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NEWS DIGEST 2005.06.01 - 2005.12.31
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Washington Post --

December 31, 2005

JUSTICE DEPT. INVESTIGATING LEAK OF NSA WIRETAPPING
Probe Seeks Source Of Classified Data

By Dan Eggen

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/30/
AR2005123000538.html

The Justice Department has opened a criminal investigation into recent
disclosures about a controversial domestic eavesdropping program that was
secretly authorized by President Bush after the Sept. 11, 2001, attacks,
officials said yesterday.

Federal prosecutors will focus their examination on who may have unlawfully
disclosed classified information about the program to the New York Times, which
reported two weeks ago that Bush had authorized the National Security Agency to
monitor the international telephone calls and e-mails of U.S. citizens and
residents without court-approved warrants, officials said.

The Justice Department's decision to reveal the opening of a criminal
investigation is rare, particularly given the highly classified nature of the
probe. White House deputy press secretary Trent Duffy told reporters in
Crawford, Tex., yesterday that the department "undertook this action on its own"
and that Bush had only learned about it from senior staff earlier in the day.

But Duffy reiterated earlier statements by Bush, who had sharply condemned the
disclosure of the NSA program and argued that it seriously damaged national
security.

"The fact is that al Qaeda's playbook is not printed on Page One, and when
America's is, it has serious ramifications," Duffy said, reading from prepared
remarks. "You don't need to be Sun Tzu to understand that," he added, referring
to the ancient Chinese general who wrote "The Art of War."

Leak investigations generally begin with a referral to the Justice Department by
the agency in question -- in this case the NSA -- which prompts a preliminary
inquiry by prosecutors to determine whether a crime has been committed. The
opening of a criminal investigation signals that prosecutors believe that laws
barring disclosure of classified information by government officials were
broken. It is likely to be a full-blown probe involving FBI agents and
department investigators.

The case is the latest in a series of clashes between the Fourth Estate and the
Bush administration, which has aggressively enforced restrictions on classified
information and has frequently complained about press disclosures related to
terrorism or the war in Iraq.

Earlier this year, a grand jury investigation by Special Counsel Patrick J.
Fitzgerald into the disclosure of CIA agent Valerie Plame's identity resulted in
the jailing of Judith Miller, then a reporter at the New York Times, for
refusing to testify, and in criminal charges against I. Lewis "Scooter" Libby,
who resigned as Vice President Cheney's chief of staff. That probe is ongoing.

In another recent case, the CIA general counsel's office notified the Justice
Department in November that classified information had been disclosed in a
report by The Washington Post on the existence of secret "black site" prisons in
Eastern Europe and elsewhere. Department officials declined to comment yesterday
on whether that referral has also led to a full criminal probe.

News of the domestic spying program by the NSA, which is normally restricted to
eavesdropping overseas, set off a firestorm of criticism from lawmakers and
civil liberties advocates and contributed to the administration's failure to
persuade Congress to pass a renewed version of the USA Patriot Act anti-
terrorism law. The GOP chairman of the Senate Judiciary Committee has vowed to
hold hearings on the NSA program, and some other Republicans have demanded a
congressional probe into the leak.

The spying program also angered judges on a special court that administers the
Foreign Intelligence Surveillance Act, which governs clandestine surveillance
within the United States and which requires warrants for secret searches and
wiretaps. One of the panel's members, U.S. District Judge James Robertson,
submitted his resignation from the secret court in protest, according to sources
familiar with his decision.

Soon after the story broke Dec. 15 in the online edition of the New York Times,
Bush and other administration officials took the unusual step of publicly
acknowledging the program's existence, describing details of its operation and
arguing that the initiative was legal and necessary in a time of war. Attorney
General Alberto R. Gonzales said the program "is probably the most highly
classified program that exists in the United States government."

The Times said it held the story for a year after the administration argued that
its disclosure would harm national security. The published story relied on
"nearly a dozen current and former officials," the newspaper said. Times
spokeswoman Catherine Mathis declined to comment on the Justice Department probe
yesterday.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the
Press, a journalism advocacy group, said the leak probe underscores the need for
a federal "shield law" to protect reporters' sources. She and other observers
also said that the NSA case appears to be less controversial, from a
journalistic point of view, than the Plame case, which involves journalists
attempting to protect sources allegedly engaged in political attacks.

"It doesn't seem to me that this leak investigation will take on the importance
of the Plame case," said Carl W. Tobias, a law professor at the University of
Richmond. "The bigger story here is still the one about domestic spying and
whether the president intends, as he said, to continue doing it."

The American Civil Liberties Union, which has argued that a special prosecutor
should be appointed to determine whether Bush violated federal wiretapping laws,
called the leak probe an unwarranted attack on whistle-blowers.

"Attorney General Gonzales is cracking down on critics of his friend and boss,"
said ACLU Executive Director Anthony D. Romero.

[ Staff writer Lisa Rein in Crawford, Tex., contributed to this report. ]

*


Washington Post --

December 30, 2005

COVERT CIA PROGRAM WITHSTANDS NEW FUROR
Anti-Terror Effort Continues to Grow

By Dana Priest

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/29/
AR2005122901585.html

The effort President Bush authorized shortly after Sept. 11, 2001, to fight al
Qaeda has grown into the largest CIA covert action program since the height of
the Cold War, expanding in size and ambition despite a growing outcry at home
and abroad over its clandestine tactics, according to former and current
intelligence officials and congressional and administration sources.

The broad-based effort, known within the agency by the initials GST, is
compartmentalized into dozens of highly classified individual programs, details
of which are known mainly to those directly involved.

GST includes programs allowing the CIA to capture al Qaeda suspects with help
from foreign intelligence services, to maintain secret prisons abroad, to use
interrogation techniques that some lawyers say violate international treaties,
and to maintain a fleet of aircraft to move detainees around the globe. Other
compartments within GST give the CIA enhanced ability to mine international
financial records and eavesdrop on suspects anywhere in the world.

Over the past two years, as aspects of this umbrella effort have burst into
public view, the revelations have prompted protests and official investigations
in countries that work with the United States, as well as condemnation by
international human rights activists and criticism by members of Congress.

Still, virtually all the programs continue to operate largely as they were set
up, according to current and former officials. These sources say Bush's personal
commitment to maintaining the GST program and his belief in its legality have
been key to resisting any pressure to change course.

"In the past, presidents set up buffers to distance themselves from covert
action," said A. John Radsan, assistant general counsel at the CIA from 2002 to
2004. "But this president, who is breaking down the boundaries between covert
action and conventional war, seems to relish the secret findings and the dirty
details of operations."

The administration's decisions to rely on a small circle of lawyers for legal
interpretations that justify the CIA's covert programs and not to consult widely
with Congress on them have also helped insulate the efforts from the growing
furor, said several sources who have been involved.

Bush has never publicly confirmed the existence of a covert program, but he was
recently forced to defend the approach in general terms, citing his wartime
responsibilities to protect the nation. In November, responding to questions
about the CIA's clandestine prisons, he said the nation must defend against an
enemy that "lurks and plots and plans and wants to hurt America again."

This month he went into more detail, defending the National Security Agency's
warrantless eavesdropping within the United States. That program is separate
from the GST program, but three lawyers involved said the legal rationale for
the NSA program is essentially the same one used to support GST, which is an
abbreviation of a classified code name for the umbrella covert action program.

The administration contends it is still acting in self-defense after the Sept.
11 attacks, that the battlefield is worldwide, and that everything it has
approved is consistent with the demands made by Congress on Sept. 14, 2001, when
it passed a resolution authorizing "all necessary and appropriate force against
those nations, organizations, or persons [the president] determines planned,
authorized, committed, or aided the terrorist attacks."

"Everything is done in the name of self-defense, so they can do anything because
nothing is forbidden in the war powers act," said one official who was briefed
on the CIA's original cover program and who is skeptical of its legal
underpinnings. "It's an amazing legal justification that allows them to do
anything," said the official, who like others spoke on the condition of
anonymity because of the sensitivity of the issues.

The interpretation undergirds the administration's determination not to waver
under public protests or the threat of legislative action. For example, after
The Washington Post disclosed the existence of secret prisons in several Eastern
European democracies, the CIA closed them down because of an uproar in Europe.
But the detainees were moved elsewhere to similar CIA prisons, referred to as
"black sites" in classified documents.

The CIA has stuck with its overall approaches, defending and in some cases
refining them. The agency is working to establish procedures in the event a
prisoner dies in custody. One proposal circulating among mid-level officers
calls for rushing in a CIA pathologist to perform an autopsy and then quickly
burning the body, according to two sources.

In June, the CIA temporarily suspended its interrogation program after a
controversy over the disclosure of an Aug. 1, 2002, memorandum from the Justice
Department's Office of Legal Counsel that defined torture in an unconventional
way. The White House withdrew and replaced the memo. But the hold on the CIA's
interrogation activities was eventually removed, several intelligence officials
said.

The authorized techniques include "waterboarding" and "water dousing," both
meant to make prisoners think they are drowning; hard slapping; isolation; sleep
deprivation; liquid diets; and stress positions -- often used, intelligence
officials say, in combination to enhance the effect.

Behind the scenes, CIA Director Porter J. Goss -- until last year the Republican
chairman of the House intelligence committee -- has gathered ammunition to
defend the program.

After a CIA inspector general's report in the spring of 2004 stated that some
authorized interrogation techniques violated international law, Goss asked two
national security experts to study the program's effectiveness.

Gardner Peckham, an adviser to then-House Speaker Newt Gingrich (R-Ga.),
concluded that the interrogation techniques had been effective, said an
intelligence official familiar with the result. John J. Hamre, deputy defense
secretary under President Bill Clinton, offered a more ambiguous conclusion.
Both declined to comment.

The only apparent roadblock that could yet prompt significant change in the
CIA's approach is a law passed this month prohibiting torture and cruel and
inhumane treatment of prisoners in U.S. custody, including in CIA hands.

It is still unclear how the law, sponsored by Sen. John McCain (R-Ariz.), will
be implemented. But two intelligence experts said the CIA will be required to
draw up clear guidelines and to get all special interrogation techniques
approved by a wider range of government lawyers who hold a more conventional
interpretation of international treaty obligations.

"The executive branch will not pull back unless it has to," said a former
Justice Department lawyer involved in the initial discussions on executive
power. "Because if it pulls back unilaterally and another attack occurs, it will
get blamed."
The Origins

The top-secret presidential finding Bush signed six days after the Sept. 11
attacks empowered the intelligence agencies in a way not seen since World War
II, and it ordered them to create what would become the GST program.

Written findings are required by the National Security Act of 1947 before the
CIA can undertake a covert action. A covert action may not violate the
Constitution or any U.S. law. But such actions can, and often do, violate laws
of the foreign countries in which they take place, said intelligence experts.

The CIA faced the day after the 2001 attacks with few al Qaeda informants, a
tiny paramilitary division and no interrogators, much less a system for
transporting terrorism suspects and keeping them hidden for interrogation.

Besides fighting the war in Afghanistan, the agency set about to put in place an
intelligence-gathering network that relies heavily on foreign security services
and their deeper knowledge of local terrorist groups. With billions of dollars
appropriated each year by Congress, the CIA has established joint
counterterrorism intelligence centers in more than two dozen countries, and it
has enlisted at least eight countries, including several in Eastern Europe, to
allow secret prisons on their soil.

Working behind the scenes, the CIA has gained approval from foreign governments
to whisk terrorism suspects off the streets or out of police custody into a
clandestine prison system that includes the CIA's black sites and facilities run
by intelligence agencies in other countries.

The presidential finding also permitted the CIA to create paramilitary teams to
hunt and kill designated individuals anywhere in the world, according to a dozen
current and former intelligence officials and congressional and executive branch
sources.

In four years, the GST has become larger than the CIA's covert action programs
in Afghanistan and Central America in the 1980s, according to current and former
intelligence officials. Indeed, the CIA, working with foreign counterparts, has
been responsible for virtually all of the success the United States has had in
capturing or killing al Qaeda leaders since Sept. 11, 2001.

