BILL MOYERS: Welcome to the Journal.
I once asked a reporter back from Vietnam: “Who’s telling the truth over there?”
“Everyone,” he said. “Everyone sees what’s happening through the lens of their own experience.”
That’s how people see Jeremiah Wright.
In my conversation with him and in his dramatic public appearances since, he revealed himself to be far more complex than the sound bites that propelled him onto the public stage.
More than 2,000 people have written me about him, and their opinions vary widely. Some sting: “Jeremiah Wright is nothing more than a race-hustling, American-hating radical,” one of my viewers wrote. Another called him a “nut case.”
Many more were sympathetic to him. Many asked for some rational explanation for Wright’s transition from reasonable conversation to the shocking anger they saw at the National Press Club.
A psychologist might pull back some of the layers and see this complicated man more clearly, but I’m not a psychologist.
Many black preachers I’ve known—scholarly, smart, and gentle in person—uncorked fire and brimstone in the pulpit. Of course, I’ve known many white preachers like that, too.
But where I grew up in the South, before the civil rights movement, the pulpit was a safe place for black men to express anger for which they would have been punished anywhere else. A safe place for the fierce thunder of dignity denied, justice delayed.
I think I would have been angry if my ancestors had been transported thousands of miles in the hellish hole of a slave ship, then sold at auction, humiliated, whipped, and lynched.
Or if my great-great-great grandfather had been but three-fifths of a person in a Constitution that proclaimed: “We, the people.”
Or if my own parents had been subjected to the racial vitriol of Jim Crow, Strom Thurmond, Bull Conner, and Jesse Helms.
Even so, the anger of black preachers I’ve known and heard and reported on was, for them, very personal and cathartic. That’s not how Jeremiah Wright came across in those sound bites or in his defiant performances since my interview.
What white America is hearing in his most inflammatory words is an attack on the America they cherish and that many of their sons have died for in battle – forgetting that black Americans have fought and bled beside them, and that Wright himself has a record of honored service in the Navy.
Hardly anyone took the “chickens come home to roost” remark to convey the message that intervention in the political battles of other nations is sure to bring retaliation in some form, which is not to justify the particular savagery of 9/11 but to understand that actions have consequences.
My friend Bernard Weisberger, the historian, says, yes, people are understandably seething with indignation over Wright’s absurd charge that the United States deliberately brought an HIV epidemic into being.
But it is a fact, he says, that within living memory the U.S. public health service conducted a study that deliberately deceived black men with syphilis into believing that they were being treated while actually letting them die for the sake of a scientific test.
Does this excuse Wright’s anger? His exaggerations or distortions? You’ll have to decide for yourself, but at least it helps me to understand the why of them.
In this multimedia age the pulpit isn’t only available on Sunday mornings. There’s round the clock media – the beast whose hunger is never satisfied, especially for the fast food with emotional content.
So the preacher starts with rational discussion and after much prodding throws more and more gasoline on the fire that will eventually consume everything it touches. He had help – people who, for their own reasons, set out to conflate the man in the pulpit who wasn’t running for president with the man in the pew who was.
Behold the double standard: John McCain sought out the endorsement of John Hagee, the war-mongering, Catholic-bashing Texas preacher, who said the people of New Orleans got what they deserved for their sins.
But no one suggests McCain shares Hagee’s delusions or thinks AIDS is God’s punishment for homosexuality. Pat Robertson called for the assassination of a foreign head of state and asked God to remove Supreme Court justices, yet he remains a force in the Republican religious right.
After 9/11, Jerry Falwell said the attack was God’s judgment on America for having been driven out of our schools and the public square, but when McCain goes after the endorsement of the preacher he once condemned as an agent of intolerance, the press gives him a pass.
Jon Stewart recently played tape from the Nixon White House in which Billy Graham talks in the Oval Office about how he has friends who are Jewish, but he knows in his heart that they are undermining America.
This is crazy and wrong -- white preachers are given leeway in politics that others aren’t.
Which means it is all about race, isn’t it?
Wright’s offensive opinions and inflammatory appearances are judged differently. He doesn’t fire a shot in anger, put a noose around anyone’s neck, call for insurrection, or plant a bomb in a church with children in Sunday school.
What he does is to speak his mind in a language and style that unsettles some people, and says some things so outlandish and ill-advised that he finally leaves Obama no choice but to end their friendship.
