSA, the agency's computers have sifted through some American international messages all along.
''Long before 9/11, the NSA gathered from the ether mountains of [overseas] phone calls and e-mail messages on a daily basis," said Columbia Law School professor Deborah Livingston. ''If you have such an extensive foreign operation, you'll gather a large amount of phone traffic and e-mails involving Americans. That's something we've lived with for a long time."
But Bush's order cleared the way for the NSA computers to sift through Americans' phone calls and e-mails.
According to a New York Times report last week, Bush authorized the NSA's human analysts to look at the international messages of up to 500 Americans at a time, with a changing list of targets.
Hayden, now the deputy director of national intelligence, told reporters this week that under Bush's order, a ''shift supervisor" instead of a judge signs off on deciding whether or not to search for an American's messages.
The general conceded that without the burden of obtaining warrants, the NSA has used ''a quicker trigger" and ''a subtly softer trigger" when deciding to track someone.
Bamford said that Hayden's ''subtly softer trigger" probably means that the NSA is monitoring a wider circle of contacts around suspects than what a judge would approve.
By AARON NICODEMUS, Standard-Times staff writer NEW BEDFORD
-- The UMass Dartmouth student who claimed to have been visited by Homeland Security agents over his request for "The Little Red Book" by Mao Zedong has admitted to making up the entire story. The 22-year-old student tearfully admitted he made the story up to his history professor, Dr. Brian Glyn Williams, and his parents, after being confronted with the inconsistencies in his account. Had the student stuck to his original story, it might never have been proved false. But on Thursday, when the student told his tale in the office of UMass Dartmouth professor Dr. Robert Pontbriand to Dr. Williams, Dr. Pontbriand, university spokesman John Hoey and The Standard-Times, the student added new details. The agents had returned, the student said, just last night. The two agents, the student, his parents and the student's uncle all signed confidentiality agreements, he claimed, to put an end to the matter. But when Dr. Williams went to the student's home yesterday and relayed that part of the story to his parents, it was the first time they had heard it. The story began to unravel, and the student, faced with the truth, broke down and cried. It was a dramatic turnaround from the day before. For more than an hour on Thursday, he spoke of two visits from Homeland Security over his inter-library loan request for the 1965, Peking Press version of "Quotations from Chairman Mao Tse-Tung," which is the book's official title. His basic tale remained the same: The book was on a government watch list, and his loan request had triggered a visit from an agent who was seeking to "tame" reading of particular books. He said he saw a long list of such books. In the days after its initial reporting on Dec. 17 in The Standard-Times, the story had become an international phenomenon on the Internet. Media outlets from around the world were requesting interviews with the students, and a number of reporters had been asking UMass Dartmouth students and professors for information. The story's release came at a perfect storm in the news cycle. Only a day before, The New York Times had reported that President Bush had allowed the National Security Agency to conduct wiretaps on international phone calls from the United States without a warrant. The Patriot Act, created in the aftermath of the Sept. 11, 2001, attacks to allow the government greater authority to monitor for possible terrorism activities, was up for re-authorization in Congress. There was an increased sense among some Americans that the U.S. government was overstepping its bounds and trampling on civil liberties in order to thwart future attacks of terrorism. The story of a college student being questioned for requesting a 40-year old book on Communism fed right into that atmosphere. In Thursday's retelling of the story, the student added several new twists, ones that the professors and journalist had not heard before. The biggest new piece of information was an alleged second visit of Homeland Security agents the previous night, where two agents waited in his living room for two hours with his parents and brother while he drove back from a retreat in western Massachusetts. He said he, the agents, his parents and his uncle all signed confidentiality agreements that the story would never be told. He revealed the agents' names: one was Nicolai Brushaev or Broshaev, and the other was simply Agent Roberts. He said they were dressed in black suits with thin black ties, "just like the guys in Men in Black." He had dates and times and places, things he had signed and sent back in order to receive the book. The tale involved his twin brother, who allegedly requested the book for him at UMass Amherst; his uncle, a former FBI attorney who took care of all the paperwork; and his parents, who signed those confidentiality agreements. But by now, the story had too many holes. Every time there was a fact to be had that would verify the story -- providing a copy of the confidentiality agreements the student and agent signed, for example -- there would be a convenient excuse. The uncle took all the documents home to Puerto Rico, he said. What was the address of the Homeland Security building in Boston where he and his uncle visited the agency and actually received a copy of the book? It was a brick building, he said, but he couldn't remember where it was, or what was around it. He said he met a former professor at the mysterious Homeland Security building who had requested a book on bomb-making, along with two Ph.D. students and a one pursuing a master's degree who had also been stopped from accessing books. The student couldn't remember their names, but the former professor had appeared on the Bill O'Reilly show on Fox News recently, he said. The former professor's appearance on The O'Reilly Factor did not check out. Other proof was sought. Were there any copies of the inter-library loan request? No. Did the agents leave their cards, or any paperwork at your home? No. His brother, a student at Amherst, told Dr. Williams that he had never made the inter-library loan request on behalf of his brother. While The Standard-Times had tape recorded the entire tale on Thursday, the reporter could not reach the student for comment after he admitted making up the story. Phone calls and a note on the door were not returned. At the request of the two professors and the university, The Standard-Times has agreed to withhold his name. During the whole episode, the professors said that while they wanted to protect the student from the media that were flooding their voice mails and e-mail boxes seeking comment and information, they also wanted to know: Was the story true? "I grew skeptical of this story, as did Bob, considering the ramifications," Dr. Williams said yesterday. "I spent the last five days avoiding work, and the international media, and rest, trying to get names and dates and facts. My investigation eventually took me to his house, where I began to investigate family matters. I eventually found out the whole thing had been invented, and I'm happy to report that it's safe to borrow books." Dr. Williams said he does not regret bringing the story to light, but that now the issue can be put to rest. "I wasn't involved in some partisan struggle to embarrass the Bush administration, I just wanted the truth," he said. Dr. Pontbriand said the entire episode has been "an incredible experience and exposure for something a student had said." He said all along, his only desire had been to "get to the bottom of it and get the truth of the matter." "When it blew up into an international story, our only desire was to interview this student and get to the truth. We did not want from the outset to declare the student a liar, but we wanted to check out his story," he said. "It was a disastrous thing for him to do. He needs attention, he needs care. I feel for the kid. We have great concern for this student's health and welfare." Mr. Hoey, the university spokesman, said the university had been unable to substantiate any of the facts of the story since it first was reported in The Standard-Times on Dec. 17. As to any possible repercussions against the student, Mr. Hoey said, "We consider this to be an issue to be handled faculty member to student. We wouldn't discuss publicly any other action. Student discipline is a private matter." Dr. Williams said the whole affair has had one bright point: The question of whether it is safe for students to do research has been answered. "I can now tell my students that it is safe to do research without being monitored," he said. "With that hanging in the air like before, I couldn't say that to them." The student's motivation remains a mystery, but in the interview on Thursday, he provided a glimpse. "When I came back, like wow, there's this circus coming on. I saw my cell phone, and I see like, wow, I have something like 75 messages and like something like 87 missed calls," he said. "Wow, I was popular. I usually get one or probably two a week and that's about it, and I usually pick them up."