Bush delegated much of the day-to-day decision-making and the creation of
individual components to then-CIA Director George J. Tenet, according to
congressional and intelligence officials who were briefed on the finding at the
time.

"George could decide, even on killings," one of these officials said, referring
to Tenet. "That was pushed down to him. George had the authority on who was
going to get it."
The Lawyers

Tenet, according to half a dozen former intelligence officials, delegated most
of the decision making on lethal action to the CIA's Counterterrorist Center.
Killing an al Qaeda leader with a Hellfire missile fired from a remote-
controlled drone might have been considered assassination in a prior era and
therefore banned by law.

But after Sept. 11, four former government lawyers said, it was classified as an
act of self-defense and therefore was not an assassination. "If it was an al
Qaeda person, it wouldn't be an assassination," said one lawyer involved.

This month, Pakistani intelligence sources said, Hamza Rabia, a top operational
planner for al Qaeda, was killed along with four others by a missile fired by
U.S. operatives using an unmanned Predator drone, although there were
conflicting reports on whether a missile was used. In May, another al Qaeda
member, Haitham Yemeni, was reported killed by a Predator drone missile in
northwest Pakistan.

Refining what constitutes an assassination was just one of many legal
interpretations made by Bush administration lawyers. Time and again, the
administration asked government lawyers to draw up new rules and reinterpret old
ones to approve activities once banned or discouraged under the congressional
reforms beginning in the 1970s, according to these officials and seven lawyers
who once worked on these matters.

Gen. Michael V. Hayden, deputy director of national intelligence, has described
the administration's philosophy in public and private meetings, including a
session with human rights groups.

"We're going to live on the edge," Hayden told the groups, according to notes
taken by Human Rights Watch and confirmed by Hayden's office. "My spikes will
have chalk on them. . . . We're pretty aggressive within the law. As a
professional, I'm troubled if I'm not using the full authority allowed by law."

Not stopping another attack not only will be a professional failure, he argued,
but also "will move the line" again on acceptable legal limits to
counterterrorism.

When the CIA wanted new rules for interrogating important terrorism suspects the
White House gave the task to a small group of lawyers within the Justice
Department's Office of Legal Counsel who believed in an aggressive
interpretation of presidential power.

The White House tightened the circle of participants involved in these most
sensitive new areas. It initially cut out the State Department's general
counsel, most of the judge advocates general of the military services and the
Justice Department's criminal division, which traditionally dealt with
international terrorism.

"The Bush administration did not seek a broad debate on whether commander-in-
chief powers can trump international conventions and domestic statutes in our
struggle against terrorism," said Radsan, the former CIA lawyer, who is a
professor at William Mitchell College of Law in St. Paul, Minn. "They could have
separated the big question from classified details to operations and had an open
debate. Instead, an inner circle of lawyers and advisers worked around the
dissenters in the administration and one-upped each other with extreme
arguments."

At the CIA, the White House allowed the general counsel's job, traditionally
filled from outside the CIA by someone who functioned in a sort of oversight
role, to be held by John Rizzo, a career CIA lawyer with a fondness for flashy
suits and ties who worked for years in the Directorate of Operations, or D.O.

"John Rizzo is a classic D.O. lawyer. He understands the culture, the
intelligence business," Radsan said. "He admires the case officers. And they
trust him to work out tough issues in the gray with them. He is like a corporate
lawyer who knows how to make the deal happen."

These lawyers have written legal justifications for holding suspects picked up
outside Afghanistan without a court order, without granting traditional legal
rights and without giving them access to the International Committee of the Red
Cross.

CIA and Office of Legal Counsel lawyers also determined that it was legal for
suspects to be secretly detained in one country and transferred to another for
the purposes of interrogation and detention -- a process known as "rendition."

Lawyers involved in the decision making acknowledge the uncharted nature of
their work. "I did what I thought the best reading of the law was," one lawyer
said. "These lines are not obvious. It was a judgment."
Credit and Blame

One way the White House limited debate over its program was to virtually shut
out Congress during the early years. Congress, for its part, raised only weak
and sporadic protests. The administration sometimes refused to give the
committees charged with overseeing intelligence agencies the details they
requested. It also cut the number of members of Congress routinely briefed on
these matters, usually to four members -- the chairmen and ranking Democratic
members of the House and Senate intelligence panels.

John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate Select Committee
on Intelligence, complained in a 2003 letter to Vice President Cheney that his
briefing on the NSA eavesdropping was unsatisfactory. "Given the security
restrictions associated with this information, and my inability to consult staff
or counsel on my own, I feel unable to fully evaluate, much less endorse, these
activities," he wrote.

Rockefeller made similar complaints about the CIA's refusal to allow the full
committee to see the backup material supporting a skeptical report by the CIA
inspector general in 2004 on detentions and interrogations that questioned the
legal basis for renditions.

Some former CIA officers now worry that the agency alone will be held
responsible for actions authorized by Bush and approved by the White House's
lawyers.

Attacking the CIA is common when covert programs are exposed and controversial,
said Gerald Haines, a former CIA historian who is a scholar in residence at the
University of Virginia. "It seems to me the agency is taking the brunt of all
the recent criticism."

Duane R. "Dewey" Clarridge, who directed the CIA's covert efforts to support the
Nicaraguan contras in the 1980s, said the nature of CIA work overseas is, and
should be, risky and sometimes ugly. "You have a spy agency because the spy
agency is going to break laws overseas. If you don't want it to do those
dastardly things, don't have it. You can have the State Department."

But a former CIA officer said the agency "lost its way" after Sept. 11, rarely
refusing or questioning an administration request. The unorthodox measures "have
got to be flushed out of the system," the former officer said. "That's how it
works in this country."

[ Researcher Julie Tate contributed to this report. ]

*


New York Times --

December 27, 2005
UNWARRANTED COMPLAINTS
By David B. Rivkin and Lee A. Casey

http://www.nytimes.com/2005/12/27/opinion/27casey.html

SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of
international telephone communications by suspected members of Al Qaeda
overseas, even if such calls also involved individuals within the United States.
This program was adopted by direct presidential order and was subject to review
every 45 days. Judicial warrants for this surveillance were neither sought nor
obtained, although key members of Congress were evidently informed. The
program's existence has now become public, and howls of outrage have ensued. But
in fact, the only thing outrageous about this policy is the outrage itself.

The president has the constitutional authority to acquire foreign intelligence
without a warrant or any other type of judicial blessing. The courts have
acknowledged this authority, and numerous administrations, both Republican and
Democrat, have espoused the same view. The purpose here is not to detect crime,
or to build criminal prosecutions - areas where the Fourth Amendment's warrant
requirements are applicable - but to identify and prevent armed attacks on
American interests at home and abroad. The attempt, by Democrats and Republicans
alike, to dismantle the president's core constitutional power in wartime is
wrongheaded and should be vigorously resisted by the administration.

After all, even the administration's sternest critics do not deny the compelling
need to collect intelligence about Al Qaeda's plans so we can thwart future
attacks. So instead of challenging the program on policy grounds, most have
focused on its legal propriety, specifically Mr. Bush's decision not to follow
the framework established by the 1978 Foreign Intelligence Surveillance Act.

In an effort to control counterintelligence activities in the United States
during the cold war, the surveillance act established a special court, known as
the FISA court, with authority to issue wiretapping warrants. Instead of having
to show that it has "probable cause" to believe criminal activity is taking
place (which is required to obtain a warrant in an ordinary investigation), the
government can get a warrant from the FISA court when there is probable cause to
believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for
good reasons. The procedures under the surveillance act are streamlined, but
nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court
is not a rubber stamp and may well decline to issue warrants even when wartime
necessity compels surveillance. More to the point, the surveillance act was
designed for the intricate "spy versus spy" world of the cold war, where move
and countermove could be counted in days and hours, rather than minutes and
seconds. It was not drafted to deal with the collection of intelligence
involving the enemy's military operations in wartime, when information must be
put to immediate use.

Indeed, it is highly doubtful whether individuals involved in a conflict have
any "reasonable expectation of privacy" in their communications, which is the
touchstone of protection under both the Fourth Amendment and the surveillance
act itself - anymore than a tank commander has a reasonable expectation of
privacy in his communications with his commanders on the battlefield. The same
goes for noncombatants swept up in the hostilities.

Even if Congress had intended to restrict the president's ability to obtain
intelligence in such circumstances, it could not have constitutionally done so.
The Constitution designates the president as commander in chief, and Congress
can no more direct his exercise of that authority than he can direct Congress in
the execution of its constitutional duties. As the FISA court itself noted in
2002, the president has "inherent constitutional authority to conduct
warrantless foreign intelligence surveillance."

In this instance, in addition to relying on his own inherent constitutional
authority, the president can also draw upon the specific Congressional
authorization "to use all necessary and appropriate force" against those
responsible for the Sept. 11 attacks "in order to prevent any future attacks of
international terrorism against the United States." These words are sufficiently
broad to encompass the gathering of intelligence about the enemy, its movements,
its abilities and its plans, a core part of the use of force against Al Qaeda
and its allies. The authorization does not say that the president can order the
use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush
is barred from doing so.

The fact that the statutory language does not specifically mention intelligence
collection, or that this matter was not raised by the White House in
negotiations with Congress, or even that the administration had sought even
broader language, all points recently raised by former Senator Tom Daschle, is
irrelevant.

Overall, this surveillance program is fully within the president's legal
authority, is limited in scope (involving communications to or from overseas
related to the war against Al Qaeda), and is subject to stringent presidential
review. The contretemps its revelation has caused reveals much more about the
chattering classes' fundamental antipathy to strong government in general, and
strong executive power in particular, than it does about presidential
overreaching.

The Constitution's framers did not vest absolute power in any branch of the
federal government, including the courts, but they did create a strong executive
and equipped the office with sufficient authority to act energetically to defend
the national interest in wartime. That is what President Bush has done, and
nothing more.

[ David B. Rivkin and Lee A. Casey are lawyers who served in the Justice
Department in the Reagan and George H. W. Bush administrations. ]

*


Washington Post --

December 26, 2005

SCHOLAR STANDS BY POST-9/11 WRITINGS ON TORTURE, DOMESTIC EAVESDROPPING
Former Justice Official Says He Was Interpreting Law, Not Making Policy

By Peter Slevin

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/25/
AR2005122500570.html

John Yoo knows the epithets of the libertarians, the liberals and the lefties.
Widely considered the intellectual architect of the most dramatic assertion of
White House power since the Nixon era, he has seen constitutional scholars
skewer his reasoning and students call for his ouster from the University of
California at Berkeley.

Civil liberties advocates were appalled by a memo he helped draft on torture.
The State Department's chief legal adviser at the time called his analysis of
the Geneva Conventions "seriously flawed." Supreme Court Justice Sandra Day
O'Connor wrote, in a critique of administration views espoused by Yoo, "a state
of war is not a blank check for the President when it comes to the rights of the
Nation's citizens."

Yoo has alienated so many influential opponents that he is considered
unconfirmable for a judgeship or high office, not unlike a certain conservative
jurist rejected by the Senate for the Supreme Court.

"Someone said to me that I was the Robert Bork of my generation," he reported
the other day.

Yet Yoo, 38, an engaging and outspoken lifelong conservative who clerked for
Supreme Court Justice Clarence Thomas, can be found at seminars and radio
microphones, standing up for Bush administration legal arguments that will be
studied for decades.

"The worst thing you could do, now that people are critical of your views, is to
run and hide. I agree with the work I did. I have an obligation to explain it,"
Yoo said from his Berkeley office. "I'm one of the few people who is willing to
defend decisions I made in government."

Those decisions, made when he was a mid-level Justice Department adviser, have
been the most fiercely contested legal positions of the Bush presidency. Framing
the battle against terrorism as a wartime emergency, Yoo redefined torture,
reinterpreted the Constitution and classified as archaic the long-established
humanitarian rules of the battlefield.

