oh my god, every time i think bush couldn’t get any stupider, he pulls something like this…
Bush challenges hundreds of laws
President cites powers of his office
By Charlie Savage
April 30, 2006
WASHINGTON — President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.
Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, “whistle-blower” protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.
Legal scholars say the scope and aggression of Bush’s assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty “to take care that the laws be faithfully executed.” Bush, however, has repeatedly declared that he does not need to “execute” a law he believes is unconstitutional.
Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.
But with the disclosure of Bush’s domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.
Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws — many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.
Many legal scholars say they believe that Bush’s theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.
Phillip Cooper, a Portland State University law professor who has studied the executive power claims Bush made during his first term, said Bush and his legal team have spent the past five years quietly working to concentrate ever more governmental power into the White House.
“There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government,” Cooper said. ”This is really big, very expansive, and very significant.”
For the first five years of Bush’s presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act.
Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush’s challenges to the laws he has signed.
Instead, they referred a Globe reporter to their response to questions about Bush’s position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has “been used for several administrations” and that “the president will faithfully execute the law in a manner that is consistent with the Constitution.”
But the words “in a manner that is consistent with the Constitution” are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.
Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation’s sponsors to signing ceremonies at which he lavishes praise upon their work.
Then, after the media and the lawmakers have left the White House, Bush quietly files “signing statements” — official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.
In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills — sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.
“He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises — and more often than not, without the Congress or the press or the public knowing what has happened,” said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.
Many of the laws Bush said he can bypass — including the torture ban — involve the military.
The Constitution grants Congress the power to create armies, to declare war, to make rules for captured enemies, and “to make rules for the government and regulation of the land and naval forces.” But, citing his role as commander in chief, Bush says he can ignore any act of Congress that seeks to regulate the military.
On at least four occasions while Bush has been president, Congress has passed laws forbidding US troops from engaging in combat in Colombia, where the US military is advising the government in its struggle against narcotics-funded Marxist rebels.
After signing each bill, Bush declared in his signing statement that he did not have to obey any of the Colombia restrictions because he is commander in chief.
Bush has also said he can bypass laws requiring him to tell Congress before diverting money from an authorized program in order to start a secret operation, such as the “black sites” where suspected terrorists are secretly imprisoned.
Congress has also twice passed laws forbidding the military from using intelligence that was not “lawfully collected,” including any information on Americans that was gathered in violation of the Fourth Amendment’s protections against unreasonable searches.
Congress first passed this provision in August 2004, when Bush’s warrantless domestic spying program was still a secret, and passed it again after the program’s existence was disclosed in December 2005.
On both occasions, Bush declared in signing statements that only he, as commander in chief, could decide whether such intelligence can be used by the military.
In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a series of new rules and regulations for military prisons. Bush signed the provisions into law, then said he could ignore them all. One provision made clear that military lawyers can give their commanders independent advice on such issues as what would constitute torture. But Bush declared that military lawyers could not contradict his administration’s lawyers.
Other provisions required the Pentagon to retrain military prison guards on the requirements for humane treatment of detainees under the Geneva Conventions, to perform background checks on civilian contractors in Iraq, and to ban such contractors from performing “security, intelligence, law enforcement, and criminal justice functions.” Bush reserved the right to ignore any of the requirements.
The new law also created the position of inspector general for Iraq. But Bush wrote in his signing statement that the inspector “shall refrain” from investigating any intelligence or national security matter, or any crime the Pentagon says it prefers to investigate for itself.
Bush had placed similar limits on an inspector general position created by Congress in November 2003 for the initial stage of the US occupation of Iraq. The earlier law also empowered the inspector to notify Congress if a US official refused to cooperate. Bush said the inspector could not give any information to Congress without permission from the administration.
Many laws Bush has asserted he can bypass involve requirements to give information about government activity to congressional oversight committees.
In December 2004, Congress passed an intelligence bill requiring the Justice Department to tell them how often, and in what situations, the FBI was using special national security wiretaps on US soil. The law also required the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. And it contained 11 other requirements for reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts.