By Arlene Getz
Updated: 3:33 p.m. ET Dec. 21, 2005
Dec. 21, 2005 - Back in the 1980s, when I was living in Johannesburg and reporting on apartheid South Africa, a white neighbor proffered a tasteless confession. She was "quite relieved," she told me, that new media restrictions prohibited our reporting on government repression. No matter that Pretoria was detaining tens of thousands of people without real evidence of wrongdoing. No matter that many of them, including children, were being tortured—sometimes to death. No matter that government hit squads were killing political opponents. No matter that police were shooting into crowds of black civilians protesting against their disenfranchisement. "It's so nice," confided my neighbor, "not to open the papers and read all that bad news."
I thought about that neighbor this week, as reports dribbled out about President George W. Bush's sanctioning of warrantless eavesdropping on American conversations. For anyone who has lived under an authoritarian regime, phone tapping—or at least the threat of it—is always a given. But U.S. citizens have always been lucky enough to believe themselves protected from such government intrusion. So why have they reacted so insipidly to yet another post-9/11 erosion of U.S. civil liberties?
I'm sure there are many well-meaning Americans who agree with their president's explanation that it's all a necessary evil (and that patriotic citizens will not be spied on unless they dial up Osama bin Laden). But the nasty echoes of apartheid South Africa should at least give them pause. While Bush uses the rhetoric of "evildoers" and the "global war on terror," Pretoria talked of "total onslaught." This was the catchphrase of P. W. Botha, South Africa's head of state from 1978 to 1989. Botha was hardly the first white South African leader to ride roughshod over civil liberties for all races, but he did it more effectively than many of his predecessors. Botha liked to tell South Africans that the country was under "total onslaught" from forces both within and without, and that this global assault was his rationale for allowing opponents to be jailed, beaten or killed. Likewise, the Bush administration has adopted the argument that anything is justified in the name of national security.
Botha was right about South Africa being under attack. Internally, blacks and a few whites were waging a low-level guerrilla war to topple the government. Externally, activists across the globe were mobilizing economic sanctions and campaigns to ostracize Pretoria. By the same token, we all know that Bush is right about the United States facing a very real threat of further terror. Yet should Americans really be willing to accept that autocratic end-justifies-the-means argument?
For so many around the world, the United States is as much a symbol as a nation. Outsiders may scoff at American naiveté in thinking that their conversations are private, but they envy them for growing up in a society so sheltered that it made such a belief possible. Among those who feel this way is Archbishop Desmond Tutu the South African Anglican leader who won a Nobel Peace Prize for his principled fight for justice in his native country. "It's unbelievable," he told me in an interview, "that a country that many of us have looked to as the bastion of true freedom could now have eroded so many of the liberties we believed were upheld almost religiously."
Tutu recalled teaching in Jacksonville, Fla., when Bush won re-election in 2004. "I was shocked," he said, "because I had naively believed all these many years that Americans genuinely believed in freedom of speech. [But I] discovered there that when you made an utterance that was remotely contrary to what the White House was saying, then they attacked you. For a South African the déjà vu was frightening. They behaved exactly the same way that used to happen here—vilifying those who are putting forward a slightly different view." Tutu made these comments to me exactly a year ago next week. I haven't seen any reaction from him about the latest eavesdropping revelations, but I doubt he is remotely surprised at the U.S. president's response: a defense of the tactic, together with a warning that the government would launch an investigation to find out who leaked the news to The New York Times.
It's not fair, of course, to suggest that all citizens are indifferent to violations of their privacy and their rights to free speech. Yet as I've watched this debate play out, it's hard to avoid the conclusion that not enough Americans really care. Like my Johannesburg neighbor, they seem to hope that unpleasant news will disappear if you just ignore it. It didn't then, and it won't now.
A published report says the U.S. National Security Agency has conducted broader surveillance of e-mails and telephone conversations without court orders than the Bush administration has admitted.
The New York Times reports Saturday that current and former government officials told the newspaper the NSA accessed domestic and international communications with help from telecommunication companies.