We’re often exposed to the corroding acid of the politics of personal destruction, but I’ve never seen anything like this – this wrenching break between pastor and parishioner played out right in front of our eyes.
Both men no doubt will carry the grief to their graves. All the rest of us should hang our heads in shame for letting it come to this in America, where the gluttony of the non-stop media grinder consumes us all and prevents an honest conversation on race.
It is the price we are paying for failing to heed the great historian Jacob Burckhardt, who said, “beware the terrible simplifiers.”
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Essay on Reverend Wright: 'Beware the Terrible Simplifiers'
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As many of you know, over the last few months I have been thinking hard about my plans for 2008. Running for the presidency is a profound decision - a decision no one should make on the basis of media hype or personal ambition alone - and so before I committed myself and my family to this race, I wanted to be sure that this was right for us and, more importantly, right for the country.
I certainly didn't expect to find myself in this position a year ago. But as I've spoken to many of you in my travels across the states these past months; as I've read your emails and read your letters; I've been struck by how hungry we all are for a different kind of politics.
So I've spent some time thinking about how I could best advance the cause of change and progress that we so desperately need.
The decisions that have been made in Washington these past six years, and the problems that have been ignored, have put our country in a precarious place. Our economy is changing rapidly, and that means profound changes for working people. Many of you have shared with me your stories about skyrocketing health care bills, the pensions you've lost and your struggles to pay for college for your kids. Our continued dependence on oil has put our security and our very planet at risk. And we're still mired in a tragic and costly war that should have never been waged.
But challenging as they are, it's not the magnitude of our problems that concerns me the most. It's the smallness of our politics. America's faced big problems before. But today, our leaders in Washington seem incapable of working together in a practical, common sense way. Politics has become so bitter and partisan, so gummed up by money and influence, that we can't tackle the big problems that demand solutions.
And that's what we have to change first.
We have to change our politics, and come together around our common interests and concerns as Americans.
This won't happen by itself. A change in our politics can only come from you; from people across our country who believe there's a better way and are willing to work for it.
Years ago, as a community organizer in Chicago, I learned that meaningful change always begins at the grassroots, and that engaged citizens working together can accomplish extraordinary things.
So even in the midst of the enormous challenges we face today, I have great faith and hope about the future - because I believe in you.
And that's why I wanted to tell you first that I'll be filing papers today to create a presidential exploratory committee. For the next several weeks, I am going to talk with people from around the country, listening and learning more about the challenges we face as a nation, the opportunities that lie before us, and the role that a presidential campaign might play in bringing our country together. And on February 10th, at the end of these decisions and in my home state of Illinois, I'll share my plans with my friends, neighbors and fellow Americans.
In the meantime, I want to thank all of you for your time, your suggestions, your encouragement and your prayers. And I look forward to continuing our conversation in the weeks and months to come.
Sincerely,
U.S. Senator Barack Obama
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U.S. Senator Barack Obama
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]]>South Dakota became the first U.S. state to pass a law banning abortion in virtually all cases, with the intention of forcing the Supreme Court to reconsider its 1973 decision legalizing the procedure.
The law, which would punish doctors who perform the operation with a five-year prison term and a $5,000 fine, awaits the signature of Republican Gov. Michael Rounds and people on both sides of the issue say he is unlikely to veto it.
"My understanding is we are the first state to truly defy Roe v. Wade," the 1973 high court ruling that granted a constitutional right to abortion, said Kate Looby of Planned Parenthood's South Dakota chapter.
State legislatures in Ohio, Indiana, Georgia, Tennessee and Kentucky also have introduced similar measures this year, but South Dakota's legislative calendar means its law is likely to be enacted first.
"We hope (Rounds) recognizes this for what it is: a political tool and not about the health and safety of the women of South Dakota," Looby said.
"If he chooses to sign it, we will be filing a lawsuit in short order to block it," she said after attending the afternoon debate at the state capital in Pierre.
Proponents have said the law was designed for just such a court challenge.
The timing is right, supporters say, given the recent appointments of Chief Justice John Roberts and Justice Samuel Alito to the high court. The two conservatives could pave the way to a decision overturning Roe v. Wade.