After signing the bill, Bush issued a signing statement saying he could withhold all the information sought by Congress.
Likewise, when Congress passed the law creating the Department of Homeland Security in 2002, it said oversight committees must be given information about vulnerabilities at chemical plants and the screening of checked bags at airports.
It also said Congress must be shown unaltered reports about problems with visa services prepared by a new immigration ombudsman. Bush asserted the right to withhold the information and alter the reports.
On several other occasions, Bush contended he could nullify laws creating “whistle-blower” job protections for federal employees that would stop any attempt to fire them as punishment for telling a member of Congress about possible government wrongdoing.
When Congress passed a massive energy package in August, for example, it strengthened whistle-blower protections for employees at the Department of Energy and the Nuclear Regulatory Commission.
The provision was included because lawmakers feared that Bush appointees were intimidating nuclear specialists so they would not testify about safety issues related to a planned nuclear-waste repository at Yucca Mountain in Nevada — a facility the administration supported, but both Republicans and Democrats from Nevada opposed.
When Bush signed the energy bill, he issued a signing statement declaring that the executive branch could ignore the whistle-blower protections.
Bush’s statement did more than send a threatening message to federal energy specialists inclined to raise concerns with Congress; it also raised the possibility that Bush would not feel bound to obey similar whistle-blower laws that were on the books before he became president. His domestic spying program, for example, violated a surveillance law enacted 23 years before he took office.
David Golove, a New York University law professor who specializes in executive-power issues, said Bush has cast a cloud over “the whole idea that there is a rule of law,” because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.
“Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional,” Golove said.
Defying Supreme Court
Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements. For example, the court has upheld laws creating special prosecutors free of Justice Department oversight and insulating the board of the Federal Trade Commission from political interference.
Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.
In November 2002, for example, Congress, seeking to generate independent statistics about student performance, passed a law setting up an educational research institute to conduct studies and publish reports “without the approval” of the Secretary of Education. Bush, however, decreed that the institute’s director would be “subject to the supervision and direction of the secretary of education.”
Similarly, the Supreme Court has repeatedly upheld affirmative-action programs, as long as they do not include quotas. Most recently, in 2003, the court upheld a race-conscious university admissions program over the strong objections of Bush, who argued that such programs should be struck down as unconstitutional.
Yet despite the court’s rulings, Bush has taken exception at least nine times to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants. Each time, he singled out the provisions, declaring that he would construe them “in a manner consistent with” the Constitution’s guarantee of “equal protection” to all — which some legal scholars say amounts to an argument that the affirmative-action provisions represent reverse discrimination against whites.
Golove said that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court’s precedents, he threatens to “overturn the existing structures of constitutional law.”
A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove said, can make the Constitution simply ”disappear.”
Common practice in ’80s
Though Bush has gone further than any previous president, his actions are not unprecedented.
Since the early 19th century, American presidents have occasionally signed a large bill while declaring that they would not enforce a specific provision they believed was unconstitutional. On rare occasions, historians say, presidents also issued signing statements interpreting a law and explaining any concerns about it.
But it was not until the mid-1980s, midway through the tenure of President Reagan, that it became common for the president to issue signing statements. The change came about after then-Attorney General Edwin Meese decided that signing statements could be used to increase the power of the president.
When interpreting an ambiguous law, courts often look at the statute’s legislative history, debate and testimony, to see what Congress intended it to mean. Meese realized that recording what the president thought the law meant in a signing statement might increase a president’s influence over future court rulings.
Under Meese’s direction in 1986, a young Justice Department lawyer named Samuel A. Alito Jr. wrote a strategy memo about signing statements. It came to light in late 2005, after Bush named Alito to the Supreme Court.
In the memo, Alito predicted that Congress would resent the president’s attempt to grab some of its power by seizing “the last word on questions of interpretation.” He suggested that Reagan’s legal team should “concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress.”
Reagan’s successors continued this practice. George H.W. Bush challenged 232 statutes over four years in office, and Bill Clinton objected to 140 laws over his eight years, according to Kelley, the Miami University of Ohio professor.
Many of the challenges involved longstanding legal ambiguities and points of conflict between the president and Congress.