Yoo wrote a memo that said the White House was not bound by a federal law
prohibiting warrantless eavesdropping on communications that originated or ended
in the United States. When news of the program broke, members of both parties
called for hearings.

Yoo believes he was correct, even if critics say the U.S. response to the Sept.
11, 2001, attacks "threatens the very idea of America," as one editorial said.
"It would be inappropriate for a lawyer to say, 'The law means A, but I'm going
to say B because to interpret it as A would violate American values,'" Yoo said.
"A lawyer's job is if the law says A, the law says A."

How Yoo, who has never met President Bush or Vice President Cheney, came to be a
principal interpreter of laws and the Constitution for the Bush team is a story
rooted in his conservative convictions and a network of like-minded thinkers who
helped him thrive.

"He has succeeded and won people over and advanced his ideas," said Manus
Cooney, who hired Yoo on to the Judiciary Committee staff of Sen. Orrin G. Hatch
(R-Utah) in 1995. "As far as conservative academics, I don't think there's
anyone in the law whose contacts run deeper in the three branches, or higher."

Yoo traces his convictions in no small part to his parents, and Ronald Reagan.
His father and mother are psychiatrists who grew up in Korea during the Japanese
occupation and the Korean War. They emigrated in 1967, when Yoo was 3 months
old. They sought three things, he said: education, economic opportunity and
democracy. They settled in Philadelphia because they admired Eugene Ormandy,
then conductor of the Philadelphia Orchestra.

Coming of age in an anti-communist household, Yoo said, he associated strong
opposition to communist rule with the Republican Party and was himself
"attracted to Reagan's message." What he liked most in conservatism was "the
grounding in reason and reasonableness."

Yoo attended Episcopal Academy, a private religious school where he studied
history, Latin and Greek. Then came Harvard, where he discovered that many
people he encountered "were very different-minded, who thought that
conservatives were actually sort of stupid or backward." He studied diplomatic
history and worked for the school newspaper, where in 1988 he wrote a
presidential endorsement of George H.W. Bush rejected by the editorial board's
liberal majority.

"It got even worse at law school," Yoo said, recalling the first meeting he
attended at the Federalist Society, a national organization of conservatives and
libertarians, which attracted all of nine people. Critical of some fellow
students who, he said, considered abortion and affirmative action to be the
era's most important questions, he settled on matters of war and peace.

With the help of his Federalist Society contacts, he landed a clerkship with
U.S. Appeals Judge Laurence H. Silberman, known for his experience in national
security issues. Soon after being hired at Berkeley, which Yoo described as the
best school to offer him a tenure-track job, he left for the Supreme Court,
where he clerked for Thomas and played squash with Justice Antonin Scalia.

Yoo reached the Judiciary Committee staff after Hatch began a search for bright,
conservative up-and-comers. Cooney, the staff director, said Yoo maneuvered
well: "His smarts are undeniable, but unlike others of similar or equal wattage,
he has an appreciation for the political nature of D.C."

Returning to Berkeley, Yoo -- who had interned for the Wall Street Journal --
turned to his legal writings and op-eds. He earned tenure in 1999.

Along the way, he became a regular at the conservative American Enterprise
Institute in Washington, where he often found himself in sync with international
law skeptic John R. Bolton, an ally of Cheney's and now ambassador to the United
Nations. Yoo also testified to the GOP-led Florida legislature during the 2000
presidential recount.

Despite his resume and connections, Yoo required a particular convergence for
his views to become as influential as they did. He needed a well-placed
position, a national crisis and a receptive audience. He quickly got all three.

Known for his belief in a strong presidency, he joined the Justice Department's
Office of Legal Counsel, which advises the attorney general and the White House,
in July 2001. Two months later came the terrorist attacks and the rush to
respond. Soon, Yoo found his audience in the highest echelons of the White
House, where the president and vice president already tended to see the courts,
Congress and international conventions as constraints on the conduct of foreign
affairs and national security.

"He was the right person in the right place at the right time," said Georgetown
University's David Cole, a constitutional scholar and administration critic.
"Here was someone who had made his career developing arguments for unchecked
power, who could cut-and-paste from his law review articles into memos that
essentially told the president, 'You can do what you want.' "

In a series of opinions, Yoo argued that the Constitution grants the president
virtually unhindered discretion in wartime. He said the fight against terrorism,
with no fixed battlefield or uniformed enemy, was a new kind of war.

Two weeks after Sept. 11, Yoo said in a memo for the White House that the
Constitution conferred "plenary," or absolute, authority to use force abroad,
"especially in response to grave national emergencies created by sudden,
unforeseen attacks on the people and territory of the United States."

In reasoning Bush cited last week in defending his decision to authorize
warrantless wiretapping of U.S. citizens, Yoo's Sept. 25, 2001, memo said
Congress granted the president great latitude on Sept. 14, 2001, when it
supported the use of force in response to the attacks. The resolution specified
the Sept. 11 plotters and their supporters.

"Nonetheless," the memo concluded, "the President's broad constitutional power
to use military force to defend the Nation, recognized by the Joint Resolution
itself, would allow the President to take whatever actions he deems appropriate
to pre-empt or respond to terrorist threats from new quarters."

The majority view among constitutional scholars holds that the Framers purposely
imposed checks on the executive branch, even in wartime, not least in reaction
to the rule of Britain's King George III. On such issues, Yoo's critics contend,
he went too far. "It's largely a misreading of original intent," Cole said. "The
Framers, above all, were concerned about a strong executive."

An Aug. 1, 2002, memo on interrogation, written largely by Yoo, drew the most
intense criticism. Saying the administration was not bound by federal anti-
torture laws, it declared that, to be considered torture, techniques must
produce lasting psychological damage or suffering "equivalent in intensity to
the pain accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death."

Word of the memo sparked an outcry, causing the White House to back away.

"The idea that . . . Congress has no authority to impose limits on torture has
little support in constitutional texts or history, or legal precedent," said
University of Chicago law professor Cass Sunstein. Yet Sunstein, like many of
Yoo's critics, called him "a very interesting and provocative scholar" who
"doesn't deserve the demonization to which he has been subject."

Yoo thinks his critics should understand that he offered legal advice, while
others made policy.

"I think people don't understand how difficult was the work we did, how
difficult the questions, how recent the 9/11 attacks were," he said. "There was
no book at the time you could open and say, 'under American law, this is what
torture means.' "

"The lawyer's job is to say, 'This is what the law says and this is what you
can't do,' " Yoo said. He advised the White House that the Geneva Conventions do
not apply to al Qaeda or the terrorism fight, "but the president could say as a
matter of policy we're going to apply them anyway."

Elisa Massimino, Washington director of Human Rights First, is among those who
say Yoo deserves considerable blame. "The issues which have most disturbed
Americans about the conduct of the executive branch in fighting terrorism can
ultimately be traced to legal theories that he espoused in memos pushing the
administration in that direction," she said.

Yoo draws inspiration from Thomas and Hatch, saying, "I've seen how they've
persevered and still stand up for what they believe in and get their point
across." It is a style affirmed by Bork, who wrote a glowing blurb for Yoo's new
book, "The Powers of War and Peace."

"He's just being vilified. It's the usual conduct of business in this town right
now," Bork said. "You argue your position. What else can you do? There's no
tactic that can deflect criticism."

[ Research editor Lucy Shackelford and researcher Julie Tate contributed to this
report. ]

*


Seattle Post-Intelligencer --

December 24, 2005

SECRET COURT MODIFIED WIRETAP REQUESTS
Intervention may have led Bush to bypass panel

By Stewart M. Powell

http://seattlepi.nwsource.com/national/253334_nsaspying24.html

WASHINGTON -- Government records show that the administration was encountering
unprecedented second-guessing by the secret federal surveillance court when
President Bush decided to bypass the panel and order surveillance of U.S.-based
terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old
Foreign Intelligence Surveillance Court modified more wiretap requests from the
Bush administration than from the four previous presidential administrations
combined.

The court's repeated intervention in Bush administration wiretap requests may
explain why the president decided to bypass the court nearly four years ago to
launch secret National Security Agency spying on hundreds and possibly thousands
of Americans and foreigners inside the United States, according to James
Bamford, an acknowledged authority on the supersecret NSA, which intercepts
telephone calls, e-mails, faxes and Internet communications.

"They wanted to expand the number of people they were eavesdropping on, and they
didn't think they could get the warrants they needed from the court to monitor
those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-
Secret National Security Agency" and "The Puzzle Palace: Inside America's Most
Secret Intelligence Organization." "The FISA court has shown its displeasure by
tinkering with these applications by the Bush administration."

Bamford offered his speculation in an interview last week.

The 1978 Foreign Intelligence Surveillance Act, adopted by Congress in the wake
of President Nixon's misuse of the NSA and the CIA before his resignation over
Watergate, sets a high standard for court-approved wiretaps on Americans and
resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that
the target of the surveillance is a member of a foreign terrorist organization
or foreign power and is engaged in activities that "may" involve a violation of
criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty
obtaining FISA court-approved wiretaps on dozens of people within the United
States who were communicating with targeted al-Qaida suspects inside the United
States.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740
applications for electronic surveillance or physical searches from five
presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102
applications that were approved over the first 22 years of the court's
operation. In 20 of the first 21 annual reports on the court's activities up to
1999, the Justice Department told Congress that "no orders were entered (by the
FISA court) which modified or denied the requested authority" submitted by the
government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-
ordered surveillance by the Bush administration. A total of 173 of those court-
ordered "substantive modifications" took place in 2003 and 2004 -- the most
recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during
those two years -- the first outright rejection in the court's history.

Attorney General Alberto Gonzales said last week that Bush authorized NSA
surveillance of overseas communications by U.S.-based terror suspects because
the FISA court's approval process was too cumbersome.

The Bush administration, responding to concerns expressed by some judges on the
11-member panel, agreed last week to give them a classified briefing on the
domestic spying program. U.S. District Judge Malcolm Howard, a member of the
panel, told CNN that the Bush administration agreed to brief the judges after
U.S. District Judge James Robertson resigned from the FISA panel, apparently to
protest Bush's spying program.

Bamford, 59, a Vietnam-era Navy veteran, likens the Bush administration's
domestic surveillance without court approval to Nixon-era abuses of intelligence
agencies.

NSA and previous eavesdropping agencies collected duplicates of all
international telegrams to and from the United States for decades during the
Cold War under a program code-named "Shamrock" before the program ended in the
1970s. A program known as "Minaret" tracked 75,000 Americans whose activities
had drawn government interest between 1952 and 1974, including participation in
the anti-war movement during the Vietnam War.

"NSA prides itself on learning the lessons of the 1970s and obeying the legal
restrictions imposed by FISA," Bamford said. "Now it looks like we're going back
to the bad old days again."

*


Boston Globe --

December 23, 2005

WIRETAPS SAID TO SIFT ALL OVERSEAS CONTACTS

By Charlie Savage

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.

© Copyright 2005 Globe Newspaper Company.

*


Boston Globe --

December 20, 2005

BUSH BYPASSED COMPLIANT COURT ON WIRETAPPING
Warrants rarely denied

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2005/12/20/
bush_bypassed_compliant_court_on_wiretapping/

WASHINGTON -- The court that authorizes wiretaps on terrorism suspects had not
rejected a government request for a warrant in its 22-year existence to 2001,
when President Bush issued an order allowing agents to wiretap citizens without
judicial approval.

Bush's actions surprised many lawyers familiar with the court's workings,
because federal law allows the US attorney general to authorize wiretaps without
waiting for a warrant, as long as federal agents later present evidence to a
judge.

Bush and his advisers have argued that the need for rapid monitoring of
international telephone calls involving terrorism suspects had justified his
decision to allow agents to bypass the surveillance law.

The court "doesn't provide the speed and the agility that we need in all
circumstances to deal with this new kind of threat," Attorney General Alberto
Gonzales said yesterday.