The newspaper says companies have been storing information on calling patterns since the September 11, 2001 attacks, and that NSA officials have been studying the information in hope of finding terrorists.
The Bush administration has been under increased scrutiny for authorizing without court orders the surveillance of what the government says is only international calls and e-mails to and from the United States.
U.S. Attorney General Alberto Gonzalez has defended the practice, calling it an improved method of tracking suspected terrorists.
Friday, December 23, 2005
The Department of Justice has released a memo defending President Bush’s warrantless domestic spying argument. There are two main arguments:
1) Any limitations FISA places on the President’s authority to issue warrantless
domestic searches are unconstitutional, and
2) Congress gave the President authority to issue warrantless domestic searches
It doesn’t seem like the DOJ has their heart in the first argument. They devote just two paragraphs out of a five page memo to this point. Most of that space is filled by caselaw decided before FISA even became law, making it largely irrelevant since FISA speaks directly to warrantless spying on Americans and declares it illegal.
Like other defenders of the President’s program, they place considerable emphasis on a 2002 decision by the FISA Court of Appeals. There are two important things to remember about that case:
- The FISA appeals court explicitly says it’s not addressing the issue (”It was
incumbent upon the [Truong] court, therefore, to determine the boundaries of
that constitutional authority [to conduct warrantless searches]…The question
before us is the reverse…”)
- The FISA appeals court acknowledges the cases it mentions were decided before FISA and didn’t consider the statute (”We reiterate that Truong dealt with a pre-FISA surveillance…it had no occasion to consider the application of the statute…”)
In other words, there is a reason that the DOJ is giving short shrift to this argument. There is little evidence to substantiate it.
The rest of the memo is devoted to arguing that the 9/18/01 Authorization for the Use of Military Force (AUMF) against al-Qaeda authorized the President’s actions. This argument doesn’t hold water either:
1. The administration tried to get language inserted into the AUMF that wouldThe Justice Department advances two theories about why Bush’s warrantless domestic surveillance program was legal and both of them fail. The truth is simple: the program was illegal because it violated federal criminal law.
have authorized them to take actions “in the United States.” They failed. [Tom
2. Federal law says that “exclusive means” to conduct electronic surveillance is
FISA and Title III (which governs the use of wiretaps by law enforcement).
Relying on the AUMF, the administration concedes that neither of those two
statutes were used. Federal law says that any surveillance that is not conducted
under those two statues is illegal. [18U.S.C. 2551(2)(f); 50U.S.C. 1809(a)]
3. FISA has a limited exception that allows warrantless
domestic wiretaps after a war is declared, but it only lasts 15 days. The Bush
administration program has been going on for more than four years. [50
The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post.
Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.
The Justice Department acknowledged yesterday, in a letter to Congress, that the president's October 2001 eavesdropping order did not comply with "the 'procedures' of" the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, "except as authorized by statute."
There is one other statutory authority for wiretapping, which covers conventional criminal cases. That law describes itself, along with FISA, as "the exclusive means by which electronic surveillance . . . may be conducted."
Yesterday's letter, signed by Assistant Attorney General William Moschella, asserted that Congress implicitly created an exception to FISA's warrant requirement by authorizing President Bush to use military force in response to the destruction of the World Trade Center and a wing of the Pentagon. The congressional resolution of Sept. 18, 2001, formally titled "Authorization for the Use of Military Force," made no reference to surveillance or to the president's intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.
But Moschella argued yesterday that espionage is "a fundamental incident to the use of military force" and that its absence from the resolution "cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy." Such eavesdropping, he wrote, necessarily included conversations in which one party is in the United States.
Daschle's article reveals an important new episode in the resolution's legislative history.
As drafted, and as finally passed, the resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons" who "planned, authorized, committed or aided" the Sept. 11 attacks.
"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."
Daschle wrote that Congress also rejected draft language from the White House that would have authorized the use of force to "deter and pre-empt any future acts of terrorism or aggression against the United States," not only against those responsible for the Sept. 11 attacks.
Republican legislators involved in the negotiations could not be reached for comment last night.
Wednesday, December 21, 2005
Prominent right-wing bloggers – including Michelle Malkin, the Corner, Wizbang and Free Republic — are pushing the argument that President Bush’s warrantless domestic spying program isn’t news because the Clinton administration did the same thing.
The right-wing outlet NewsMax sums up the basic argument:
During the 1990’s under President Clinton, the National Security AgencyThat’s flatly false. The Clinton administration program, code-named Echelon, complied with FISA. Before any conversations of U.S. persons were targeted, a FISA warrant was obtained. CIA director George Tenet testified to this before Congress on 4/12/00:
monitored millions of private phone calls placed by U.S. citizens and citizens
of other countries under a super secret program code-named Echelon…all of it
done without a court order, let alone a catalyst like the 9/11 attacks.
I’m here today to discuss specific issues about and allegations regardingMeanwhile, the position of the Bush administration is that they can bypass the FISA court and every other court, even when they are monitoring the communications of U.S. persons. It is the difference between following the law and breaking it.
Signals Intelligence activities and the so-called Echelon Program of the
National Security Agency…
There is a rigorous regime of checks and balances
which we, the Central Intelligence Agency, the National Security Agency and the
FBI scrupulously adhere to whenever conversations of U.S. persons are involved,
whether directly or indirectly. We do not collect against U.S. persons unless
they are agents of a foreign power as that term is defined in the law. We do not
target their conversations for collection in the United States unless a FISA
warrant has been obtained from the FISA court by the Justice Department.
By Bruce Fein--December 20, 2005
According to President George W. Bush, being president in wartime means never having to concede co-equal branches of government have a role when it comes to hidden encroachments on civil liberties.