Throughout the past two decades, for example, each president — including the current one — has objected to provisions requiring him to get permission from a congressional committee before taking action. The Supreme Court made clear in 1983 that only the full Congress can direct the executive branch to do things, but lawmakers have continued writing laws giving congressional committees such a role.
Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions.
But the current President Bush has abandoned the veto entirely, as well as any semblance of the political caution that Alito counseled back in 1986. In just five years, Bush has challenged more than 750 new laws, by far a record for any president, while becoming the first president since Thomas Jefferson to stay so long in office without issuing a veto.
“What we haven’t seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House,” said Kelley, who has studied presidential signing statements through history. “That is what is staggering. The numbers are well out of the norm from any previous administration.”
Some administration defenders say that concerns about Bush’s signing statements are overblown. Bush’s signing statements, they say, should be seen as little more than political chest-thumping by administration lawyers who are dedicated to protecting presidential prerogatives.
Defenders say the fact that Bush is reserving the right to disobey the laws does not necessarily mean he has gone on to disobey them.
Indeed, in some cases, the administration has ended up following laws that Bush said he could bypass. For example, citing his power to ”withhold information” in September 2002, Bush declared that he could ignore a law requiring the State Department to list the number of overseas deaths of US citizens in foreign countries. Nevertheless, the department has still put the list on its website.
Jack Goldsmith, a Harvard Law School professor who until last year oversaw the Justice Department’s Office of Legal Counsel for the administration, said the statements do not change the law; they just let people know how the president is interpreting it.
“Nobody reads them,” said Goldsmith. “They have no significance. Nothing in the world changes by the publication of a signing statement. The statements merely serve as public notice about how the administration is interpreting the law. Criticism of this practice is surprising, since the usual complaint is that the administration is too secretive in its legal interpretations.”
But Cooper, the Portland State University professor who has studied Bush’s first-term signing statements, said the documents are being read closely by one key group of people: the bureaucrats who are charged with implementing new laws.
Lower-level officials will follow the president’s instructions even when his understanding of a law conflicts with the clear intent of Congress, crafting policies that may endure long after Bush leaves office, Cooper said.
“Years down the road, people will not understand why the policy doesn’t look like the legislation,” he said.
And in many cases, critics contend, there is no way to know whether the administration is violating laws — or merely preserving the right to do so.
Many of the laws Bush has challenged involve national security, where it is almost impossible to verify what the government is doing. And since the disclosure of Bush’s domestic spying program, many people have expressed alarm about his sweeping claims of the authority to violate laws.
In January, after the Globe first wrote about Bush’s contention that he could disobey the torture ban, three Republicans who were the bill’s principal sponsors in the Senate — John McCain of Arizona, John W. Warner of Virginia, and Lindsey O. Graham of South Carolina — all publicly rebuked the president.
“We believe the president understands Congress’s intent in passing, by very large majorities, legislation governing the treatment of detainees,” McCain and Warner said in a joint statement. “The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation.”
Added Graham: “I do not believe that any political figure in the country has the ability to set aside any… law of armed conflict that we have adopted or treaties that we have ratified.”
And in March, when the Globe first wrote about Bush’s contention that he could ignore the oversight provisions of the Patriot Act, several Democrats lodged complaints.
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, accused Bush of trying to “cherry-pick the laws he decides he wants to follow.”
And Representatives Jane Harman of California and John Conyers Jr. of Michigan — the ranking Democrats on the House Intelligence and Judiciary committees, respectively — sent a letter to Attorney General Alberto R. Gonzales demanding that Bush rescind his claim and abide by the law.
“Many members who supported the final law did so based upon the guarantee of additional reporting and oversight,” they wrote. “The administration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight…. Once the president signs a bill, he and all of us are bound by it.”
Lack of court review
Such political fallout from Congress is likely to be the only check on Bush’s claims, legal specialists said.
The courts have little chance of reviewing Bush’s assertions, especially in the secret realm of national security matters.
“There can’t be judicial review if nobody knows about it,” said Neil Kinkopf, a Georgia State law professor who was a Justice Department official in the Clinton administration. “And if they avoid judicial review, they avoid having their constitutional theories rebuked.”