But many lawyers familiar with the Foreign Intelligence Surveillance Court, as
the group of judges who secretly authorize national security wiretaps is known,
challenged Gonzales's description of the court procedures as cumbersome. Records
showed that the court had rejected none of more than 11,000 requests for
warrants from 1979 through 2001. Since then, it has rejected just four of more
than 5,200 applications.

"It's a rubber stamp," said Marc Rotenberg, executive director of the Electronic
Privacy Information Center, a think tank that monitors electronic government
surveillance. Given the court's receptiveness to wiretapping, Bush's decision to
disregard the law "is all the more extraordinary," he said.

Gonzales also said yesterday that the Bush administration had considered asking
Congress to give the government more flexibility in quickly planting wiretaps on
international calls, but that it had decided to avoid a political fight that
would draw attention to the domestic spying program.

"We've had discussions with . . . certain members of Congress about whether or
not we could get an amendment to [the surveillance law], and we were advised
that that was not something we could likely get, certainly not without
jeopardizing the existence of the program, and, therefore, killing the program,"
Gonzales said. He did not name any of the legislators who had been consulted.

Critics of the administration have noted that after the 2001 terrorist attacks,
Congress was eager to give the administration almost any counterterrorism tool
it asked for -- including relaxing standards for national security wiretaps.

For example, in the USA Patriot Act, passed in 2001, Congress expanded a program
allowing the attorney general to approve emergency wiretaps without warrants,
giving agents 72 hours to present evidence, rather than 24.

"We have changed aspects of that law at the request of the administration in the
USA Patriot Act to allow for a more aggressive but still lawful defense against
terror," Senator Dianne Feinstein, Democrat of California, said in a Senate
speech on Friday, criticizing Bush's decision to authorize wiretaps on his own.

Congress set up the special electronic surveillance court in 1978 in response to
revelations that former President Richard M. Nixon had used the FBI to spy on
his domestic enemies. The law required the government to obtain a warrant from
the court before it could wiretap a phone line.

The court is composed of federal judges who are appointed by the Supreme Court's
chief justice to oversee wiretap requests on an ongoing basis.

A single judge can authorize a wiretap if the FBI shows evidence that there is
probable cause to believe that a target is affiliated with a foreign power.
Originally the main targets were Soviet spies, but in recent years much of the
focus has shifted to Al Qaeda members.

If FBI agents wanted to tap a telephone line as part of a national security
investigation, they would give a government lawyer information about the suspect
-- such as where the phone number came from and how the target might be linked
to a foreign power.

Lawyers may reject applications before taking them to a judge, but such
occurrences are rare, according to those familiar with the process.

General Michael V. Hayden, the former director of the National Security Agency,
which oversees Bush's secret wiretapping program, defended the administration's
bypassing of the court yesterday, arguing that the court's procedures were
inefficient.

Agents must move quickly when they come across phone numbers or e-mail addresses
associated with Al Qaeda, he said.

"The whole key here is agility," said Hayden, who is now Bush's deputy director
of national intelligence. He said that following the surveillance law "involves
marshaling arguments [and] looping paperwork around, even in the case of
emergency authorizations from the attorney general."

But Michael Woods, who served as chief of the national security law unit at the
Federal Bureau of Investigation from 1997 to 2002, said yesterday that while
wiretap requests for routine investigations can take weeks for approval, wiretap
orders for urgent investigations can be obtained within hours. Sometimes agents
even go to the judges' homes in the middle of the night, he said.

"This process can be done very quickly," Woods said. "If this is seen as a very
hot thing, it can be pushed through in days, or even hours.

"And," Woods added in his statement, "on top of that there is the provision that
says that if it's a real emergency, the attorney general can authorize the
surveillance verbally, and then you have 72 hours to get everything in front of
a judge."

As national security specialists tried to understand why the administration had
felt a need to sidestep the surveillance law, members of Congress continued to
boil over the revelation that Bush believes he has the legal authority to do so.

There were signs that the dispute could spill over into next month's Supreme
Court confirmation hearings for Judge Samuel A. Alito Jr.

Alito, a former Reagan administration lawyer, has advocated a strong view of
presidential power.

Senators Arlen Specter of Pennsylvania and Patrick J. Leahy of Vermont, the GOP
chairman and the ranking Democrat on the Judiciary Committee, each sent letters
to Alito yesterday.

In the letters, both senators warned that his views on the limits of executive
power in wartime will be a focus of his hearing.

"Do you agree with Justice O'Connor's statement that 'war is not a blank check
for the president?' " Specter wrote.

"In light of Justice O'Connor's statement, what jurisprudential theory would you
invoke to evaluate the limits on the president's authority to conduct
surveillance on US citizens without going through the court system?"

Also yesterday, Senator John D. Rockefeller IV of West Virginia, the top
Democrat on the Senate Select Committee on Intelligence, released a copy of a
letter he had sent to Vice President Dick Cheney in July 2003, after Cheney had
briefed him on the outlines of the spying program. Rockefeller was not allowed
to talk about the program. In the letter, Rockefeller had said that Congress was
unable to conduct "meaningful oversight" of the program, including whether it
was legal.

© Copyright 2005 Globe Newspaper Company

*


New York Times --

December 17, 2005
BEHIND POWER, ONE PRINCIPLE AS BUSH PUSHES PREROGATIVES
By Scott Shane

http://www.nytimes.com/2005/12/17/politics/17legal.html

WASHINGTON, Dec. 16 - A single, fiercely debated legal principle lies behind
nearly every major initiative in the Bush administration's war on terror,
scholars say: the sweeping assertion of the powers of the presidency.
Bush Lets U.S. Spy on Callers Without Courts (December 16, 2005)

From the government's detention of Americans as "enemy combatants" to the just-
disclosed eavesdropping in the United States without court warrants, the
administration has relied on an unusually expansive interpretation of the
president's authority. That stance has given the administration leeway for
decisive action, but it has come under severe criticism from some scholars and
the courts.

With the strong support of Vice President Dick Cheney, legal theorists in the
White House and Justice Department have argued that previous presidents
unjustifiably gave up some of the legitimate power of their office. The attacks
of Sept. 11, 2001, made it especially critical that the full power of the
executive be restored and exercised, they said.

The administration's legal experts, including David S. Addington, the vice
president's former counsel and now his chief of staff, and John C. Yoo, deputy
assistant attorney general in the Office of Legal Counsel of the Justice
Department from 2001 to 2003, have pointed to several sources of presidential
authority.

The bedrock source is Article 2 of the Constitution, which describes the
"executive power" of the president, including his authority as commander in
chief of the armed forces. Several landmark court decisions have elaborated the
extent of the powers.

Another key recent document cited by the administration is the joint resolution
passed by Congress on Sept. 14, 2001, authorizing the president to "use all
necessary and appropriate force" against those responsible for Sept. 11 in order
to prevent further attacks.

Mr. Yoo, who is believed to have helped write a legal justification for the
National Security Agency's secret domestic eavesdropping, first laid out the
basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute
passed by Congress "can place any limits on the president's determinations as to
any terrorist threat, the amount of military force to be used in response, or
the method, timing and nature of the response."

That became the underlying justification for numerous actions apart from the
eavesdropping program, disclosed by The New York Times on Thursday night. Those
include the order to try accused terrorists before military tribunals; the
detention of so-called enemy combatants at Guantánamo Bay, Cuba, and in secret
overseas jails operated by the Central Intelligence Agency; the holding of two
Americans, Jose Padilla and Yaser Esam Hamdi, as enemy combatants; and the use
of severe interrogation techniques, including some banned by international
agreements, on Al Qaeda figures.

Mr. Yoo, now a law professor at the University of California, Berkeley, declined
to comment for this article. But Bradford A. Berenson, who served as associate
counsel to President Bush from 2001 to 2003, explained the logic behind the
assertion of executive power.

"After 9/11 the president felt it was incumbent on him to use every ounce of
authority available to him to protect the American people," Mr. Berenson said.

He said he was not familiar with the N.S.A. program, in which the intelligence
agency, without warrants, has monitored international telephone calls and
international e-mail messages of people inside the United States. He said that
he could not comment on whether the program was justified, but that he believed
intelligence gathering on an enemy was clearly part of the president's
constitutional war powers.

"Any program like this would have been very carefully analyzed by administration
lawyers," Mr. Berenson said. "It's easy, now that four years have passed without
another attack, to forget the sense of urgency that pervaded the country when
the ruins of the World Trade Center were still smoking."

But some legal experts outside the administration, including some who served
previously in the intelligence agencies, said the administration had pushed the
presidential-powers argument beyond what was legally justified or prudent. They
say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's
assertion of his powers.

"Obviously we have to do things differently because of the terrorist threat,"
said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the
Central Intelligence Agency, who served under both Republican and Democratic
administrations. "But to do it without the participation of the Congress and the
courts is unwise in the extreme."

Even if the administration believes the president has the authority to direct
warrantless eavesdropping, she said, ordering it without seeking Congressional
approval was politically wrongheaded. "We're just relearning the lessons of
Vietnam and Watergate," said Ms. Parker, now dean of the University of the
Pacific McGeorge School of Law.

Jeffrey H. Smith, who served as C.I.A. general counsel in 1995 and 1996, said he
was dismayed by the N.S.A. program, which he said was the latest instance of
legal overreach by the administration.

"Clearly the president felt after 9/11 that he needed more powers than his
predecessors had exercised," Mr. Smith said. "He chose to assert as much power
as he thought he needed. Now the question is whether that was wise and
consistent with our values."

William C. Banks, a widely respected authority on national security law at
Syracuse University, said the N.S.A. revelation came as a shock, even given the
administration's past assertions of presidential powers.

"I was frankly astonished by the story," he said. "My head is spinning."

Professor Banks said the president's power as commander in chief "is really
limited to situations involving military force - anything needed to repel an
attack. I don't think the commander in chief power allows" the warrantless
eavesdropping, he said.

Mr. Berenson, the former White House associate counsel, said that in rare cases,
the presidents' advisers may decide that an existing law violates the
Constitution "by invading the president's executive powers as commander in
chief."

The Foreign Intelligence Surveillance Act of 1978 typically requires warrants
for the kind of eavesdropping carried out under the special N.S.A. program.
Whether administration lawyers argued that that statute unconstitutionally
infringed the president's powers is not known.

But Mr. Smith, formerly of the C.I.A., noted that when President Carter signed
the act into law in 1978, he seemed to rule out any domestic eavesdropping
without court approval.

"The bill requires, for the first time, a prior judicial warrant for all
electronic surveillance for foreign intelligence or counterintelligence purposes
in the United States" if an American's communications might be intercepted,
President Carter said when he signed the act.

By asserting excessive powers, Mr. Smith said, President Bush may provoke a
reaction from Congress and the courts that ultimately thwarts executive power.

"The president may wind up eroding the very powers he was seeking to exert," Mr.
Smith said.

*


New York Times --

December 16, 2005
BUSH LETS U.S. SPY ON CALLERS WITHOUT COURTS
By James Risen and Eric Lichtblau

http://www.nytimes.com/2005/12/16/politics/16program.html

WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly
authorized the National Security Agency to eavesdrop on Americans and others
inside the United States to search for evidence of terrorist activity without
the court-approved warrants ordinarily required for domestic spying, according
to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored
the international telephone calls and international e-mail messages of hundreds,
perhaps thousands, of people inside the United States without warrants over the
past three years in an effort to track possible "dirty numbers" linked to Al
Qaeda, the officials said. The agency, they said, still seeks warrants to
monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the
country without court approval was a major shift in American intelligence-
gathering practices, particularly for the National Security Agency, whose
mission is to spy on communications abroad. As a result, some officials familiar
with the continuing operation have questioned whether the surveillance has
stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in
national security law. "It's almost a mainstay of this country that the N.S.A.
only does foreign searches."

Nearly a dozen current and former officials, who were granted anonymity because
of the classified nature of the program, discussed it with reporters for The New
York Times because of their concerns about the operation's legality and
oversight.