The high court said on Tuesday it will rule on whether the federal government can ban some abortion procedures, a case that could reveal whether the court reshaped by President George W. Bush will restrict abortion rights.
In 1992, the Supreme Court reaffirmed the right to abortion in Planned Parenthood v. Casey, the last direct challenge to Roe v. Wade.
The South Dakota law concludes that life begins at conception based on medical advances over the past three decades.
Proposed amendments to the law to create exceptions to specifically protect the health of the mother, or in cases of rape or incest, were voted down. Also defeated was an amendment to put the proposal in the hands of voters.
The bill as written does make an exception if the fetus dies during a doctor's attempt to save the mother's life.
Planned Parenthood operates the sole clinic in South Dakota where roughly 800 abortions are performed each year by doctors from neighboring Minnesota, Looby said.
Two years ago, Rounds vetoed a similar bill, saying it would wipe out existing restrictions on abortion while it was fought in the courts. A rewritten bill lost narrowly in the state Senate.
Some legislators opposed to abortion rights questioned whether it was premature to challenge Roe v. Wade, and said litigation would prove expensive for the sparsely populated state. An anonymous donor has offered $1 million to the state to defray the costs of litigation.
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In a seven-year-old secret program at the National Archives, intelligence agencies have been removing from public access thousands of historical documents that were available for years, including some already published by the State Department and others photocopied years ago by private historians.
The restoration of classified status to more than 55,000 previously declassified pages began in 1999, when the Central Intelligence Agency and five other agencies objected to what they saw as a hasty release of sensitive information after a 1995 declassification order signed by President Bill Clinton. It accelerated after the Bush administration took office and especially after the 2001 terrorist attacks, according to archives records.
But because the reclassification program is itself shrouded in secrecy--governed by a still-classified memorandum that prohibits the National Archives even from saying which agencies are involved--it continued virtually without outside notice until December. That was when an intelligence historian, Matthew M. Aid, noticed that dozens of documents he had copied years ago had been withdrawn from the archives' open shelves.
Mr. Aid was struck by what seemed to him the innocuous contents of the documents--mostly decades-old State Department reports from the Korean War and the early cold war. He found that eight reclassified documents had been previously published in the State Department's history series, "Foreign Relations of the United States."
"The stuff they pulled should never have been removed," he said. "Some of it is mundane, and some of it is outright ridiculous."
After Mr. Aid and other historians complained, the archives' Information Security Oversight Office, which oversees government classification, began an audit of the reclassification program, said J. William Leonard, director of the office.
Mr. Leonard said he ordered the audit after reviewing 16 withdrawn documents and concluding that none should be secret.
"If those sample records were removed because somebody thought they were classified, I'm shocked and disappointed," Mr. Leonard said in an interview. "It just boggles the mind."
If Mr. Leonard finds that documents are being wrongly reclassified, his office could not unilaterally release them. But as the chief adviser to the White House on classification, he could urge a reversal or a revision of the reclassification program.
A group of historians, including representatives of the National Coalition for History and the Society of Historians of American Foreign Relations, wrote to Mr. Leonard on Friday to express concern about the reclassification program, which they believe has blocked access to some material at the presidential libraries as well as at the archives.
Among the 50 withdrawn documents that Mr. Aid found in his own files is a 1948 memorandum on a C.I.A. scheme to float balloons over countries behind the Iron Curtain and drop propaganda leaflets. It was reclassified in 2001 even though it had been published by the State Department in 1996.
Another historian, William Burr, found a dozen documents he had copied years ago whose reclassification he considers "silly," including a 1962 telegram from George F. Kennan, then ambassador to Yugoslavia, containing an English translation of a Belgrade newspaper article on China's nuclear weapons program.
Under existing guidelines, government documents are supposed to be declassified after 25 years unless there is particular reason to keep them secret. While some of the choices made by the security reviewers at the archives are baffling, others seem guided by an old bureaucratic reflex: to cover up embarrassments, even if they occurred a half-century ago.
One reclassified document in Mr. Aid's files, for instance, gives the C.I.A.'s assessment on Oct. 12, 1950, that Chinese intervention in the Korean War was "not probable in 1950." Just two weeks later, on Oct. 27, some 300,000 Chinese troops crossed into Korea.