Without court involvement, only Congress can check a president who goes too far. But Bush’s fellow Republicans control both chambers, and they have shown limited interest in launching the kind of oversight that could damage their party.
“The president is daring Congress to act against his positions, and they’re not taking action because they don’t want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans,” said Jack Beermann, a Boston University law professor. “Oversight gets much reduced in a situation where the president and Congress are controlled by the same party.”
Said Golove, the New York University law professor: “Bush has essentially said that ‘We’re the executive branch and we’re going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.'”
Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch ”to exercise some self-restraint.” But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time.
“This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy,” Fein said. “There is no way for an independent judiciary to check his assertions of power, and Congress isn’t doing it, either. So this is moving us toward an unlimited executive power.”
the only thing that really surprises me about this is that qwest is turning out to be the best possible option, unlike my previous rants about qwest would seem to have indicated… maybe it’s time i re-examined my bias about them…
NSA has massive database of Americans’ phone calls
By Leslie Cauley
The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.
The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.
For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.
The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.
The sources would talk only under a guarantee of anonymity because the NSA program is secret.
Air Force Gen. Michael Hayden, nominated Monday by President Bush to become the director of the CIA, headed the NSA from March 1999 to April 2005. In that post, Hayden would have overseen the agency’s domestic call-tracking program. Hayden declined to comment about the program.
The NSA’s domestic program, as described by sources, is far more expansive than what the White House has acknowledged. Last year, Bush said he had authorized the NSA to eavesdrop — without warrants — on international calls and international e-mails of people suspected of having links to terrorists when one party to the communication is in the USA. Warrants have also not been used in the NSA’s efforts to create a national call database.
In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. “In other words,” Bush explained, “one end of the communication must be outside the United States.”
As a result, domestic call records — those of calls that originate and terminate within U.S. borders — were believed to be private.
Sources, however, say that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans. Customers’ names, street addresses and other personal information are not being handed over as part of NSA’s domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information.
Don Weber, a senior spokesman for the NSA, declined to discuss the agency’s operations. “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide,” he said. “However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law.”
The White House would not discuss the domestic call-tracking program. “There is no domestic surveillance without court approval,” said Dana Perino, deputy press secretary, referring to actual eavesdropping.
She added that all national intelligence activities undertaken by the federal government “are lawful, necessary and required for the pursuit of al-Qaeda and affiliated terrorists.” All government-sponsored intelligence activities “are carefully reviewed and monitored,” Perino said. She also noted that “all appropriate members of Congress have been briefed on the intelligence efforts of the United States.”
The government is collecting “external” data on domestic phone calls but is not intercepting “internals,” a term for the actual content of the communication, according to a U.S. intelligence official familiar with the program. This kind of data collection from phone companies is not uncommon; it’s been done before, though never on this large a scale, the official said. The data are used for “social network analysis,” the official said, meaning to study how terrorist networks contact each other and how they are tied together.
Carriers uniquely positioned
AT&T recently merged with SBC and kept the AT&T name. Verizon, BellSouth and AT&T are the nation’s three biggest telecommunications companies; they provide local and wireless phone service to more than 200 million customers.
The three carriers control vast networks with the latest communications technologies. They provide an array of services: local and long-distance calling, wireless and high-speed broadband, including video. Their direct access to millions of homes and businesses has them uniquely positioned to help the government keep tabs on the calling habits of Americans.
Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.
Qwest’s refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest. But AT&T and Verizon also provide some services — primarily long-distance and wireless — to people who live in Qwest’s region. Therefore, they can provide the NSA with at least some access in that area.
Created by President Truman in 1952, during the Korean War, the NSA is charged with protecting the United States from foreign security threats. The agency was considered so secret that for years the government refused to even confirm its existence. Government insiders used to joke that NSA stood for “No Such Agency.”
In 1975, a congressional investigation revealed that the NSA had been intercepting, without warrants, international communications for more than 20 years at the behest of the CIA and other agencies. The spy campaign, code-named “Shamrock,” led to the Foreign Intelligence Surveillance Act (FISA), which was designed to protect Americans from illegal eavesdropping.