According to those officials and others, reservations about aspects of the
program have also been expressed by Senator John D. Rockefeller IV, the West
Virginia Democrat who is the vice chairman of the Senate Intelligence Committee,
and a judge presiding over a secret court that oversees intelligence matters.
Some of the questions about the agency's new powers led the administration to
temporarily suspend the operation last year and impose more restrictions, the
officials said.

The Bush administration views the operation as necessary so that the agency can
move quickly to monitor communications that may disclose threats to the United
States, the officials said. Defenders of the program say it has been a critical
tool in helping disrupt terrorist plots and prevent attacks inside the United
States.

Administration officials are confident that existing safeguards are sufficient
to protect the privacy and civil liberties of Americans, the officials say. In
some cases, they said, the Justice Department eventually seeks warrants if it
wants to expand the eavesdropping to include communications confined within the
United States. The officials said the administration had briefed Congressional
leaders about the program and notified the judge in charge of the Foreign
Intelligence Surveillance Court, the secret Washington court that deals with
national security issues.

The White House asked The New York Times not to publish this article, arguing
that it could jeopardize continuing investigations and alert would-be terrorists
that they might be under scrutiny. After meeting with senior administration
officials to hear their concerns, the newspaper delayed publication for a year
to conduct additional reporting. Some information that administration officials
argued could be useful to terrorists has been omitted.

Dealing With a New Threat

While many details about the program remain secret, officials familiar with it
say the N.S.A. eavesdrops without warrants on up to 500 people in the United
States at any given time. The list changes as some names are added and others
dropped, so the number monitored in this country may have reached into the
thousands since the program began, several officials said. Overseas, about 5,000
to 7,000 people suspected of terrorist ties are monitored at one time, according
to those officials.

Several officials said the eavesdropping program had helped uncover a plot by
Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003
to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with
blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb
attacks on British pubs and train stations, was exposed last year in part
through the program, the officials said. But they said most people targeted for
N.S.A. monitoring have never been charged with a crime, including an Iranian-
American doctor in the South who came under suspicion because of what one
official described as dubious ties to Osama bin Laden.

The eavesdropping program grew out of concerns after the Sept. 11 attacks that
the nation's intelligence agencies were not poised to deal effectively with the
new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic
restrictions better suited to peacetime than war, according to officials. In
response, President Bush significantly eased limits on American intelligence and
law enforcement agencies and the military.

But some of the administration's antiterrorism initiatives have provoked an
outcry from members of Congress, watchdog groups, immigrants and others who
argue that the measures erode protections for civil liberties and intrude on
Americans' privacy.

Opponents have challenged provisions of the USA Patriot Act, the focus of
contentious debate on Capitol Hill this week, that expand domestic surveillance
by giving the Federal Bureau of Investigation more power to collect information
like library lending lists or Internet use. Military and F.B.I. officials have
drawn criticism for monitoring what were largely peaceful antiwar protests. The
Pentagon and the Department of Homeland Security were forced to retreat on plans
to use public and private databases to hunt for possible terrorists. And last
year, the Supreme Court rejected the administration's claim that those labeled
"enemy combatants" were not entitled to judicial review of their open-ended
detention.

Mr. Bush's executive order allowing some warrantless eavesdropping on those
inside the United States - including American citizens, permanent legal
residents, tourists and other foreigners - is based on classified legal opinions
that assert that the president has broad powers to order such searches, derived
in part from the September 2001 Congressional resolution authorizing him to wage
war on Al Qaeda and other terrorist groups, according to the officials familiar
with the N.S.A. operation.

The National Security Agency, which is based at Fort Meade, Md., is the nation's
largest and most secretive intelligence agency, so intent on remaining out of
public view that it has long been nicknamed "No Such Agency." It breaks codes
and maintains listening posts around the world to eavesdrop on foreign
governments, diplomats and trade negotiators as well as drug lords and
terrorists. But the agency ordinarily operates under tight restrictions on any
spying on Americans, even if they are overseas, or disseminating information
about them.

What the agency calls a "special collection program" began soon after the Sept.
11 attacks, as it looked for new tools to attack terrorism. The program
accelerated in early 2002 after the Central Intelligence Agency started
capturing top Qaeda operatives overseas, including Abu Zubaydah, who was
arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers,
cellphones and personal phone directories, said the officials familiar with the
program. The N.S.A. surveillance was intended to exploit those numbers and
addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and
from the Qaeda figures, the N.S.A. began monitoring others linked to them,
creating an expanding chain. While most of the numbers and addresses were
overseas, hundreds were in the United States, the officials said.

Under the agency's longstanding rules, the N.S.A. can target for interception
phone calls or e-mail messages on foreign soil, even if the recipients of those
communications are in the United States. Usually, though, the government can
only target phones and e-mail messages in the United States by first obtaining a
court order from the Foreign Intelligence Surveillance Court, which holds its
closed sessions at the Justice Department.

Traditionally, the F.B.I., not the N.S.A., seeks such warrants and conducts most
domestic eavesdropping. Until the new program began, the N.S.A. typically
limited its domestic surveillance to foreign embassies and missions in
Washington, New York and other cities, and obtained court orders to do so.

Since 2002, the agency has been conducting some warrantless eavesdropping on
people in the United States who are linked, even if indirectly, to suspected
terrorists through the chain of phone numbers and e-mail addresses, according to
several officials who know of the operation. Under the special program, the
agency monitors their international communications, the officials said. The
agency, for example, can target phone calls from someone in New York to someone
in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic
communications, those officials say, meaning that calls from that New Yorker to
someone in California could not be monitored without first going to the Federal
Intelligence Surveillance Court.

A White House Briefing

After the special program started, Congressional leaders from both political
parties were brought to Vice President Dick Cheney's office in the White House.
The leaders, who included the chairmen and ranking members of the Senate and
House intelligence committees, learned of the N.S.A. operation from Mr. Cheney,
Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's director
and is now a full general and the principal deputy director of national
intelligence, and George J. Tenet, then the director of the C.I.A., officials
said.

It is not clear how much the members of Congress were told about the
presidential order and the eavesdropping program. Some of them declined to
comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership
roles on the intelligence committees, officials familiar with the program said.
After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who
became vice chairman of the Senate Intelligence Committee that year, wrote a
letter to Mr. Cheney expressing concerns about the program, officials
knowledgeable about the letter said. It could not be determined if he received a
reply. Mr. Rockefeller declined to comment. Aside from the Congressional
leaders, only a small group of people, including several cabinet members and
officials at the N.S.A., the C.I.A. and the Justice Department, know of the
program.

Some officials familiar with it say they consider warrantless eavesdropping
inside the United States to be unlawful and possibly unconstitutional, amounting
to an improper search. One government official involved in the operation said he
privately complained to a Congressional official about his doubts about the
program's legality. But nothing came of his inquiry. "People just looked the
other way because they didn't want to know what was going on," he said.

A senior government official recalled that he was taken aback when he first
learned of the operation. "My first reaction was, 'We're doing what?' " he said.
While he said he eventually felt that adequate safeguards were put in place, he
added that questions about the program's legitimacy were understandable.

Some of those who object to the operation argue that is unnecessary. By getting
warrants through the foreign intelligence court, the N.S.A. and F.B.I. could
eavesdrop on people inside the United States who might be tied to terrorist
groups without skirting longstanding rules, they say.

The standard of proof required to obtain a warrant from the Foreign Intelligence
Surveillance Court is generally considered lower than that required for a
criminal warrant - intelligence officials only have to show probable cause that
someone may be "an agent of a foreign power," which includes international
terrorist groups - and the secret court has turned down only a small number of
requests over the years. In 2004, according to the Justice Department, 1,754
warrants were approved. And the Foreign Intelligence Surveillance Court can
grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently,
the officials said. Those involved in the program also said that the N.S.A.'s
eavesdroppers might need to start monitoring large batches of numbers all at
once, and that it would be impractical to seek permission from the Foreign
Intelligence Surveillance Court first, according to the officials.

The N.S.A. domestic spying operation has stirred such controversy among some
national security officials in part because of the agency's cautious culture and
longstanding rules.

Widespread abuses - including eavesdropping on Vietnam War protesters and civil
rights activists - by American intelligence agencies became public in the 1970's
and led to passage of the Foreign Intelligence Surveillance Act, which imposed
strict limits on intelligence gathering on American soil. Among other things,
the law required search warrants, approved by the secret F.I.S.A. court, for
wiretaps in national security cases. The agency, deeply scarred by the scandals,
adopted additional rules that all but ended domestic spying on its part.

After the Sept. 11 attacks, though, the United States intelligence community was
criticized for being too risk-averse. The National Security Agency was even
cited by the independent 9/11 Commission for adhering to self-imposed rules that
were stricter than those set by federal law.

Concerns and Revisions

Several senior government officials say that when the special operation began,
there were few controls on it and little formal oversight outside the N.S.A. The
agency can choose its eavesdropping targets and does not have to seek approval
from Justice Department or other Bush administration officials. Some agency
officials wanted nothing to do with the program, apparently fearful of
participating in an illegal operation, a former senior Bush administration
official said. Before the 2004 election, the official said, some N.S.A.
personnel worried that the program might come under scrutiny by Congressional or
criminal investigators if Senator John Kerry, the Democratic nominee, was
elected president.

In mid-2004, concerns about the program expressed by national security
officials, government lawyers and a judge prompted the Bush administration to
suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several
officials said. And to provide more guidance, the Justice Department and the
agency expanded and refined a checklist to follow in deciding whether probable
cause existed to start monitoring someone's communications, several officials
said.

A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees
the Federal Intelligence Surveillance Court, helped spur the suspension,
officials said. The judge questioned whether information obtained under the
N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap
warrant requests from the Justice Department, according to senior government
officials. While not knowing all the details of the exchange, several government
lawyers said there appeared to be concerns that the Justice Department, by
trying to shield the existence of the N.S.A. program, was in danger of
misleading the court about the origins of the information cited to justify the
warrants.

One official familiar with the episode said the judge insisted to Justice
Department lawyers at one point that any material gathered under the special
N.S.A. program not be used in seeking wiretap warrants from her court. Judge
Kollar-Kotelly did not return calls for comment.

A related issue arose in a case in which the F.B.I. was monitoring the
communications of a terrorist suspect under a F.I.S.A.-approved warrant, even
though the National Security Agency was already conducting warrantless
eavesdropping.

According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge
plotter, was dropped for a short time because of technical problems. At the
time, senior Justice Department officials worried what would happen if the
N.S.A. picked up information that needed to be presented in court. The
government would then either have to disclose the N.S.A. program or mislead a
criminal court about how it had gotten the information.

Several national security officials say the powers granted the N.S.A. by
President Bush go far beyond the expanded counterterrorism powers granted by
Congress under the USA Patriot Act, which is up for renewal. The House on
Wednesday approved a plan to reauthorize crucial parts of the law. But final
passage has been delayed under the threat of a Senate filibuster because of
concerns from both parties over possible intrusions on Americans' civil
liberties and privacy.

Under the act, law enforcement and intelligence officials are still required to
seek a F.I.S.A. warrant every time they want to eavesdrop within the United
States. A recent agreement reached by Republican leaders and the Bush
administration would modify the standard for F.B.I. wiretap warrants, requiring,
for instance, a description of a specific target. Critics say the bar would
remain too low to prevent abuses.

Bush administration officials argue that the civil liberties concerns are
unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A.
to target Americans. "Nothing could be further from the truth," wrote John Yoo,
a former official in the Justice Department's Office of Legal Counsel, and his
co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo
worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping
program.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski,
Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S.
Mueller III, the director of the F.B.I., "Can the National Security Agency, the
great electronic snooper, spy on the American people?"

"Generally," Mr. Mueller said, "I would say generally, they are not allowed to
spy or to gather information on American citizens."

President Bush did not ask Congress to include provisions for the N.S.A.
domestic surveillance program as part of the Patriot Act and has not sought any
other laws to authorize the operation. Bush administration lawyers argued that
such new laws were unnecessary, because they believed that the Congressional
resolution on the campaign against terrorism provided ample authorization,
officials said.