Mr. Aid said he believed that because of the reclassification program, some of the contents of his 22 file cabinets might technically place him in violation of the Espionage Act, a circumstance that could be shared by scores of other historians. But no effort has been made to retrieve copies of reclassified documents, and it is not clear how they all could even be located.
"It doesn't make sense to create a category of documents that are classified but that everyone already has," said Meredith Fuchs, general counsel of the National Security Archive, an independent non-governmental research institute and library located at the George Washington University's Gelman Library in Washington, D.C. "These documents were on open shelves for years."
Mr. Aid's reclassified documents and his account of the secret program "Declassification in Reverse" can be found in the Electronic Briefing Books section of the National Security Archive's Web site.
The program's critics do not question the notion that wrongly declassified material should be withdrawn. Mr. Aid said he had been dismayed to see "scary" documents in open files at the National Archives, including detailed instructions on the use of high explosives.
But the historians say the program is removing material that can do no conceivable harm to national security. They say it is part of a marked trend toward greater secrecy under the Bush administration, which has increased the pace of classifying documents, slowed declassification and discouraged the release of some material under the Freedom of Information Act.
Experts on government secrecy believe the C.I.A. and other spy agencies, not the White House, are the driving force behind the reclassification program.
"I think it's driven by the individual agencies, which have bureaucratic sensitivities to protect," said Steven Aftergood of the Federation of American Scientists, editor of the online weekly Secrecy News. "But it was clearly encouraged by the administration's overall embrace of secrecy."
National Archives officials said the program had revoked access to 9,500 documents, more than 8,000 of them since President Bush took office. About 30 reviewers--employees and contractors of the intelligence and defense agencies--are at work each weekday at the archives complex in College Park, Md., the officials said.
Archives officials could not provide a cost for the program but said it was certainly in the millions of dollars, including more than $1 million to build and equip a secure room where the reviewers work.
Michael J. Kurtz, assistant archivist for record services, said the National Archives sought to expand public access to documents whenever possible but had no power over the reclassifications. "The decisions agencies make are those agencies' decisions," Mr. Kurtz said.
Though the National Archives are not allowed to reveal which agencies are involved in the reclassification, one archivist said on condition of anonymity that the C.I.A. and the Defense Intelligence Agency were major participants.
A spokesman for the C.I.A., Paul Gimigliano, said that the agency had released 26 million pages of documents to the National Archives since 1998 and that it was "committed to the highest quality process" for deciding what should be secret.
"Though the process typically works well, there will always be the anomaly, given the tremendous amount of material and multiple players involved," Mr. Gimigliano said.
A spokesman for the Defense Intelligence Agency said he was unable to comment on whether his agency was involved in the program.
Anna K. Nelson, a foreign policy historian at American University, said she and other researchers had been puzzled in recent years by the number of documents pulled from the archives with little explanation.
"I think this is a travesty," said Dr. Nelson, who said she believed that some reclassified material was in her files. "I think the public is being deprived of what history is really about: facts."
The document removals have not been reported to the Information Security Oversight Office, as the law has required for formal reclassifications since 2003.
The explanation, said Mr. Leonard, the head of the office, is a bureaucratic quirk. The intelligence agencies take the position that the reclassified documents were never properly declassified, even though they were reviewed, stamped "declassified," freely given to researchers and even published, he said.
Thus, the agencies argue, the documents remain classified--and pulling them from public access is not really reclassification.
Mr. Leonard said he believed that while that logic might seem strained, the agencies were technically correct. But he said the complaints about the secret program, which prompted his decision to conduct an audit, showed that the government's system for deciding what should be secret is deeply flawed.
"This is not a very efficient way of doing business," Mr. Leonard said. "There's got to be a better way."
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Prophet Muhammad Cartoons
]]>Centrism is the sleeping giant of American politics. Alas, it is unlikely to wake up for some time.
Six months ago Jon Stewart, America's reigning philosopher-comedian, did everyone a favour by taking aim at "Crossfire". "Crossfire" pioneered the televised shoutfest in which complex political debates are reduced to slanging matches between left and right. Mr Stewart seized the opportunity of an appearance on the programme to accuse his hosts of being "partisan hacks" and ask them to "stop hurting America". The powers-that-be at CNN agreed with the comedian—and decided to cancel, or at least completely rejig, the show after years of decline.