Enacted in 1978, FISA lays out procedures that the U.S. government must follow to conduct electronic surveillance and physical searches of people believed to be engaged in espionage or international terrorism against the United States. A special court, which has 11 members, is responsible for adjudicating requests under FISA.
Over the years, NSA code-cracking techniques have continued to improve along with technology. The agency today is considered expert in the practice of “data mining” — sifting through reams of information in search of patterns. Data mining is just one of many tools NSA analysts and mathematicians use to crack codes and track international communications.
Paul Butler, a former U.S. prosecutor who specialized in terrorism crimes, said FISA approval generally isn’t necessary for government data-mining operations. “FISA does not prohibit the government from doing data mining,” said Butler, now a partner with the law firm Akin Gump Strauss Hauer & Feld in Washington, D.C.
The caveat, he said, is that “personal identifiers” — such as names, Social Security numbers and street addresses — can’t be included as part of the search. “That requires an additional level of probable cause,” he said.
The usefulness of the NSA’s domestic phone-call database as a counterterrorism tool is unclear. Also unclear is whether the database has been used for other purposes.
The NSA’s domestic program raises legal questions. Historically, AT&T and the regional phone companies have required law enforcement agencies to present a court order before they would even consider turning over a customer’s calling data. Part of that owed to the personality of the old Bell Telephone System, out of which those companies grew.
Ma Bell’s bedrock principle — protection of the customer — guided the company for decades, said Gene Kimmelman, senior public policy director of Consumers Union. “No court order, no customer information — period. That’s how it was for decades,” he said.
The concern for the customer was also based on law: Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers’ calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered.
The financial penalties for violating Section 222, one of many privacy reinforcements that have been added to the law over the years, can be stiff. The Federal Communications Commission, the nation’s top telecommunications regulatory agency, can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of “violation.” In practice, that means a single “violation” could cover one customer or 1 million.
In the case of the NSA’s international call-tracking program, Bush signed an executive order allowing the NSA to engage in eavesdropping without a warrant. The president and his representatives have since argued that an executive order was sufficient for the agency to proceed. Some civil liberties groups, including the American Civil Liberties Union, disagree.
The NSA’s domestic program began soon after the Sept. 11 attacks, according to the sources. Right around that time, they said, NSA representatives approached the nation’s biggest telecommunications companies. The agency made an urgent pitch: National security is at risk, and we need your help to protect the country from attacks.
The agency told the companies that it wanted them to turn over their “call-detail records,” a complete listing of the calling histories of their millions of customers. In addition, the NSA wanted the carriers to provide updates, which would enable the agency to keep tabs on the nation’s calling habits.
The sources said the NSA made clear that it was willing to pay for the cooperation. AT&T, which at the time was headed by C. Michael Armstrong, agreed to help the NSA. So did BellSouth, headed by F. Duane Ackerman; SBC, headed by Ed Whitacre; and Verizon, headed by Ivan Seidenberg.
With that, the NSA’s domestic program began in earnest.
AT&T, when asked about the program, replied with a comment prepared for USA TODAY: “We do not comment on matters of national security, except to say that we only assist law enforcement and government agencies charged with protecting national security in strict accordance with the law.”
In another prepared comment, BellSouth said: “BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority.”
Verizon, the USA’s No. 2 telecommunications company behind AT&T, gave this statement: “We do not comment on national security matters, we act in full compliance with the law and we are committed to safeguarding our customers’ privacy.”
Qwest spokesman Robert Charlton said: “We can’t talk about this. It’s a classified situation.”
In December, The New York Times revealed that Bush had authorized the NSA to wiretap, without warrants, international phone calls and e-mails that travel to or from the USA. The following month, the Electronic Frontier Foundation, a civil liberties group, filed a class-action lawsuit against AT&T. The lawsuit accuses the company of helping the NSA spy on U.S. phone customers.