Last Saturday, he thus aggressively defended the constitutionality of his secret order to the National Security Agency to eavesdrop on the international communications of Americans whom the executive branch speculates might be tied to terrorists. Authorized after the September 11, 2001 abominations, the eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA), excludes judicial or legislative oversight, and circumvented public accountability for four years until disclosed by the New York Times last Friday. Mr. Bush's defense generally echoed previous outlandish assertions that the commander in chief enjoys inherent constitutional power to ignore customary congressional, judicial or public checks on executive tyranny under the banner of defeating international terrorism, for example, defying treaty or statutory prohibitions on torture or indefinitely detaining United States citizens as illegal combatants on the president's say-so.
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.
The war against global terrorism is serious business. The enemy has placed every American at risk, a tactic that justifies altering the customary balance between liberty and security. But like all other constitutional authorities, the war powers of the president are a matter of degree. In Youngstown Sheet & Tube v. Sawyer (1952), the U.S. Supreme Court denied President Harry Truman's claim of inherent constitutional power to seize a steel mill threatened with a strike to avert a steel shortage that might have impaired the war effort in Korea. A strike occurred, but Truman's fear proved unfounded.
Neither President Richard Nixon nor Gerald Ford was empowered to suspend Congress for failing to appropriate funds they requested to fight in Cambodia or South Vietnam. And the Supreme Court rejected Nixon's claim of inherent power to enjoin publication of the Pentagon Papers during the Vietnam War in New York Times v. United States (1971).
Mr. Bush insisted in his radio address that the NSA targets only citizens "with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist organizations."
But there are no checks on NSA errors or abuses, the hallmark of a rule of law as opposed to a rule of men. Truth and accuracy are the first casualties of war. President Bush assured the world Iraq possessed weapons of mass destruction before the 2003 invasion. He was wrong. President Franklin D. Roosevelt declared Americans of Japanese ancestry were security threats to justify interning them in concentration camps during World War II. He was wrong. President Lyndon Johnson maintained communists masterminded and funded the massive Vietnam War protests in the United States. He was wrong. To paraphrase President Ronald Reagan's remark to Soviet leader Mikhail Gorbachev, President Bush can be trusted in wartime, but only with independent verification.
The NSA eavesdropping is further troublesome because it easily evades judicial review. Targeted citizens are never informed their international communications have been intercepted. Unless a criminal prosecution is forthcoming (which seems unlikely), the citizen has no forum to test the government's claim the interceptions were triggered by known links to a terrorist organization.
Mr. Bush acclaimed the secret surveillance as "crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies." But if that were justified, why was Congress not asked for legislative authorization in light of the legal cloud created by FISA and the legislative branch's sympathies shown in the Patriot Act and joint resolution for war? FISA requires court approval for national security wiretaps, and makes it a crime for a person to intentionally engage "in electronic surveillance under color of law, except as authorized by statute."
Mr. Bush cited the disruptions of "terrorist" cells in New York, Oregon, Virginia, California, Texas and Ohio as evidence of a pronounced domestic threat that compelled unilateral and secret action. But he failed to demonstrate those cells could not have been equally penetrated with customary legislative and judicial checks on executive overreaching.
The president maintained that, "As a result [of the NSA disclosure], our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." But if secrecy were pivotal to the NSA's surveillance, why is the president continuing the eavesdropping? And why is he so carefree about risking the liberties of both the living and those yet to be born by flouting the Constitution's separation of powers and conflating constructive criticism with treason?
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
Blowing Up the Ticking Bomb Myth
NEW YORK--If you wash down Pop Rocks with Coke, your stomach will be blown to smithereens. Richard Gere had an intimate moment with a small Mongolian rodent. Some urban myths refuse to die. And one, the "ticking bomb scenario," has led to torture, murder and the potentially permanent diminishment of America's reputation as a civilized nation.
On December 13, 2005, the New York Times reported: "The White House prefers, in background conversations, to talk about the 'doomsday scenario': What would happen if the president believed a nuclear device had been planted in an American city, and interrogators had just minutes to extract information about its location from a terror suspect?" The piece went on to note that "some legal authorities" think that the president's powers include "torturing a suspect believed to have information about where a nuclear bomb is hidden."
The ticking bomb scenario gets dragged out whenever some sadistic politician or pundit wants to fire up the old electrodes on a few swarthy undesirables. It was the plot line of the Fox television series "24," in which a counterterrorist agent played by Keifer Sutherland tortures baddies to save the world. "It goes with the '24' conceit that we need information and don't have days to break this person," executive producer Howard Gordan told USA Today. "In some ways, [Sutherland's character] is a necessary evil."
Is the good of the many worth doing evil to a few? Not to me. I'd rather be incinerated than live in a society that depends on torture for its safety. Regardless of this hypothetical dilemma, however, no evil could be more unnecessary than torture in the name of the theoretical ticking bomb.
Nuclear weapons have been around for 60 years, terrorism much longer than that. But no country has ever faced a ticking bomb scenario, whether nuclear or conventional. For his exhaustively researched The Good Listener, Neil Benton found only one case where authorities faced such a situation--sort of. In 1956, French police in the restive colony of Algeria, having caught a communist in the act planting a bomb, worried that he might have already hidden a second explosive device. They considered, then rejected, torturing the suspect as a means of finding out. And it turns out there wasn't a second bomb.
Bush Administration officials, who might have avoided misadventures in Afghanistan and Iraq by reading a little British military history, pride themselves on making their own reality. Gleefully skating on historically thin ice, Justice Department lawyer Jay S. Bybee (since promoted by Bush to federal judge) relied on ticking bomb mythology to justify abusing prisoners in one of Bush's infamous 2002 "torture memos": "Clearly, any harm that might occur during an interrogation would pale into significance compared to the harm avoided by preventing such an attack."