The Legal Line Shifts

Seeking Congressional approval was also viewed as politically risky because the
proposal would be certain to face intense opposition on civil liberties grounds.
The administration also feared that by publicly disclosing the existence of the
operation, its usefulness in tracking terrorists would end, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they
appear to have followed private discussions among senior administration lawyers
and other officials about the need to pursue aggressive strategies that once may
have been seen as crossing a legal line, according to senior officials who
participated in the discussions.

For example, just days after the Sept. 11, 2001, attacks on New York and the
Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum
that argued that the government might use "electronic surveillance techniques
and equipment that are more powerful and sophisticated than those available to
law enforcement agencies in order to intercept telephonic communications and
observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the
face of devastating terrorist attacks "the government may be justified in taking
measures which in less troubled conditions could be seen as infringements of
individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue
of warrantless wiretaps in national security cases in a little-noticed brief in
an unrelated court case. In that 2002 brief, the government said that "the
Constitution vests in the President inherent authority to conduct warrantless
intelligence surveillance (electronic or otherwise) of foreign powers or their
agents, and Congress cannot by statute extinguish that constitutional
authority."

Administration officials were also encouraged by a November 2002 appeals court
decision in an unrelated matter. The decision by the Foreign Intelligence
Surveillance Court of Review, which sided with the administration in dismantling
a bureaucratic "wall" limiting cooperation between prosecutors and intelligence
officers, cited "the president's inherent constitutional authority to conduct
warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be
grounds "to jettison the Fourth Amendment requirements" protecting the rights of
Americans against undue searches. The dividing line, the court acknowledged, "is
a very difficult one to administer."

[ Barclay Walsh contributed research for this article. ]

*


Pakistan Press International Information Services --

December 13, 2005
GOVERNMENT TOLD TO FILE COMMENTS REGARDING DETENTION OF AL-QA'EDA LEADER

Karachi, December 13 (PPI): Federal law officer Tuesday told Sindh High
Court he has not received definite reply from interior and foreign
ministries so far regarding detention of Al-Qa'eda leader Khalid Sheikh
Mohammad by Pakistani government.

The court was hearing petition filed by sister of Al-Qa'eda leader Khalid
Sheikh Mohammad seeking production of her brother before court contending he
was still detained by federal government agencies. The clarification has
been sought by the court about the detention of petitioner's brother from
concerned authorities.

Petitioner Ms. Marium insisted detenue is still in custody of federal
government and the authorities concerned are not producing him before court
deliberately.

Standing counsel Mehmood Alam Rizvi submitted letters were issued to
concerned ministries for ascertaining the clarification about the detention
of detenue but so far no definite reply have been received and sought time
to submit it before the court. He told court concerned authorities requested
for further time to file statement in this regard.

Petitioner's counsel Ghulam Qadir Jatoi submitted Pakistan's foreign
minister in his reported statement on August 23, 2005, published in
newspapers, admitted that detenue Khalid Sheikh Mohammad was in the custody
of government of Pakistan and he was not handed over to US government.

He said custody of detenue is further proved as military court in Pakistan
has sentenced six Army personnel for having connection with extremists and
one Army Officer Major Adil Qadoosi was convicted as detenue was recovered
from his house in Rawalpindi in February 2003. The detention of petitioner's
relatives was also challenged in the petition.

Petitioner alleged LEA, besides her son Ammar alias Ali Abdul Aziz, an
alleged Al-Qa'eda financier, earlier arrested his brother Khalid Sheikh
Mohammad, two sons in laws Abdul Basit alias Ramzi Yousuf, Abdul Qadir and
nephew Abdul Karim Mehmood alias Abu Moosab Arochi after US invasion on
Afghanistan on suspicion of their links with Al-Qa'eda. SHC's division bench
comprising Justice Ghulam Rabbani and Justice Munib Ahmed Khan told federal
law officer to inform court about the actual position as if detainees were
arrested by law enforcement agencies why they were not produced before any
court of law. The next hearing of case has been adjourned till December 21,
2005.

(c) 2005 Asia Pulse Pty Limited

*


The New York Times --

December 12, 2005
REPORTER RECOUNTS TALK ABOUT CIA LEAK
By David Johnston

A reporter for Time magazine said Sunday that a lawyer for Karl Rove, the senior
White House adviser, was surprised when she suggested to him in the first half
of 2004 that Mr. Rove had probably been a source for the magazine's July 2003
article that discussed the C.I.A. officer at the heart of the leak case.

The reporter, Viveca Novak, wrote in a first-person article published on the
magazine's Web site that she met with Robert D. Luskin, a lawyer for Mr. Rove,
on three occasions in early 2004. She said it was likely in one of these
meetings that she hinted to Mr. Luskin that Mr. Rove had discussed the C.I.A.
officer with a Time colleague, Matthew Cooper.

Ms. Novak's conversation with Mr. Luskin has been under scrutiny by the special
counsel in the leak case, Patrick J. Fitzgerald. In her article, Ms. Novak wrote
that Mr. Fitzgerald sought to question her about the matter after Mr. Luskin
told him of their conversation about Mr. Rove, in the belief that the
information would help his client.

Ms. Novak said that before she spoke with Mr. Fitzgerald on Nov. 10, a
discussion in which she was not under oath, she hired a lawyer, Hank Schuelke.
"I didn't tell anyone at Time," she wrote. "Unrealistically, I hoped this would
turn out to be an insignificant twist in the investigation and also figured that
if people at Time knew about it, it would be difficult to contain the
information, and reporters would pounce on it - as I would have."

After her conversation with Mr. Fitzgerald, Ms. Novak continued to do reporting
on the leak case, including on the involvement of Bob Woodward, a reporter and
editor at The Washington Post. She told her editors about her conversations with
Mr. Fitzgerald on Nov. 20, after he had told her he wanted her to testify under
oath.

Ms. Novak's article was accompanied by an editor's note that said she had taken
a leave of absence. Jim Kelly, Time's managing editor, said in an interview on
Sunday: "I'm taking this seriously. I'm upset and she's upset." He said her
article "was full of regret about what happened."

Mr. Kelly suggested that there were several issues of concern to editors, among
them her failure to alert editors in a timely way about her conversation with
Mr. Luskin and her dealings with the prosecutor. Mr. Kelly said he would meet
with Ms. Novak early next year to decide if further steps were warranted.

Ms. Novak's testimony appeared to bring Mr. Fitzgerald close to an end point in
his deliberations about whether to charge Mr. Rove. Mr. Fitzgerald met for the
first time with a new grand jury last week, although it is not known what
evidence, if any, he presented to the panel.

Mr. Rove is the only person known to remain under scrutiny in the leak case. Mr.
Luskin has waged a vigorous behind-the-scenes effort to save Mr. Rove from
criminal charges. On Sunday, Mr. Luskin would not discuss the case or his
conversations with Ms. Novak.

Ms. Novak said she was questioned under oath last week about her conversations
with Mr. Luskin and said she felt free to cooperate with the prosecutor because
Mr. Luskin wanted her to testify. In her article, Ms. Novak said she was writing
about her conversation with Mr. Luskin, over his objection, because he had
"unilaterally" gone to the prosecutor to disclose it.

At the time of her 2004 conversation with Mr. Luskin, Ms. Novak wrote, he seemed
surprised when she suggested to him that Mr. Cooper had spoken with Mr. Rove.

In her article, she wrote: "I remember Luskin looking at me and saying something
to the effect of 'Karl doesn't have a Cooper problem. He was not a source for
Matt.'

"I responded instinctively," she recalled in the article, "thinking he was
trying to spin me, and said something like, 'Are you sure about that? That's not
what I hear around Time.'"

"He looked surprised and very serious," she wrote, recalling that Mr. Luskin
said, "There's nothing in the phone logs." It was only later disclosed that Mr.
Cooper's phone call on July 11, 2003, had been transferred to Mr. Rove via a
White House switchboard, which could explain why there was no record of his
call.

Ms. Novak wrote that the conversation with Mr. Luskin had occurred at one of
three meetings anywhere from January 2004 to May 2004, although she believed
that the conversation more likely took place in May.

After her exchange, Ms. Novak recalled, she felt uncomfortable thinking that she
might have inadvertently disclosed information that should have been withheld
from the lawyer.

"I was taken aback that he seemed so surprised," she wrote. "I had been pushing
back against what I thought was his attempt to lead me astray. I hadn't believed
that I was disclosing anything he didn't already know. Maybe this was a feint.
Maybe his client was lying to him. But at any rate, I immediately felt
uncomfortable. I hadn't intended to tip Luskin off to anything. I was supposed
to be the information gatherer."

The prosecutor has focused for months on the accuracy of Mr. Rove's statements
to the grand jury that he forgot about the conversation with Mr. Cooper until
the summer or fall of 2004, when he found an internal White House e-mail message
addressed to Stephen J. Hadley, then the deputy national security adviser, that
confirmed it.

Ms. Novak is not related to Robert D. Novak, the columnist who first disclosed
the name of the Central Intelligence Agency officer in a column on July 14,
2003. Mr. Cooper's article, which relied on Mr. Rove as a source, was published
several days later and also identified the officer, Valerie Wilson, by her
maiden name, Valerie Plame.

Mr. Fitzgerald has been investigating whether there was a deliberate effort to
disclose details about Ms. Wilson and her employment at the C.I.A. as part of an
attempt to distance the administration from Ms. Wilson's husband, Joseph C.
Wilson IV, a former ambassador who had complained about what he said was the
government's misuse of intelligence about Iraq.

So far, Mr. Fitzgerald has brought one indictment, against I. Lewis Libby Jr.,
Vice President Dick Cheney's former chief of staff. Mr. Libby was indicted Oct.
28 on five counts of obstruction of justice and perjury, and immediately
resigned. He has pleaded not guilty.

Even if Mr. Fitzgerald concludes his inquiry involving Mr. Rove, it may not end
the criminal investigation. Mr. Woodward of The Washington Post disclosed last
month that a government official told him about Ms. Wilson in mid-June 2003,
which would make Mr. Woodward the first reporter known to be told about her.

Mr. Woodward wrote that he testified under oath in a deposition to Mr.
Fitzgerald after his source, whom he refused to identify, went to the prosecutor
to disclose the conversation. It is not known what action, if any, Mr.
Fitzgerald intends to take in the matter.

*


TIME --

December 11, 2005
WHAT VIVECA NOVAK TOLD FITZGERALD
By Viveca Novak

It was in the midst of another Washington scandal, almost a decade ago, that I
got to know Bob Luskin. He represented Mark Middleton, a minor figure in the
Democratic campaign-finance scandals of 1996. Luskin kept Middleton out of the
spotlight and never told me much. Still, there is the occasional source with
whom one becomes friendly, and eventually Luskin was in that group.

We'd occasionally meet for a drink - he didn't like having lunch - Cafe Deluxe
on Wisconsin Avenue, near the National Cathedral and on my route home. In
October 2003, as we each made our way through a glass of wine, he asked me what
I was working on. I told him I was trying to get a handle on the Valerie Plame
leak investigation. "Well," he said, "you're sitting next to Karl Rove's
lawyer." I was genuinely surprised, since Luskin's liberal sympathies were no
secret, and here he was representing the man known to many Democrats as the
other side's Evil Genius.

I began spending a little more time than usual with Luskin as I tried to keep
track of the investigation. But how it all bought me a ticket to testify under
oath to special counsel Patrick Fitzgerald still floors me.

The week of Oct. 24, 2005, was Indictment Week - that Friday, the grand jury's
term would expire, and it was expected that Fitzgerald would finish up his probe
by then so he wouldn't have to start working with a new grand jury. It seemed
clear that Scooter Libby, chief of staff to Vice President Dick Cheney, was in
deep trouble, but Rove's status was uncertain. Sometime during that week,
Luskin, who was talking at length with Fitzgerald, phoned me and said he had
disclosed to Fitzgerald the content of a conversation he and I had had at Cafe
Deluxe more than a year earlier and that Fitzgerald might want to talk to me.