Last month, U.S. Attorney General Alberto Gonzales alluded to that possibility. Appearing at a House Judiciary Committee hearing, Gonzales was asked whether he thought the White House has the legal authority to monitor domestic traffic without a warrant. Gonzales’ reply: “I wouldn’t rule it out.” His comment marked the first time a Bush appointee publicly asserted that the White House might have that authority.
Similarities in programs
The domestic and international call-tracking programs have things in common, according to the sources. Both are being conducted without warrants and without the approval of the FISA court. The Bush administration has argued that FISA’s procedures are too slow in some cases. Officials, including Gonzales, also make the case that the USA Patriot Act gives them broad authority to protect the safety of the nation’s citizens.
The chairman of the Senate Intelligence Committee, Sen. Pat Roberts, R-Kan., would not confirm the existence of the program. In a statement, he said, “I can say generally, however, that our subcommittee has been fully briefed on all aspects of the Terrorist Surveillance Program. … I remain convinced that the program authorized by the president is lawful and absolutely necessary to protect this nation from future attacks.”
The chairman of the House Intelligence Committee, Rep. Pete Hoekstra, R-Mich., declined to comment.
One company differs
One major telecommunications company declined to participate in the program: Qwest.
According to sources familiar with the events, Qwest’s CEO at the time, Joe Nacchio, was deeply troubled by the NSA’s assertion that Qwest didn’t need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers’ information and how that information might be used.
Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as “product” in intelligence circles — with other intelligence groups. Even so, Qwest’s lawyers were troubled by the expansiveness of the NSA request, the sources said.
The NSA, which needed Qwest’s participation to completely cover the country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest’s patriotic side: In one meeting, an NSA representative suggested that Qwest’s refusal to contribute to the database could compromise national security, one person recalled.
In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.
Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
The NSA’s explanation did little to satisfy Qwest’s lawyers. “They told (Qwest) they didn’t want to do that because FISA might not agree with them,” one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.
In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest’s financial health. But Qwest’s legal questions about the NSA request remained.
Unable to reach agreement, Nacchio’s successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.
Questions and answers about the NSA phone record collection program
Q: Does the NSA’s domestic program mean that my calling records have been secretly collected?
A: In all likelihood, yes. The NSA collected the records of billions of domestic calls. Those include calls from home phones and wireless phones.
Q: Does that mean people listened to my conversations?
A: Eavesdropping is not part of this program.
Q: What was the NSA doing?
A: The NSA collected “call-detail” records. That’s telephone industry lingo for the numbers being dialed. Phone customers’ names, addresses and other personal information are not being collected as part of this program. The agency, however, has the means to assemble that sort of information, if it so chooses.
Q: When did this start?
A: After the Sept. 11 attacks.
Q: Can I find out if my call records were collected?
A: No. The NSA’s work is secret, and the agency won’t publicly discuss its operations.
Q: Why did they do this?
A: The agency won’t say officially. But sources say it was a way to identify, and monitor, people suspected of terrorist activities.
Q: But I’m not calling terrorists. Why do they need my calls?
A: By cross-checking a vast database of phone calling records, NSA experts can try to pick out patterns that help identify people involved in terrorism.
Q: How is this different from the other NSA programs?
A: NSA programs have historically focused on international communications. In December, The New York Times disclosed that President Bush had authorized the NSA to eavesdrop — without warrants — on international phone calls to and from the USA. The call-collecting program is focused on domestic calls, those that originate and terminate within U.S. borders.
Q: Is this legal?
A: That will be a matter of debate. In the past, law enforcement officials had to obtain a court warrant before getting calling records. Telecommunications law assesses hefty fines on phone companies that violate customer privacy by divulging such records without warrants. But in discussing the eavesdropping program last December, Bush said he has the authority to order the NSA to get information without court warrants.
Q: Who has access to my records?
A: Unclear. The NSA routinely provides its analysis and other cryptological work to the Pentagon and other government agencies.
Bush says U.S. not ‘trolling through personal lives’
USA Today reports NSA building massive phone records database
May 11, 2006
WASHINGTON (CNN) — President Bush said Thursday the government is “not mining or trolling through the personal lives of millions of innocent Americans” with a reported program to create a massive database of U.S. phone calls.