Underlying such a claim is ignorance of the methods used by underground organizations such as Al Qaeda, and willful disregard for how successful interrogations work.
Members of secret cells follow simple procedures to avoid arrest and detection. Vary your routine. Set up a legitimate job as a cover. If you set up a meeting and someone is late, even by a minute, walk away and assume that they have been arrested. Check in with other members of your cell--typically one person ranked higher and one or two ranked lower--regularly. If a comrade fails to check in, assume that he has been tortured and has spilled his guts. Scrap your plans and start anew.
Given these Resistance 101 precautions, government agents would need the devil's luck to arrest a terrorist suspect during the short interval between a bomb's placement and its detonation. Even then, a suspect's comrades might note his failure to make a pre-arranged check-in and move the bomb. Assuming an arrest under such extraordinary circumstances, it is well nigh impossible to imagine that the heroic protectors of the American people could identify a subject's significance as a key member of a dangerous organization, determine that he possessed important information, narrow that knowledge down to the subject of a specific bomb plot, and then manage to extract the correct information using torture in time to prevent a disaster. Terrorists lie. They stall. And you can't get an answer unless you know what question to ask--with or without an electric drill.
And even if you do know, torture doesn't work. "Ultimately, the purpose of torture is torture," says former CIA interrogator Milton Bearden, in David Rose's book Guantánamo. "The way you do get information from people is through a process that amounts of recruitment, by doing deals." A veteran FBI special agent adds that "more often, he had 'flipped' witnesses by taking pains to build trust and rapport."
Anyway, amateurs are working the terror beat. Anthony Christino III, a lieutenant colonel who retired after 20 years as a counterterrorism specialist for the U.S. Army, told Rose that "there are now simply no military intelligence personnel of officer rank in the U.S. Army who specialize in interrogation, as there were during the Vietnam War and earlier. Today, this crucial job is left to warrant officers (interrogation technicians) and enlisted soldiers (interrogators)."
"These kids--as bright and dedicated to their mission as they may be--lack meaningful life, let alone professional, experiences," said Christino. They know nothing about the language or culture of the people they question.
It would be more honest to market torture as a fun way to hurt people we don't like while getting our collective rocks off. It's certainly not a way to protect America, for even if the government were to beat the one-in-a-billion odds against arresting a terrorist who knew the location of a ticking bomb, they don't employ anyone smart enough to find out before it's too late.
Tuesday, December 20, 2005
A senior at the University of Massachusetts at Dartmouth was interrogated last month by Department of Homeland Security officials because he tried to borrow from a campus library an unabridged version of The Little Red Book, which centers on Mao Tse-Tung’s views of Communism.
The 21-year-old student, who wishes to remain anonymous, told Brian Glyn Williams, a professor of history at the university who focuses on Islamic studies, that he had attempted to borrow the book earlier this semester through the University of Massachusetts at Amherst’s interlibrary loan program.
The student was searching for primary texts to complete a paper for a class in Williams’s department on fascism and totalitarianism.
Shortly after the student filed his request — providing his name, address and phone number — two agents arrived at his parent’s house, where he lives. They asked him to prove why he wanted the book, which they indicated was on a “watch list,” and inquired about his travels to South America. The officials brought a copy of the book with them to his parent’s residence, but said he couldn’t have it.
Ultimately, the student chose to travel to an FBI office about an hour from the university to further defend himself. The student is currently finishing his paper, and it is unknown at this point if the Department of Homeland Security plans to take action against him. Several calls to the department on Monday went unreturned.
The student’s experience has set off an alarm among academics.
Williams, for one, says this circumstance illustrates that the federal government is overstepping its Constitutional bounds regarding academic freedom. After learning about this incident, Williams considered not offering a class on terrorism that he had planned on teaching next fall.
“I’m not some liberal firebrand,” Williams said Monday. “I think that the government does need to use its resources to protect us, but where do you draw the line?”
Williams labeled the Bush administration’s current stance on eavesdropping — which includes spying on conversations involving Americans and those in foreign countries — “a slippery slope.” “Research scholarship is going to be negatively affected,” he said. “And this all really puts a chill into someone like myself.”
Williams is concerned that his own telephone-based research for an upcoming book, which is based in part on communications with family members of Gen. Dostum-Uzbek, a leader of Afghanistan’s Northern Alliance, could have endangered foreign sources who entrusted him with information. He said that he believes he is “doing the government a tremendous service” by providing an “outside, objective source of information.”
“Instead,” he said, “academics are seen as a threat here — not a resource to be tapped.”
Uli Schamiloglu, a professor of Turkic and Central Eurasian studies at the University of Wisconsin at Madison, said the situation at UMass Dartmouth has significant implications for academic researchers. Capitalizing on U.S. Sen. Russell Feingold’s recent criticism of the Bush administration’s policies on domestic eavesdropping, Schamiloglu wrote a letter to the Wisconsin Democrat on Saturday highlighting some of his concerns.
“My colleagues and I and any other citizen interested in becoming better informed by reading the works of writers whose works have made an impact — for better or for worse — on modern history, politics and society are now at risk,” he wrote. “Even worse, it appears our students can now get into trouble simply for fulfilling the academic requirements of their courses!
“As an American, I am concerned that we are on the path to becoming like the totalitarian countries studied in the course taken by that poor student at the University of Massachusetts-Dartmouth,” wrote Schamiloglu. “In the Soviet Union banned books were kept in special collections under the control of the KGB. Perhaps that was a more honest approach than not telling people what books are on a ‘watch list’ and then investigating anybody who requests such books. This incident is too eerily familiar to anybody who has studied or visited the Soviet Union and other totalitarian states.”