Many Americans, listening in the past few weeks to Tom DeLay ranting against the judiciary, or to Teddy Kennedy accusing George Bush of planning to "turn the American dream into a nightmare" for old folk, must have wished for a Jon Stewart moment. The most striking fact about American politics is the disjunction between the opinions of ordinary Americans and the behaviour of the political elites. Most Americans have fairly centrist views on everything from multilateralism to abortion. They like to think of themselves as "moderate" and "non-judgmental". More people identify themselves as independents (39%, according to the Pew Research Centre for the People & the Press) than as Democrats (31%) or Republicans (30%).
Yet centrism is a waning force in the corridors of power. Though John McCain has turned himself into a Washington institution, and Lincoln Chafee, one of the declining band of north-eastern Republicans, has hinted that he may oppose John Bolton's nomination as ambassador to the United Nations, in general the Senate is moving slowly but inexorably in the same direction as the House: towards partisan hackery.
It is hard to imagine John Breaux, who made a distinguished career out of cutting deals, or Daniel Patrick Moynihan, who defied ideological stereotypes, prospering in today's Senate. Look at poor Joe Lieberman. Mr Lieberman has taken a centrist position on everything from Iraq to Social Security reform. His reward—apart from a kiss from George Bush after the state-of-the-union address—has been humiliation during his presidential run and a "Dump Joe" movement in his native Connecticut.
Many articulate centrists believe that their creed is the sleeping giant of American politics. They point out that frustration with the status quo is rising. They note that Bill Clinton revived a dying Democratic Party with an infusion of centrism. And they argue that America's most pressing problems usually require solutions that mix a dose of liberalism (such as tax increases) with a dose of conservatism (such as more individual choice).
Yet there is little reason to think that the giant will soon awaken. Too many powerful people want to keep it sedated. The Republicans have gone from one triumph to another by embracing sunbelt radicalism rather than preppie moderation. Today the party controls not only Washington, but the whole political agenda. Every battle is fought on Republican turf. Taxes? The debate is not over how much to raise them to close the looming deficit but how to cut them. Life? The issue isn't how to prevent school shootings such as the one that took nine lives in Minnesota, but about Terri Schiavo.
Why don't the congressional Democrats respond to this devastating assault by trying to occupy the middle ground? After all, there is no shortage of great centrist causes to rally round, notably Social Security reform and immigration reform. But the incentive to take up these issues is declining. A growing proportion of Democrats come from deep-blue congressional districts where it is more important to pander to the liberal base than to reach across the isles. And the Republicans are doing everything they can to render the middle ground uninhabitable. The Texas Republican Party deliberately used redistricting to terminate the political careers of some prominent "Blue Dog" Democrats. Congressional Republicans prefer to pass legislation without any Democratic support whatsoever, thereby making it easier to brand the Democrats as liberal obstructionists. The result is that the Democrats are becoming a pure opposition party.
So is there really no chance of a Jon Stewart moment? Centrists pin their hopes on three things. The first is a dramatic revolt against the system, led by either a third-party candidate or a charismatic maverick like Mr McCain. But third-party eruptions are usually short-lived, and Mr McCain served as a loyal lieutenant in Mr Bush's re-election campaign. The second hope is redistricting reform. Revolt is growing—particularly in the west—against the institutionalised gerrymandering that hands power to the political extremes. But this will take years, if not decades, to change the balance of power.
The most realistic hope lies in the presidential wing of the Democratic Party. The Democrats have more of an incentive to move to the centre in presidential races than the Republicans, for the simple reason that there are fewer liberals than conservatives. Hence Hillary Clinton's determined attempts to rebrand herself as a hawk on defence and a moderate on abortion. But she will have a harder time moving her party to the centre than her husband did. Most of the party's energy these days comes from angry liberals who believe that the 2004 election was a close-run thing, and would have turned out differently if the party had only stuck to its principles. And even if Mrs Clinton can reposition the party for the election, it may soon revert to type. Eight years of Clintonism did remarkably little to shift its centre of gravity.
The problem for even the most charismatic centrists is that they are pushing against profound political forces. American parties were once loose coalitions of interest groups and regional blocks, which left plenty of room for centrists to cut cross-party deals. Today these parties are ideological clubs, playing to voters' values as much as their interests. The great "Crossfire" show that is American politics is set to run and run.