“Our efforts are focused on links to al Qaeda and their known affiliates,” Bush said. “The privacy of ordinary Americans is fiercely protected in all our activities.”
Bush’s comments came after USA Today reported Thursday that three telecommunication firms provided the National Security Agency with domestic telephone call records from tens of millions of Americans beginning shortly after the attacks on September 11, 2001.
According to the report, Qwest, a Denver-based telecommunications company, refused to cooperate with the program.
Bush did not specifically mention the newspaper’s report.
In response to the USA Today article, NSA spokesman Don Weber issued a statement saying, “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide.
“However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law.”
The report comes at an awkward time for CIA director nominee Gen. Michael Hayden, whom President Bush named this week to replace Porter Goss as head of the spy agency. Hayden, whose confirmation hearings are to begin next Thursday, headed the NSA from March 1999 to April 2005. Hayden on Thursday met with Sen. Mitch McConnell of Kentucky, the Republican whip, about his nomination.
Afterward, Hayden refused to comment about the report when meeting with reporters but said, “Everything that NSA does is lawful and very carefully done, and the appropriate members of the Congress — both House and Senate — are briefed on all NSA activities.”
The report comes months after the Bush administration came under criticism on Capitol Hill for ordering an NSA surveillance program, that allowed communication to be monitored between people in the United States and terrorism suspects overseas without a court order.
Hayden headed the NSA when the wiretapping program was launched in the immediate aftermath of the September 11 attacks.
Members of Congress expressed concern Thursday about the report. (Watch angry senator say, “Shame on us” — 3:56)
“It’s our government, government of every single American — Republican, Democrat or independent,” said Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee. “… Those entrusted with great power have a duty to answer to Americans what they are doing.”
In the House, Majority Leader Rep. John Boehner, R-Ohio, said, “I’m concerned about what I read with regard to the NSA database of phone calls. … I’m not sure why it’s necessary to us to keep and have that kind of information.”
Chairman of the Senate Judiciary Committee Sen. Arlen Specter, R-Pennsylvania, said he would call on representatives from the companies named in the USA Today story; AT&T, Verizon and BellSouth; to testify.
However, Senate Majority Leader Bill Frist, R-Tennessee, told reporters he “strongly” agrees that the program is necessary, and said, “We’ll discuss whether hearings are necessary.”
In the House, Minority Leader Nancy Pelosi, D-California, asked Speaker Dennis Hastert, R-Illinois, for hearings into the program during a Thursday afternoon meeting.
Pelosi said the hearings should be conducted by the House Intelligence Committee because “those people have the clearance.”
Pelosi declined to say how Hastert responded to her request.
Conservatives defend program
During a morning session, Republican members of the committee defended the legality and necessity of such a database.
The USA Today report said the program did not involve the NSA “listening to or recording conversations,” a point that Sen. Jeff Sessions touched on.
“No recordings and no conversations were intercepted here, so there was no wiretapping here,” the Alabama Republican said.
Republican Sen. Jon Kyl of Arizona also faulted the revelation of the program as harmful to national security.
“This is nuts,” Kyl said. “We are in a war and we’ve go to collect intelligence on the enemy, and you can’t tell the enemy in advance how you are going to do it. And discussing all of this in public leads to that.”
Hayden nomination to proceed
Despite the controversy, the White House intends to go “full steam ahead” with Hayden’s nomination, Reuters reported.
“I think General Hayden has had a really good start to his confirmation process. He’s met with several members, the feedback is positive and we’re full steam ahead on his nomination,” White House spokeswoman Dana Perino told reporters while traveling with President Bush to Mississippi.
Facing Senate confirmation hearings before the Senate Intelligence Committee on May 18, Hayden’s meeting today with Republican Sens. Rick Santorum of Pennsylvania and Lisa Murkowski of Alaska were canceled.
The meeting with Santorum has been tentatively rescheduled for Tuesday afternoon, said Santorum aide Robert Traynham. “But the White House called it very tentative,” Traynham said.
The Justice Department has been denied security clearances for access to information, which prompted it to drop an investigation into the domestic spying program revealed late last year by the New York Times.