In his research, Schamiloglu frequently conducts overseas phone calls. “It never occurred to be that our own government might be wiretapping me,” he said Monday. “But I guess that’s fair game now?”
Librarians, too, were deeply troubled by the incident in Massachusetts. “We are disheartened to learn about this,” Deborah Coldwell-Stone, deputy director of the Office for Intellectual Freedom at the American Library Association, said Monday. “This has all the marks of a totalitarian government. We’re seeing people judged — even though there was no indication whatsoever that this student is a terrorist…. This kind of spying is an abuse of power.”
Coldwell-Stone also indicated that no one in her organization is aware of a federal government “watch list” of books that could potentially get academic researchers into trouble.
Some librarians are especially concerned about how the student’s request through an interlibrary loan program could have been provided to federal officials. Massachusetts has a law that shields libraries from sharing patron information — unless a court requests it.
“At this point, it is difficult to ascertain how Homeland Security obtained the information about the student’s borrowing of the book,” according to a statement released Monday by Ann Montgomery Smith, interim dean of library services at UMass Dartmouth. “The UMass Dartmouth Library has not been visited by agents of any type seeking information about the borrowing patterns or habits of any of its patrons and did not handle the request for the book in question.
“The UMass Dartmouth library has established policies for handling requests under the Patriot Act and has taken every lawful measure possible to protect the confidentiality of patron records,” according to the statement.
Jean F. MacCormack, chancellor of the university, said, “It is important that our students and our faculty be unfettered in their pursuit of knowledge about other cultures and political systems if their education and research is to be meaningful. We must do everything possible to protect the principles of academic inquiry.”
Officials with the University of Massachusetts Amherst interlibrary loan program, which handled the student’s request, did not return calls for comment on Monday.
Several students have written to Williams requesting that he stand up for his right to teach classes even if they provoke government scrutiny.
“As a devoted American, I ask that you do NOT change your curriculum because of this incident,” wrote one student in an e-mail this weekend. “I believe it is important that we do not allow these fears to affect our freedoms. If we do, this will contribute to bringing our fears closer to reality. I suggest you simply offer a disclaimer in those classes that you feel students may be subjected to scrutiny.”
“I’d just like to say that I’m enrolled in your spring Islam and politics class and hope it won’t be canceled,” added another student. “I’m quite willing to be put on whatever watch list is necessary to study it.
Williams said Monday that he plans to go forward with his terrorism-related course.
by Rob in Baltimore - 12/20/2005 12:44:00 PM
The more rational voices in spy discussion (hint hint media, this is your job) might ask a simple question. If this spying is really all about terrorism then isn't it the President's constitutional responsibility to go to Congress and ask that laws - like FISA - be changed to protect America? (Wasn't that where the Patriot Act came from?)
From my perspective, the reason he didn't ask for laws to be changed is quite simple. It's because what they are doing isn't illegal (i.e. it breaks a law), it's unconstitutional. To bring this program into compliance with U.S. law, he would have to change the Constitution.
Funny, it's going to be strict construction that brings this Presidency to an early end. Prohibition on illegal search and seizure is a very clear and basic part of the Constitution (as opposed to the more attenuated logic of the Second Amendment):
Holy moly, that's clarity! Our Founding Fathers left little room for ambiguity. Let's break it down for a moment:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized
.-- United States Constitution, Amendment IV
The right of the people to be secure in their persons, houses, papers, andIt is my constitutionally defined RIGHT to be secure in my home against not just illegal, but "unreasonable", search. Moreover, the government may not infringe my rights unless it meets a very clear and unambiguous standard of probable cause, with further instruction that what is to be searched must be identified ahead of time:
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue,
but upon probable cause, supported by oath or affirmation, and particularlyIt's a fundamental right with a clear framework providing what is protected (persons, houses, papers, and effects) and limit upon the government's ability to infringe on that right.
describing the place to be searched, and the persons or things to be seized.
If the NSA tapped the communications of all Americans with overseas contact and simply scanned it all for certain keywords, then this President by his own admission has violated the constitutional rights of what could be millions of Americans.
Here's a question that pundits could ramble on about for a while: What is the punishment of a President when he breaks the Constitution?
Setting aside the constitutional question for a moment, it seems fairly clear the President personally violated FISA. Unlike the constitutional breach, the punishment of the President under FISA is clear:
Ã?Â§ 1809. Criminal sanctionsRelease date: 2005-03-17(a) Prohibited activities AThe President has already admitted that he personally approved the program without the oversight of a search warrant or a court order.
person is guilty of an offense if he intentionally-(1) engages in electronic
surveillance under color of law except as authorized by statute; or (2)
discloses or uses information obtained under color of law by electronic
surveillance, knowing or having reason to know that the information was obtained
through electronic surveillance not authorized by statute. (b) Defense It is a
defense to a prosecution under subsection (a) of this section that the defendant
was a law enforcement or investigative officer engaged in the course of his
official duties and the electronic surveillance was authorized by and conducted
pursuant to a search warrant or court order of a court of competent
jurisdiction.(c) Penalties An offense described in this section is punishable by
a fine of not more than $10,000 or imprisonment for not more than five years, or
both.(d) Federal jurisdiction There is Federal jurisdiction over an offense
under this section if the person committing the offense was an officer or
employee of the United States at the time the offense was committed.
Democrats - and all rational Americans - have a right to be angry. Abuse of power and violations of the Constitution don't get much clearer than this. The President talks a lot about amending the Constitution for things like gay marriage, but he can't ask for laws that protect Americans from terrorism? I'm not buying it.
