Saturday, December 24, 2005

NYT: Three takes on the issues raised by revelations of Bully Boy using the NSA for domestic spying

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
[. . .]
This so-called "pattern analysis" on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.
The use of similar data-mining operations by the Bush administration in other contexts has raised strong objections, most notably in connection with the Total Information Awareness system, developed by the Pentagon for tracking terror suspects, and the Department of Homeland Security's Capps program for screening airline passengers. Both programs were ultimately scrapped after public outcries over possible threats to privacy and civil liberties.

The above excerpt is from Eric Lichtblau and James Risen's "Spy Agency Mined Vast Data Trove, Officials Report" in this morning's New York Times. Today they attempt to address the issue of spying, the paper does, from several different perspectives and are far more successful than they were earlier this week. Lichtblau and Risen are breaking news (at least for the Times, I haven't gone through the Washington Post yet this morning and am not taking any phone calls due to a killer headache). Their report is rounded out with two other articles on this topic.

A second one, Richard W. Stevenson's "Congress Never Authorized Spying Effort, Daschle Says," addresses news that broke via the op-ed pages of the Washington Post so the Times is playing catch up. From Stevenson's article:

In an op-ed article published Friday in The Washington Post, Mr. Daschle said he rejected a White House effort three days after the attacks to grant Mr. Bush specific authority to conduct antiterrorism operations within the United States as part of a broader resolution backing the use of force.
In seeking the specific authority for a domestic response, Mr. Daschle said, the White House was effectively acknowledging that the resolution did not cover domestic actions like spying on Americans.
"The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress - but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language," Mr. Daschle said in the article.

Daschle's comments refute the Bully Boy's assertion that the acts passed by Congress immediately following 9/11 gave him the power to utilize the NSA to spy on American citizens.

The third article explores the beliefs of a Court nominee on this topic -- Adam Liptak and David E. Rosenbaum's "Alito Memo in '84 Favored Immunity for Top Officials:"

The attorney general should be immune from lawsuits for ordering wiretaps of Americans without permission from a court, Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote in a memorandum in 1984 as a government lawyer in the Reagan administration.
The memorandum, released yesterday by the National Archives, made recommendations concerning a lawsuit against former Attorney General John N. Mitchell over a wiretap he had authorized without a court's permission in 1970. The government was investigating a plot to destroy underground utility tunnels in Washington and to kidnap Henry A. Kissinger, the national security adviser.

Did your mouth drop? Mine too. Outside of Jill St. John, was anyone interested in Henry Kissinger in the seventies? (That was a joke a house guest wanted put in.)

Back to the article:

In his 1984 memorandum, Judge Alito urged his superiors to await a different legal vehicle, presumably one not tied to the abuses of the Nixon administration, to make the argument that top officials were free to violate the law.
"Our chances of persuading the court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era," he wrote.
In the end, the superiors rejected his advice to appeal on just a procedural question. As predicted, the Supreme Court rejected the argument that Mr. Mitchell should have absolute immunity.

So the Alito hearings might be very interesting. It's been argued before (by many people, in many forums) that Bully Boy's choice of nominees (especially Harriet Miers) is based solely on whether or not they will cover his ass from the bench. Apparently, Alito's a good prospect for providing cover. (Though once on the bench, some justices have proven surprisingly independent -- lifetime appointments can cure the need to suck up.)

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