The Democrats’ No. 2 member of the Senate, Sen. Richard Durbin, called the development “evidence of a cover-up.”
“The fact … that the Department of Justice has abandoned their own investigation of this administration’s wrongdoing because there’s been a refusal to give investigators security clearances is clear evidence of a cover-up within the administration.”
by the way… that doesn’t make it any more legal, or excuse the nastiness of having to view everyone as suspects until proven otherwise, which is sort of like the ideas that this country was founded to get away from… 8/
Bush: Brother Jeb would be ‘great president’
Sen. Trent Lott tells Hardball he would ‘not be supportive’ of the candidacy
May 10, 2006
ORLANDO, Fla. – President Bush suggested Wednesday that he’d like to see his family’s White House legacy continue, perhaps with his younger brother Jeb as the chief executive.
The president said Florida Gov. Jeb Bush is well-suited for another office and would make “a great president.”
“I would like to see Jeb run at some point in time, but I have no idea if that’s his intention or not,” Bush said in an interview with Florida reporters, according to an account on the St. Petersburg Times Web site.
The president said he had “pushed him fairly hard about what he intends to do,” but the younger Bush has not said.
“I have no idea what he’s going to do. I’ve asked him that question myself. I truly don’t think he knows,” Bush said.
Jeb Bush, 53, will end his second term as governor in January. His brother George ends his second presidential term in January 2009. Neither can seek re-election because of term limits.
Lott to ‘Hardball’: Not a good idea
Jeb Bush has repeatedly said he is not going to run in 2008. And one veteran Republican Party leader suggested Wednesday that it wouldn’t be a good idea.
Just hours after President Bush endorsed a presidential run someday by his brother, Sen. Trent Lott, the Mississippi Republican, flatly rejected the idea in an interview with Chris Matthews, host of MSNBC’s “Hardball with Chris Matthews.”
Lott, whose ouster from the Senate Republican leadership in 2002 was helped in part by the Bush administration, offered a swift assessment of another Bush presidential campaign.
“I would not be supportive of Jeb Bush running for president, but I certainly understand why the president would say that about his own brother,” Lott said.
Lott has previously said he is supporting fellow Sen. John McCain of Arizona for the 2008 Republican nomination.
Asked if Gov. Bush could beat Democratic Sen. Hillary Clinton of New York in a 2008 matchup, Lott said, “I don’t think so. No.”
Lott went on to say that “the Republican nominee will eventually be able to win, will be able to beat Hillary Clinton or any Democrat.” But he repeated that the president’s brother would not be the right choice in his mind.
“I don’t think he’d be the best candidate for the nomination. You know, I’ve said that before, and I’m not backing off of that,” Lott said.
Dad: Jeb would be ‘awfully good’
Former President George H.W. Bush told CNN’s “Larry King Live” last year that he would like Jeb Bush to run one day and that he would be “awfully good” as president.
The Florida governor laughed when asked about his father’s comments last June. “Oh, Lord,” he said and shook his head no. “I love my dad.”
The brothers Bush appeared together Tuesday during the president’s visit to the Tampa area. Gov. Bush was waiting on the tarmac when Air Force One arrived and greeted the president with a politician’s handshake and “Welcome to Florida.” The president brushed aside the formality and playfully adjusted his younger brother’s necktie.
Jeb Bush introduced his brother at a retirement community in Sun City Center, where the president touted the new Medicare prescription drug benefit as the governor watched intently from a politically appropriate seat stage right.
They had a private lunch together with political supporters, then visited a fire station and appeared together before television cameras to express concern about wildfires that were blazing across the state.
The governor was not with the president during his visit to the Puerto Rican Club of Central Florida in Orlando on Wednesday — the president’s final stop on a three-day trip to the state. But the president was sure his brother still got some attention.
“Yesterday I checked in with my brother,” President Bush said as he took the stage. “Make sure everything’s going all right. I’m real proud of Jeb. He’s a good, decent man, and I love him dearly.”
Bush Ratings Hit New Low
which i’m too lazy to copy, but goes right along with everything else…