Tue Dec 20, 2005 at 10:01:40 AM PDT
From the New York Times, to the Washington Times, from the Daily Kos to Free Republic, reactions to the revelations about the Bush administration's secret, domestic spying program once again highlights the divide between the reality-based community and administration apologists...consider this:
But none of these phony choices were as absurd as the one Mr. Bush posed toVersus this:
justify his secret program of spying on Americans: save lives or follow the law.
...we think the president's arguments persuasive. Mr. Bush has not flinched fromOr this:
the criticism, and we applaud him for that.
Did you get this? Gonzales says it was okay to spy on Americans withoutVersus this:
authorization because the war resolution gave them that power. But when asked
why they didn't ask for specific congressional authorization, he says, well,
Congress wouldn't have given them that power.
Clinton got a blowjob.No surprises here...but how is this story playing in Peoria?
We know how the story is playing in the blogsphere and we've gotten the expected reaction from the "big boys" of the MSM, but what are the editorial pages saying in the rest of the country? Here is a random sampling from five newspapers, three from red states, two from blue states.
From The Olympian (Olympia, Washington):
Every American should be outraged by the president's attempt to justify domesticOutstanding editorial...a message we'd like to get out to every Joe and Jane Six-pack in America. But Washington is a decidedly blue state, so let's look at the opinion from traditionally conservative areas. From The Idaho Statesman:
spying. It's wrong, and the president should acknowledge that fact. He must be
held accountable. [...]
Either we are a nation of laws and moral values or
we are not. We cannot pick and choose which laws to abide by and which to ignore
for the sake of convenience or expediency.
George Bush is not above the law.
President Bush has made a serious, startling revelation: He has authorized aOuch! And from The Telegraph (Macon, Georgia):
secret -- and ongoing -- campaign to eavesdrop on telephone calls to root out
possible terrorist activity.
Congress must react in a serious, nonpartisan
fashion. Lawmakers need to investigate the utility and the legality of this
operation. Idaho's Republican delegation should join the call for hearings.
"The fact that we're discussing this program is helping the enemy,"
Bush said Monday.
We think the discussion is necessary. In a system built on
checks and balances, it's up to Congress to make the most of the discussion.
Last Friday all hell broke loose in Washington, D.C. The New York Times revealedHmmm, not too friendly either. And from North Carolina, The Charlotte Observer says:
a secret eavesdropping program by the National Security Agency, authorized in
2002 by President George W. Bush. The agency was allowed to spy on Americans
without court-approved warrants. [...]
The president expects the American
public to trust him...The question citizens need to ask is, with all the added
powers included in the Patriot Act, why was it necessary to circumvent some of
its provisions? [...]
He has stepped up to the line of what is legal and
what is not. In the coming weeks we will find out if Mr. Bush crossed that line,
President Bush is right on one count. Protecting America from terrorist attacksFrom this quick and random sampling, no one was defending this latest assault on our Constitution....well, except the Washington Times and Free Republic.
requires the nation to think and act differently. But he is dead wrong to order
secret wiretaps of citizens without obtaining warrants. That kind of spying is
an assault on civil liberties -- one that should not stand. [...]
of war, it's even more vital for the nation's leaders to do their work with
integrity and meticulous attention to the letter and spirit of the law.
president owes Americans a direct apology for his actions, and a better
explanation than the one he has provided of why he would disregard their right
to due process.
Oh, and what about Peoria?
Is the leader of the free world suddenly anxious?The Peorians have spoken.
He should be, given the
recent reports of his federal government spying on the international phone
conversations and e-mails of American citizens, without court warrant. [...]
Perhaps the president's heart is in the right place. He says he just wants
to protect Americans. Who doesn't? It's really quite simple: The Founders were
clear that threats to the republic could come from inside as well as out. No
president, of any party, under any circumstance, should be permitted to act like
a king. This is troubling.
Pentagon anti-terror investigators labeled gay law school groups a "credible threat" of terrorism by John in DC - 12/20/2005 11:35:00 AM
Jesus f-in Christ. This has gone far beyond the pale. We need to do something now, and in massive numbers. I've been talking with several of the blogs and politicos in the last few days. This is even worse than I thought.From the Servicemembers Legal Defense Network, a great organization that was created ten years ago to help overturn the military's anti-gay Don't Ask Don't Tell policy.