Luskin clearly thought that was going to help Rove, perhaps by explaining why
Rove hadn't told Fitzgerald or the grand jury of his conversation with my
colleague Matt Cooper about former Ambassador Joe Wilson's wife until well into
the inquiry. I knew what Matt had been through - the unwanted celebrity, the
speculation unrelated to fact, the dissection of his life and career. I didn't
face the prospect of prison, since Luskin clearly wanted me to tell Fitzgerald
about the incident and thus Luskin was not a source I had to protect, but no
journalist wants to be part of the story.

I clung to Luskin's word might, but the next week he told me Fitzgerald did
indeed want to talk to me, but informally, not under oath. I hired a lawyer,
Hank Schuelke, but I didn't tell anyone at TIME. Unrealistically, I hoped this
would turn out to be an insignificant twist in the investigation and also
figured that if people at TIME knew about it, it would be difficult to contain
the information, and reporters would pounce on it - as I would have.

Fitzgerald and I met in my lawyer's office on Nov. 10 for about two hours.
Schuelke had told him I would discuss only my interactions with Luskin that were
relevant to the conversation in question. No fishing expeditions, no questions
about my other reporting or sources in the case. He agreed, telling my lawyer
that he wanted to "remove the chicken bone without disturbing the body."

He asked how often Luskin and I met during the period from fall 2003 to fall
2004 (about five times), when, where and so forth. I had calendar entries that
helped but weren't entirely reliable. Did I take notes at those meetings? No.
Luskin was more likely to speak freely if he didn't see me committing his words
to paper. Did Luskin ever talk to me about whether Rove was a source for Matt on
the subject of Wilson's wife?

That was the "chicken bone" Fitzgerald had referred to, the conversation Luskin
had told him about that got me dragged into the probe. Here's what happened.
Toward the end of one of our meetings, I remember Luskin looking at me and
saying something to the effect of "Karl doesn't have a Cooper problem. He was
not a source for Matt." I responded instinctively, thinking he was trying to
spin me, and said something like, "Are you sure about that? That's not what I
hear around TIME." He looked surprised and very serious. "There's nothing in the
phone logs," he said. In the course of the investigation, the logs of all Rove's
calls around the July 2003 time period - when two stories, including Matt's,
were published mentioning that Plame was Wilson's wife - had been combed, and
Luskin was telling me there were no references to Matt. (Cooper called via the
White House switchboard, which may be why there is no record.)

I was taken aback that he seemed so surprised. I had been pushing back against
what I thought was his attempt to lead me astray. I hadn't believed that I was
disclosing anything he didn't already know. Maybe this was a feint. Maybe his
client was lying to him. But at any rate, I immediately felt uncomfortable. I
hadn't intended to tip Luskin off to anything. I was supposed to be the
information gatherer. It's true that reporters and sources often trade
information, but that's not what this was about. If I could have a do-over, I
would have kept my mouth shut; since I didn't, I wish I had told my bureau chief
about the exchange. Luskin walked me to my car and said something like, "Thank
you. This is important."

Fitzgerald wanted to know when this conversation occurred. At that point I had
found calendar entries showing that Luskin and I had met in January and in May.
Since I couldn't remember exactly how the conversation had developed, I wasn't
sure. I guessed it was more likely May.

As my meeting with Fitzgerald wrapped up, I asked what would happen next. He
said he would consider whether he needed to interview me again under oath, but
that if he did, he wouldn't require me to appear before the grand jury. I hoped
that would be the end of it. But on Friday, Nov. 18 - when I was on deadline,
writing, ironically, about Washington Post reporter Bob Woodward's newly
discovered role in the investigation - my lawyer called and told me Fitzgerald
did indeed want me under oath. I realized that I now needed to share this
information with Jay Carney, our Washington bureau chief. On Sunday, Nov. 20, I
drove over to his house to tell him. He then called Jim Kelly, the managing
editor. Nobody was happy about it, least of all me.

A new meeting with Fitzgerald was arranged for Dec. 8. Leaks about my role began
appearing in the papers, some of them closer to the mark than others. They all
made me feel physically ill. Fitzgerald had asked that I check a couple of dates
in my calendar for meetings with Luskin. One of them, March 1, 2004, checked
out. I hadn't found that one in my first search because I had erroneously
entered it as occurring at 5 a.m., not 5 p.m.

When Fitzgerald and I met last Thursday, along with another lawyer from his
team, my attorney, a lawyer from Time Inc. and the court reporter, he was more
focused. The problem with the new March date was that now I was even more
confused - previously I had to try to remember if the key conversation had
occurred in January or May, and I thought it was more likely May. But March was
close enough to May that I really didn't know. "I don't remember" is an answer
that prosecutors are used to hearing, but I was mortified about how little I
could recall of what occurred when.

This meeting lasted about an hour and a half. As before, Fitzgerald was
extremely pleasant, very professional, and he stuck to his pledge not to wander
with his questions. Does what I remembered - or more often, didn't remember - of
my interactions with Luskin matter? Will it make the difference between whether
Rove gets indicted or not? I have no idea. I didn't find out until this fall
that, according to Luskin, my remark led him to do an intensive search for
evidence that Rove and Matt had talked. That's how Luskin says he found the e-
mail Rove wrote to Stephen Hadley at the National Security Council right after
his conversation with Matt, saying that Matt had called about welfare reform but
then switched to the subject of Iraq's alleged attempt to buy uranium yellowcake
in Niger. According to Luskin, he turned the e-mail over to Fitzgerald when he
found it, leading Rove to acknowledge before the grand jury in October 2004 that
he had indeed spoken with Cooper.

One final note: Luskin is unhappy that I decided to write about our
conversation, but I feel that he violated any understanding to keep our talk
confidential by unilaterally going to Fitzgerald and telling him what was said.
And, of course, anyone who testifies under oath for a grand jury (my sworn
statement will be presented to the grand jury by Fitzgerald) is free to discuss
that testimony afterward.

*


The White House --

December 5, 2005
PRESS GAGGLE BY SCOTT MCCLELLAN [excerpt]

http://www.whitehouse.gov/news/releases/2005/12/20051205-2.html

[...]

Q: This morning, Rice talked at Andrews -- I don't know if you know what she
said.

McCLELLAN: Yes.

Q: Okay.

McCLELLAN: I'm aware of her statement. Well aware of her statement.

Q: She said that --

McCLELLAN: That was something that was part of an interagency process, in
responding --

Q: -- that the intelligence agency is getting some information from a small
number of dangerous detainees that have prevented terrorist attacks, both in
Europe and in the United States. Can you shed any more light on that? Can you
give us any more detail on that?

McCLELLAN: Well, I think we've talked about some in the past, but I think you
can understand why it's important, then -- she talked about this in her remarks
-- that we don't get into discussing intelligence matters of that nature. We're
engaged in an ongoing war on terrorism. We face a very dangerous and ruthless
enemy, as she talked about in her remarks, and we have a responsibility to do
everything that is lawful within our power to protect the American people. And
there are a lot of sensitive issues surrounding the war on terrorism, and
talking about intelligence matters could compromise ongoing operations, and we
don't want to do anything like that.

Q: Like more than one country in Europe?

McCLELLAN: Well, I think I just -- what do you mean by, "more than one country"?

Q: She was talking about terrorist attacks being prevented in Europe, so we're
talking about more than one country, is it several countries?

McCLELLAN: I'm not going to -- if the intelligence community wants to talk
further about it, I'll let them. But I think we've talked about some of the
plots that have been disrupted in the past. But in terms of talking about
specific intelligence that we get from people that have been captured on the
battlefield, I think it's best that we don't -- and she talked about that in her
statement -- because it could compromise things in the ongoing war on terrorism.
And I think the American people understand that.

Q: She also said that whatever the United States did, that the European counties
had cooperated. By saying that, doesn't that just inflame the rift?

McCLELLAN: I think what she said, was she talked about how we have and will
continue to respect the sovereignty of other nations. The issue here really to
focus on is, what are we doing to protect our citizens. That's the highest
responsibility of any government. And that's how we have to look at this. We are
engaged in a different kind of war against a different kind of enemy, and we
have to be able to adapt in order to face that enemy. And each country has to
make their own choices. And she emphasized that in her remarks. But we all
should do what we can to work together in order to prevail in this war on
terrorism and defeat the terrorists.

Q: Sharing the blame with Europe then, it sounds as if she's --

McCLELLAN: Sharing the blame? I'm not sure what you're referring to. We are
acting to protect the American people and working with other countries to
protect their citizens, as well. This is a global war on terrorism. We have seen
terrorists attack throughout the world, and this is an ongoing battle. This is a
very dangerous enemy. And we all -- all of us in government, around the world,
have a responsibility to do what we can to protect our citizens.

[...]

*


US Department of State --

December 5, 2005
REMARKS UPON HER DEPARTURE FOR EUROPE
Secretary Condoleezza Rice

http://www.state.gov/secretary/rm/2005/57602.htm

Andrews Air Force Base (7:15 a.m. EST)

Good morning. We have received inquiries from the European Union, the Council of
Europe, and from several individual countries about media reports concerning
U.S. conduct in the war on terror. I am going to respond now to those inquiries,
as I depart today for Europe. And this will also essentially form the text of
the letter that I will send to Secretary Straw, who wrote on behalf of the
European Union as the European Union President.

The United States and many other countries are waging a war against terrorism.
For our country this war often takes the form of conventional military
operations in places like Afghanistan and Iraq. Sometimes this is a political
struggle, a war of ideas. It is a struggle waged also by our law enforcement
agencies. Often we engage the enemy through the cooperation of our intelligence
services with their foreign counterparts.

We must track down terrorists who seek refuge in areas where governments cannot
take effective action, including where the terrorists cannot in practice be
reached by the ordinary processes of law. In such places terrorists have planned
the killings of thousands of innocents -- in New York City or Nairobi, in Bali
or London, in Madrid or Beslan, in Casablanca or Istanbul. Just two weeks ago I
also visited a hotel ballroom in Amman, viewing the silent, shattered aftermath
of one of those attacks.

The United States, and those countries that share the commitment to defend their
citizens, will use every lawful weapon to defeat these terrorists. Protecting
citizens is the first and oldest duty of any government. Sometimes these efforts
are misunderstood. I want to help all of you understand the hard choices
involved, and some of the responsibilities that go with them.

One of the difficult issues in this new kind of conflict is what to do with
captured individuals who we know or believe to be terrorists. The individuals
come from many countries and are often captured far from their original homes.
Among them are those who are effectively stateless, owing allegiance only to the
extremist cause of transnational terrorism. Many are extremely dangerous. And
some have information that may save lives, perhaps even thousands of lives.

The captured terrorists of the 21st century do not fit easily into traditional
systems of criminal or military justice, which were designed for different
needs. We have to adapt. Other governments are now also facing this challenge.

We consider the captured members of al-Qaida and its affiliates to be unlawful
combatants who may be held, in accordance with the law of war, to keep them from
killing innocents. We must treat them in accordance with our laws, which reflect
the values of the American people. We must question them to gather potentially
significant, life-saving, intelligence. We must bring terrorists to justice
wherever possible.

For decades, the United States and other countries have used "renditions" to
transport terrorist suspects from the country where they were captured to their
home country or to other countries where they can be questioned, held, or
brought to justice.

In some situations a terrorist suspect can be extradited according to
traditional judicial procedures. But there have long been many other cases
where, for some reason, the local government cannot detain or prosecute a
suspect, and traditional extradition is not a good option. In those cases the
local government can make the sovereign choice to cooperate in a rendition. Such
renditions are permissible under international law and are consistent with the
responsibilities of those governments to protect their citizens.

Rendition is a vital tool in combating transnational terrorism. Its use is not
unique to the United States, or to the current administration. Last year, then
Director of Central Intelligence George Tenet recalled that our earlier
counterterrorism successes included "the rendition of many dozens of terrorists
prior to September 11, 2001."

-- Ramzi Youssef masterminded the 1993 bombing of the World Trade Center and
plotted to blow up airlines over the Pacific Ocean, killing a Japanese airline
passenger in a test of one of his bombs. Once tracked down, a rendition brought
him to the United States, where he now serves a life sentence.

-- One of history’s most infamous terrorists, best known as "Carlos the Jackal,"
had participated in murders in Europe and the Middle East. He was finally
captured in Sudan in 1994. A rendition by the French government brought him to
justice in France, where he is now imprisoned. Indeed, the European Commission
of Human Rights rejected Carlos’ claim that his rendition from Sudan was
unlawful.

Renditions take terrorists out of action, and save lives.

In conducting such renditions, it is the policy of the United States, and I
presume of any other democracies who use this procedure, to comply with its laws
and comply with its treaty obligations, including those under the Convention
Against Torture. Torture is a term that is defined by law. We rely on our law to
govern our operations. The United States does not permit, tolerate, or condone
torture under any circumstances. Moreover, in accordance with the policy of this
administration:

-- The United States has respected -- and will continue to respect -- the
sovereignty of other countries.

-- The United States does not transport, and has not transported, detainees from
one country to another for the purpose of interrogation using torture.

-- The United States does not use the airspace or the airports of any country
for the purpose of transporting a detainee to a country where he or she will be
tortured.

-- The United States has not transported anyone, and will not transport anyone,
to a country when we believe he will be tortured. Where appropriate, the United
States seeks assurances that transferred persons will not be tortured.

International law allows a state to detain enemy combatants for the duration of
hostilities. Detainees may only be held for an extended period if the
intelligence or other evidence against them has been carefully evaluated and
supports a determination that detention is lawful. The U.S. does not seek to
hold anyone for a period beyond what is necessary to evaluate the intelligence
or other evidence against them, prevent further acts of terrorism, or hold them
for legal proceedings.

With respect to detainees, the United States Government complies with its
Constitution, its laws, and its treaty obligations. Acts of physical or mental
torture are expressly prohibited. The United States Government does not
authorize or condone torture of detainees. Torture, and conspiracy to commit
torture, are crimes under U.S. law, wherever they may occur in the world.

Violations of these and other detention standards have been investigated and
punished. There have been cases of unlawful treatment of detainees, such as the
abuse of a detainee by an intelligence agency contractor in Afghanistan or the
horrible mistreatment of some prisoners at Abu Ghraib that sickened us all and
which arose under the different legal framework that applies to armed conflict
in Iraq. In such casesthe United States has vigorously investigated, and where
appropriate, prosecuted and punished those responsible. Some individuals have
already been sentenced to lengthy terms in prison; others have been demoted or
reprimanded.

As CIA Director Goss recently stated, our intelligence agencies have handled the
gathering of intelligence from a very small number of extremely dangerous
detainees, including the individuals who planned the 9/11 attacks in the United
States, the attack on the U.S.S. Cole, and many other murders and attempted
murders. It is the policy of the United States that this questioning is to be
conducted within U.S. law and treaty obligations, without using torture. It is
also U.S. policy that authorized interrogation will be consistent with U.S.
obligations under the Convention Against Torture, which prohibit cruel, inhuman,
or degrading treatment. The intelligence so gathered has stopped terrorist
attacks and saved innocent lives -- in Europe as well as in the United States
and other countries. The United States has fully respected the sovereignty of
other countries that cooperate in these matters.

Because this war on terrorism challenges traditional norms and precedents of
previous conflicts, our citizens have been discussing and debating the proper
legal standards that should apply. President Bush is working with the U.S.
Congress to come up with good solutions. I want to emphasize a few key points.

-- The United States is a country of laws. My colleagues and I have sworn to
support and defend the Constitution of the United States. We believe in the rule
of law.

-- The United States Government must protect its citizens. We and our friends
around the world have the responsibility to work together in finding practical
ways to defend ourselves against ruthless enemies. And these terrorists are some
of the most ruthless enemies we face.

-- We cannot discuss information that would compromise the success of
intelligence, law enforcement, and military operations. We expect that other
nations share this view.

Some governments choose to cooperate with the United States in intelligence, law
enforcement, or military matters. That cooperation is a two-way street. We share
intelligence that has helped protect European countries from attack, helping
save European lives.

It is up to those governments and their citizens to decide if they wish to work
with us to prevent terrorist attacks against their own country or other
countries, and decide how much sensitive information they can make public. They
have a sovereign right to make that choice.

Debate in and among democracies is natural and healthy. I hope that that debate
also includes a healthy regard for the responsibilities of governments to
protect their citizens.

Four years after September 11, most of our populations are asking us if we are
doing all that we can to protect them. I know what it is like to face an inquiry
into whether everything was done that could have been done. So now, before the
next attack, we should all consider the hard choices that democratic governments
must face. And we can all best meet this danger if we work together.

Thank you.

2005/1130 (FINAL)

Released on December 5, 2005

* * *


Washington Post --

December 5, 2005

TRANSCRIPT: SECRETARY OF STATE RICE'S REMARKS
PRIOR TO DEPARTING FOR EUROPEAN TRIP

Courtesy FDCH/e-Media

http://www.washingtonpost.com/wp-
dyn/content/article/2005/12/05/AR2005120500462.html

(JOINED IN PROGRESS)

RICE: ... also visited a hotel ballroom in Amman, viewing the silent, shattered
aftermath of one of those attacks.

The United States and those countries that share the commitment to defend their
citizens will use every lawful weapon to defeat these terrorists. Protecting
citizens is the first and oldest duty of any government.

Sometimes these efforts are misunderstood. I want to help all of you understand
the hard choices involved and some of the responsibilities that go with them.

One of the difficult issues in this new kind of conflict is what to do with
captured individuals who we know or believe to be terrorists. The individuals
come from many countries and are often captured far from their original homes.
Among them are those who are effectively stateless, owing allegiance only to the
extremist cause of transnational terrorism. Many are extremely dangerous. And
some have information that may save lives, perhaps even thousands of lives.

The captured terrorists of the 21st century do not fit easily into traditional
systems of criminal or military justice, which were designed for different
needs. We have to adapt. Other governments are now also facing this challenge.

We consider the captured members of Al Qaida and its affiliates to be unlawful
combatants who may be held, in accordance with the law of war, to keep them from
killing innocents. We must treat them in accordance with our laws, which reflect
the values of the American people. We must question them to gather potentially
significant, life-saving, intelligence. We must bring terrorists to justice
wherever possible.

For decades, the United States and other countries have used "renditions" to
transport terrorist suspects from the country where they were captured to their
home country or to other countries where they can be questioned, held, or
brought to justice.

In some situations a terrorist suspect can be extradited according to
traditional judicial procedures. But there have long been many other cases
where, for some reason, the local government cannot detain or prosecute a
suspect, and traditional extradition is not a good option. In those cases the
local government can make the sovereign choice to cooperate in a rendition. Such
renditions are permissible under international law and are consistent with the
responsibilities of those governments to protect their citizens.

Rendition is a vital tool in combating transnational terrorism. Its use is not
unique to the United States, or to the current administration. Last year, then-
Director of Central Intelligence George Tenet recalled that our earlier
counterterrorism successes included "the rendition of many dozens of terrorists
prior to September 11, 2001."

Ramzi Youssef masterminded the 1993 bombing of the World Trade Center and
plotted to blow up airlines over the Pacific Ocean, killing a Japanese airline
passenger in a test of one of his bombs. Once tracked down, a rendition brought
him to the United States, where he now serves a life sentence.

One of history's most infamous terrorists, best known as "Carlos the Jackal,"
had participated in murders in Europe and the Middle East. He was finally
captured in Sudan in 1994. A rendition by the French government brought him to
justice in France, where he is now imprisoned. Indeed, the European Commission
of Human Rights rejected Carlos' claim that his rendition from Sudan was
unlawful.

Renditions take terrorists out of action, and save lives.

In conducting such renditions, it is the policy of the United States, and I
presume of any other democracies who use this procedure, to comply with its laws
and comply with its treaty obligations, including those under the Convention
Against Torture. Torture is a term that is defined by law. We rely on our law to
govern our operations. The United States does not permit, tolerate, or condone
torture under any circumstances. Moreover, in accordance with the policy of this
administration:

The United States has respected -- and will continue to respect -- the
sovereignty of other countries.

The United States does not transport, and has not transported, detainees from
one country to another for the purpose of interrogation using torture.

The United States does not use the airspace or the airports of any country for
the purpose of transporting a detainee to a country where he or she will be
tortured.

The United States has not transported anyone, and will not transport anyone, to
a country when we believe he will be tortured. Where appropriate, the United
States seeks assurances that transferred persons will not be tortured.

International law allows a state to detain enemy combatants for the duration of
hostilities. Detainees may only be held for an extended period if the
intelligence or other evidence against them has been carefully evaluated and
supports a determination that detention is lawful. The U.S. does not seek to
hold anyone for a period beyond what is necessary to evaluate the intelligence
or other evidence against them, prevent further acts of terrorism, or hold them
for legal proceedings.

With respect to detainees, the United States Government complies with its
Constitution, its laws, and its treaty obligations. Acts of physical or mental
torture are expressly prohibited. The United States Government does not
authorize or condone torture of detainees. Torture, and conspiracy to commit
torture, are crimes under U.S. law, wherever they may occur in the world.

Violations of these and other detention standards have been investigated and
punished. There have been cases of unlawful treatment of detainees, such as the
abuse of a detainee by an intelligence agency contractor in Afghanistan or the
horrible mistreatment of some prisoners at Abu Ghraib that sickened us all and
which arose under the different legal framework that applies to armed conflict
in Iraq. In such cases, the United States has vigorously investigated, and where
appropriate, prosecuted and punished those responsible. Some individuals have
already been sentenced to lengthy terms in prison; others have been demoted or
reprimanded.

As CIA Director Goss recently stated, our intelligence agencies have handled the
gathering of intelligence from a very small number of extremely dangerous
detainees, including the individuals who planned the 9/11 attacks in the United
States, the attack on the USS Cole, and many other murders and attempted
murders. It is the policy of the United States that this questioning is to be
conducted within U.S. law and treaty obligations, without using torture. It is
also U.S. policy that authorized interrogation will be consistent with U.S.
obligations under the Convention Against Torture, which prohibit cruel, inhuman,
or degrading treatment. The intelligence so gathered has stopped terrorist
attacks and saved innocent lives in Europe as well as in the United States and
other countries. The United States has fully respected the sovereignty of other
countries that cooperate in these matters.

Because this war on terrorism challenges traditional norms and precedents of
previous conflicts, our citizens have been discussing and debating the proper
legal standards that should apply. President Bush is working with the U.S.
Congress to come up with good solutions. I want to emphasize a few key points.

The United States is a country of laws. My colleagues and I have sworn to
support and defend the Constitution of the United States. We believe in the rule
of law.

The United States Government must protect its citizens. We and our friends
around the world have the responsibility to work together in finding practical
ways to defend ourselves against ruthless enemies. And these terrorists are some
of the most ruthless enemies we face.

We cannot discuss information that would compromise the success of intelligence,
law enforcement, and military operations. We expect that other nations share
this view.

Some governments choose to cooperate with the United States in intelligence, law
enforcement, or military matters. That cooperation is a two-way street. We share
intelligence that has helped protect European countries from attack, helping
save European lives.

It is up to those governments and their citizens to decide if they wish to work
with us to prevent terrorist attacks against their own country or other
countries, and decide how much sensitive information they can make public. They
have a sovereign right to make that choice.

Debate in and among democracies is natural and healthy. I hope that that debate
also includes a healthy regard for the responsibilities of governments to
protect their citizens.

Four years after September 11, most of our populations are asking us if we are
doing all that we can to protect them. I know what it is like to face an inquiry
into whether everything was done that could have been done. So now, before the
next attack, we should all consider the hard choices that democratic governments
must face. And we can all best meet this danger if we work together.

Thank you.

END

* * *


The White House --

December 2, 2005
PRESS BRIEFING BY SCOTT MC