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For decades, U.S. presidents have spoken poetically about the spread of democracy as a tenet and moral obligation of American foreign policy. But despite the seductiveness of this mantra, international relations are a complicated balancing act. Successive U.S. governments have cited "political stability" to justify their dealings with despots in Central America, military dictators in Africa and absolute monarchs in the Middle East.
With the insurgencies still raging in Iraq and political unrest fomenting in other Arab nations, the question remains whether democracy is the long-term solution to regional conflict and the spread of terror. To address this issue, the Council on Foreign Relations (CFR), a nongovernmental think tank, put together a team of experts, co-chaired by former U.S. secretary of State Madeleine K. Albright. Their conclusions were outlined in the recently released report "In Support of Arab Democracy: Why and How." Newsweek's Karen Fragala Smith discussed the group's findings with Albright. Excerpts:
Karen Fragala Smith: Is there a conflict between key democratic rights -- particularly in the area of women's rights -- and the cultural dictates of Islam?
Madeleine Albright: Islam itself and the Qur'an are not actually antiwoman. [The Prophet] Mohammed was married to a businesswoman. It is more the culture of particular Arab countries and not Islam. And I think that what we all have to do is make clear that women's rights do not undermine anybody's system. It's a matter of empowering women, so that societies are actually more stable, not less stable.
Karen Fragala Smith: How does the Abu Ghraib abuse scandal, as well as recent allegations that top military leadership sanctioned the use of torture in interrogations, affect the United States' credibility on human rights issues in Arab countries?
Madeleine Albright: It's hurt U.S. credibility beyond measure. It has lost us the moral high ground, and I am very troubled by it. The only way to restore our credibility is for there to be accountability of those who had something to do with it -- not just lower-level military. I was at an event recently where somebody said, "Isn't it great that the Senate voted 99-0 against torture?" and I said, "Isn't it amazing that we actually have to have a vote like that?"
Karen Fragala Smith: The report states that "democracy cannot be imposed from the outside," and that "sudden, traumatic change is neither necessary nor desirable." How does this apply to Iraq?
Madeleine Albright: Imposing democracy is an oxymoron. You have to be there in order to assist the process, but not at the point of a gun. I think it has misrepresented to a lot of people about how democracy comes about. I'm chairman of the board of the National Democratic Institute, and we work very hard on what I call the nuts and bolts of helping people with democracy. That's very different from invading a country. And I think it has hurt the process immeasurably, because it's now equating democracy with occupation.
Karen Fragala Smith: What will it take for Iraq to make the next step from holding basic elections to a full-fledged independent democratic state?
Madeleine Albright: It's very hard for people to exercise their democratic rights anywhere when they are terrified and there are suicide bombings and a general sense of chaos. Also, when the economic situation is so dire. So everything goes together. There has to be an improvement in the security situation, the reconstruction efforts have to be such that they provide people with jobs and [a] sense of the future and then democracy can flourish. While people did turn out to vote, which I think is quite remarkable, it's very difficult when the situation in the security arena is so tenuous.
Karen Fragala Smith: One of the key components of a democracy is a free press, but some Arabic-language media outlets have spread corrosive propaganda against the United States. What can be done here without limiting the free press?
Madeleine Albright: It's hard for us to censor them if we're talking about the need for free press. There has to be the development of other avenues that would allow the people in those countries to get alternative views. Also, Al-Jazeera is opening up in the United States, and I think it doesn't hurt if Americans go on Al-Jazeera so that we can tell our story. We have to make clear that a great deal of it is distortion.
Karen Fragala Smith: Democracy seems impossible if the majority of a given population does not possess at least basic literacy. What did the task force recommend to improve education in Arab countries?
Madeleine Albright: We have said that the Arab educational systems have generally done an inadequate job of preparing students for life in a global economy. Washington can't all of a sudden start teaching Arabs. On the other hand, the U.S. government could have partnerships with Arab, American, European and Asian educational institutions and foundations and help in terms of expanding English-language instruction and promoting scholarships.
Karen Fragala Smith: The report indicated that democracy can "diminish the appeal of extremism and terrorism." But isn't it possible that many Arab voters would choose a theocracy with strict limits on what we would classify as "personal freedoms."
Madeleine Albright: We don't know, that's part of the issue. If you believe that people want to choose the government that will represent them the best, you have to give them that opportunity. But that's the red herring that's put out there. We do not think the status quo in the Arab world is working. So do we think that democracy is worth supporting? Clearly there are issues, and potentially short-term dislocations, but the way that the situation has evolved now, it's not stable at all. Therefore, we came out with the idea that being in support of democracy was something that was in our interest, and obviously in theirs.
Karen Fragala Smith: The report says that "the U.S. has done a poor job of explaining its policies in the region and spreading its message about democracy and reform." In September, President Bush sent Karen Hughes, the recently appointed under secretary of State for public diplomacy, on a listening tour of several Muslim countries. What was she able to accomplish, and what do you think should be the next step?
Madeleine Albright: It was clearly a very first voyage of hers into this arena, but it didn't strike me as a particularly great success. I think it's very important that this post has been filled with somebody of such high rank and visibility, but it's a hard job, and you have to go into societies and have some sensitivity for the various issues.
Karen Fragala Smith: What steps can Washington take toward establishing a peace in the region that both the Israelis and Palestinians can live with?
Madeleine Albright: First of all, the Israeli-Palestinian issue cannot be blamed for everything. What can be done is exactly what Secretary [of State Condoleezza] Rice has finally done, which is to be in the region and spend time with both sides in order to hammer out agreements. The U.S. has to be actively involved in this. But I think it is wrong for anybody to blame everything on the Israeli-Palestinian issue. It's not at the base of every problem throughout the whole region.
Karen Fragala Smith: What is the task force recommendation for U.S. policy regarding Arab states -- such as Dubai in the United Arab Emirates or Morocco -- that are not democracies but are nonetheless, politically stable and relatively free.
Madeleine Albright: Even in those countries, we spoke about the importance of a rule of law, the importance of having political, economic and social change and to keep moving the process forward. Education in those countries is very important, as well as the ability to recognize different views and to have a freer press.
Karen Fragala Smith: Certain Islamist groups such as Hamas in Palestine and Hizbullah in Lebanon are in fact political parties and do provide important services to the people such as food assistance and education. Can these groups be integrated into the legitimate political arena even though they have been involved in terrorist acts in the past and are currently classified by the United States as terrorist organizations?
Madeleine Albright: We can't have terrorist organizations participating, but if there are some Islamist organizations that can give up the use of force and follow the rules, then I think that it's useful to include them in the political process. We should not allow Middle Eastern leaders to use national security as an excuse to suppress nonviolent organizations. And we should support the political participation of any group or party that is committed to abide by the rules and norms of the democratic process.
Karen Fragala Smith: What can the international community do to stimulate economic development in Arab nations given that corruption and isolation have been deterrents to foreign investment in the past?
Madeleine Albright: This is where the whole issue of rule of law is so important. If countries can meet certain criteria then they can be a part of the World Trade Organization, which then provides a set of rules around which everybody has to operate. Nobody is saying any of this is easy, but I think it is important that many of these Arab nations become part of this global economy. We depend on some of them for oil, and these are potential markets, as well, if there is proper investment that then creates jobs, which takes care of the problem of people being disaffected or unemployed.
Karen Fragala Smith: Is democracy in conflict with the United States' best interests in Arab countries? What stance should the U.S. take toward supporting opposition leaders such as Ayman Nour in Egypt?
Madeleine Albright: If we think that stability is in America's best interest and so we are afraid to think about changes in government, then in the long run, there is no stability. There is nothing less stable then a long[-serving] authoritarian government. That doesn't mean that the U.S. should go out and support particular political figures. Some of the political figures might not even want it given our reputation at the moment, but I think that it is important to support a political process. I don't think Americans -- either as NGOs or even in the government -- should be afraid to meet with opposition figures. It doesn't mean that they are supporting them -- they are supporting a process. I've been in discussions about what is it that really is the essence of democracy, and frankly it isn't elections. It is the existence of an opposition party, which means that there is accountability by the ruling party, and always the possibility of the opposition party getting in.
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As the year was drawing to a close, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers.
It was not a shock to learn that shortly after the Sept. 11 attacks, President Bush authorized the National Security Agency to conduct intercepts of international phone calls to and from the United States. The 1978 Foreign Intelligence Surveillance Act permits the government to gather the foreign communications of people in the U.S. -- without a warrant if quick action is important. But the law requires that, within 72 hours, investigators must go to a special secret court for a retroactive warrant.
The USA PATRIOT Act permits some exceptions to its general rules about warrants for wiretaps and searches, including a 15-day exception for searches in time of war. And there may be a controlling legal authority in the Sept. 14, 2001, congressional resolution that authorized the president to go after terrorists and use all necessary and appropriate force. It was not a declaration of war in a constitutional sense, but it may have been close enough for government work.
Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn't last four years.
In that time, Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed.
Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA PATRIOT Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him.
"We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity," said Attorney General Alberto Gonzales. The Department of Justice made a similar assertion as far back as 2002, saying in a legal brief: "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." Gonzales last week declined to declassify relevant legal reviews made by the Department of Justice.
Perhaps they were researched in a Star Chamber? Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.
Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.
Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.
It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.
Some ancillary responsibility, however, must be attached to those members of the House and Senate who were informed, inadequately, about the wiretapping and did nothing to regulate it. Sen. John D. Rockefeller IV, Democrat of West Virginia, told Vice President Dick Cheney in 2003 that he was "unable to fully evaluate, much less endorse these activities." But the senator was so respectful of the administration's injunction of secrecy that he wrote it out in longhand rather than give it to someone to type. Only last week, after the cat was out of the bag, did he do what he should have done in 2003 -- make his misgivings public and demand more information.
Published reports quote sources saying that 14 members of Congress were notified of the wiretapping. If some had misgivings, apparently they were scared of being called names, as the president did last week when he said: "It was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."
Wrong. If we don't discuss the program and the lack of authority for it, we are meeting the enemy -- in the mirror.
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The president was so desperate to kill the New York Times' eavesdropping story, he summoned the paper's editor and publisher to the Oval Office. But it wasn't just out of concern about national security.
Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate -- he made it seem as if those who didn't agree with him wanted to leave us vulnerable to Al Qaeda -- but it will not work. We're seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.
No wonder Bush was so desperate that the New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on Dec. 6, Bush summoned New York Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The New York Times will not comment on the meeting, but one can only imagine the president's desperation.
The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden's use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists -- in fact, all American Muslims, period -- have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that "the fact that we are discussing this program is helping the enemy." But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a "shameful act," it was the work of a patriot inside the government who was trying to stop a presidential power grab.
No, Bush was desperate to keep the New York Times from running this important story -- which the paper had already inexplicably held for a year -- because he knew that it would reveal him as a law-breaker. He insists he had "legal authority derived from the Constitution and congressional resolution authorizing force." But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing "all necessary force" in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.
What is especially perplexing about this story is that the 1978 law set up a special court to approve eavesdropping in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact. Since 1979, the FISA court has approved tens of thousands of eavesdropping requests and rejected only four. There was no indication the existing system was slow -- as the president seemed to claim in his press conference -- or in any way required extraconstitutional action.
This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.
In the meantime, it is unlikely that Bush will echo President Kennedy in 1961. After JFK managed to tone down a New York Times story by Tad Szulc on the Bay of Pigs invasion, he confided to New York Times editor Turner Catledge that he wished the paper had printed the whole story because it might have spared him such a stunning defeat in Cuba.
This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason -- and less out of genuine concern about national security -- that George W. Bush tried so hard to kill the New York Times story.
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John D. Rockefeller, IV, Vice Chairman
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
July 17, 2003
Vice President Richard B. Cheney
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500Dear Mr. Vice President,
I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, Chairman Roberts and our House Intelligence Committee counterparts.
Clearly, the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. 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.
As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.
Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.
I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.
I appreciate your consideration of my views.
Most respectfully,
Jay Rockefeller
The information he received in the July 17, 2003 briefing was so confidential that Rockefeller actually handwrote the letter to Cheney rather than have it typed out by one of his staffers.
Handwritten letter
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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 represents 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 this country, 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.
While many details about the program remain secret, officials familiar with it said the N.S.A. eavesdropped 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 over the past three years, 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.
Dealing With a New Threat
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, the officials 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 this country 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, Gen. Michael V. Hayden of the Air Force, who was then the agency's director and is now 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 legality of the program. 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.
Culture of Caution and Rules
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.
Several senior government officials say that when the special operation first 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.
The Civil Liberties Question
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.
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, noted "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."
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