According to recent press reports, Pentagon officials have been spying on what they call "suspicious" meetings by civilian groups, including student groups opposed to the military's "Don't Ask, Don't Tell" ban on lesbian, gay and bisexual military personnel. The story, first reported by Lisa Myers and NBC News last week, noted that Pentagon investigators had records pertaining to April protests at the State University of New York at Albany and William Patterson College in New Jersey. A February protest at NYU was also listed, along with the law school's LGBT advocacy group OUTlaw, which was classified as "possibly violent" by the Pentagon. A UC-Santa Cruz "Don't Ask, Don't Tell" protest, which included a gay kiss-in, was labeled as a "credible threat" of terrorism.Servicemembers Legal Defense Network (SLDN) condemned the Pentagon surveillance and monitoring. "The Pentagon is supposed to defend the Constitution, not turn it upside down," said SLDN executive director C. Dixon Osburn. "Students have a first amendment right to protest and Americans have a right to expect that their government will respect our constitutional right to privacy. To suggest that a gay kiss-in is a 'credible threat' is absurd, homophobic and irrational. To suggest the Constitution does not apply to groups with views differing with Pentagon policy is chilling."In January, the Department of Defense confirmed a report that Air Force officials proposed developing a chemical weapon in 1994 that would turn enemies gay. The proposal, part of a plan from Wright Air Force Base in Dayton, Ohio, was to develop "chemicals that effect (sic) human behavior so that discipline and morale in enemy units is adversely effected (sic). One distasteful but completely non-lethal example would be strong aphrodisiacs, especially if the chemical also caused homosexual behavior." SLDN also condemned that report, and the Pentagon later said it never intended to develop the program."The Pentagon seems to constantly find new and more offensive ways to demean lesbian, gay, bisexual and transgender people," said Osburn. "First, we were deemed unfit to serve our country, despite winning wars, medals and the praise of fellow service members. Then, our sexual orientation was suggested as a means to destabilize the enemy. Now, our public displays of affection are equated with al Qaeda terrorist activity. It is time for new Pentagon policy consistent with the views of 21st century America."SLDN announced it plans to submit a Freedom of Information Act request to learn if it or other LGBT organizations have also been monitored by the Pentagon. To date, only a small portion of DoD's total database of information has been made public.Sources that show the Pentagon keeping tabs on gay groups include this news report:
A secret Pentagon document obtained by NBC News reveals that the military has been spying on what they call "suspicious" civilian meetings - including many "Don't Ask, Don't Tell" protests.Only eight pages from the four-hundred page document have been released so far. But on those eight pages, Sirius OutQ News discovered that the Defense Department has been keeping tabs NOT just on anti-war protests, but also on seemingly non-threatening protests against the military's ban on gay servicemembers. According to those first eight pages, Pentagon investigators kept tabs on April protests at UC-Santa Cruz, State University of New York at Albany, and William Patterson College in New Jersey. A February protest at NYU was also listed, along with the law school's gay advocacy group "OUTlaw," and was classified as "possibly violent."All of these protests were against the military's policy excluding gay personnel, and against the presence of military recruiters on campus. The Servicemembers Legal Defense Network says the Pentagon needs to explain why "don't ask, don't tell" protesters are considered a threat.
Pennsylvania is not Kansas
Tuesday, December 20, 2005; Posted: 11:50 a.m. EST (16:50 GMT)
HARRISBURG, Pennsylvania (AP) -- "Intelligent design" cannot be mentioned in biology classes in a Pennsylvania public school district, a federal judge said Tuesday, ruling in one of the biggest courtroom clashes on evolution since the 1925 Scopes trial.
Dover Area School Board members violated the Constitution when they ordered that its biology curriculum must include the notion that life on Earth was produced by an unidentified intelligent cause, U.S. District Judge John E. Jones III said.
Several members repeatedly lied to cover their motives even while professing religious beliefs, he said.
The school board policy, adopted in October 2004, was believed to have been the first of its kind in the nation.
"The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy," Jones wrote.
The board's attorneys had said members were seeking to improve science education by exposing students to alternatives to Charles Darwin's theory that evolution develops through natural selection. Intelligent-design proponents argue that the theory cannot fully explain the existence of complex life forms.
The plaintiffs challenging the policy argued intelligent design amounts to a secular repackaging of creationism, which the courts have already ruled cannot be taught in public schools. The judge agreed.
"We find that the secular purposes claimed by the Board amount to a pretext for the Board's real purpose, which was to promote religion in the public school classroom," he wrote in his 139-page opinion.
The Dover policy required students to hear a statement about intelligent design before ninth-grade biology lessons on evolution. The statement said Charles Darwin's theory is "not a fact" and has inexplicable "gaps." It refers students to an intelligent-design textbook, "Of Pandas and People," for more information.
Jones wrote that he wasn't saying the intelligent design concept shouldn't be studied and discussed, saying its advocates "have bona fide and deeply held beliefs which drive their scholarly endeavors."
But, he wrote, "our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom."
The controversy divided the community and galvanized voters to oust eight incumbent school board members who supported the policy in the November 8 school board election.
Said the judge: "It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy."
The board members were replaced by a slate of eight opponents who pledged to remove intelligent design from the science curriculum.
Eric Rothschild, the lead attorney for the families who challenged the policy, called the ruling "a real vindication for the parents who had the courage to stand up and say there was something wrong in their school district."
Richard Thompson, president and chief counsel of the Thomas More Law Center in Ann Arbor, Michigan, which represented the school board, did not immediately return a telephone message seeking comment.
The dispute is the latest chapter in a long-running debate over the teaching of evolution dating back to the famous 1925 Scopes Monkey Trial, in which Tennessee biology teacher John T. Scopes was fined $100 for violating a state law that forbade teaching evolution. The Tennessee Supreme Court reversed his conviction on a technicality, and the law was repealed in 1967.
Jones heard arguments in the fall during a six-week trial in which expert witnesses for each side debated intelligent design's scientific merits. Other witnesses, including current and former school board members, disagreed over whether creationism was discussed in board meetings months before the curriculum change was adopted.
The case is among at least a handful that have focused new attention on the teaching of evolution in the nation's schools.
Earlier this month, a federal appeals court in Georgia heard arguments over whether evolution disclaimer stickers placed in a school system's biology textbooks were unconstitutional. A federal judge in January ordered Cobb County school officials, in suburban Atlanta, to immediately remove the stickers, which called evolution a theory, not a fact.
In November, state education officials in Kansas adopted new classroom science standards that call the theory of evolution into question.
Text of the school's statement
Text of the statement on "intelligent design" that Dover Area High School administrators have been reading to students at the start of biology lessons on evolution:
The Pennsylvania Academic Standards require students to learn about Darwin's theory of evolution and eventually to take a standardized test of which evolution is a part.
Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. The theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.
Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book, "Of Pandas and People," is available in the library along with other resources for students who might be interested in gaining an understanding of what intelligent design actually involves.
With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments.