Bush Orders Domestic Spying. - Page 7

dalem · 12-27-2005, 18:27 PM

Here's a post I wrote answering the claims of a typical Lefty (and a non-American, of course) on another Forum this summer. I posted it in another thread here before Xmas but this thread is more actve and relevant.

-dale
------------------------------------------------
In hopes of driving a final wooden stake into the vampiric heart of Fire Drake's parroting of the willful misunderstandings of the Patriot Act, I offer a brief lesson in reality.

One of Fire Drake's standard Lefty caterwauls about the Patriot Act reads as follows:

Quote:

# Section 505 authorizes the use of an administrative subpoena of personal records, without requiring probable cause or judicial oversight.

Now, for brevity's sake, here is the original text of Section 505 of the P.A. dealing only with Section 2709(b) of title 18, United States Code (the other parts of 505 are very similar in language and effect):

Quote:

SEC. 505. MISCELLANEOUS NATIONAL SECURITY AUTHORITIES.

(a) TELEPHONE TOLL AND TRANSACTIONAL RECORDS- Section 2709(b) of title 18, United States Code, is amended--

(1) in the matter preceding paragraph (1), by inserting `at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director' after `Assistant Director';

(2) in paragraph (1)--

(A) by striking `in a position not lower than Deputy Assistant Director'; and

(B) by striking `made that' and all that follows and inserting the following: `made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and'; and

(3) in paragraph (2)--

(A) by striking `in a position not lower than Deputy Assistant Director'; and

(B) by striking `made that' and all that follows and inserting the following: `made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.'.

Let's look at P.A. change (1):

Original text of Section 2709(b) of title 18, United States Code (preamble to paragraphs) here:

Quote:

(a) Duty to Provide. - A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required Certification. - The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director, may -

New text as amended by the P.A.:

Quote:

(a) Duty to Provide. - A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required Certification. - The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may -

Let's look at P.A. change (2):

Original text of Section 2709(b) of title 18, United States Code (paragraph 1):

Quote:

(1) request the name, address, length of service, and toll billing records of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that -

(A) the name, address, length of service, and toll billing records sought are relevant to an authorized foreign counterintelligence investigation; and

(B) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 ); and

New text as amended by the P.A.:

Quote:

(1) request the name, address, length of service, and toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and

Lastly, let's look at P.A. change (3):

Original text of Section 2709(b) of title 18, United States Code (paragraph 2):

Quote:

(2) request the name, address, and length of service of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that -

(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and

(B) there are specific and articulable facts giving reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communication with -

(i) an individual who is engaging or has engaged in international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act (FOOTNOTE 1) or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States; or (FOOTNOTE 1) So in original. Probably should be ''Act of 1978''.

(ii) a foreign power or an agent of a foreign power under circumstances giving reason to believe that the communication concerned international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act (FOOTNOTE 1) or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States.

New text as amended by the P.A.:

Quote:

(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

The rest of Section 2709(b) of title 18, United States Code is almost identical in form and the P.A. amendments are almost identical in form and function.

So you can see it's quite simple. The original Section 505 says that the designated authority for an investigation can't be lower rank than Deputy Assistant Director, the amendment gives the Director more leeway in assigning authority. The original text limited the application of Section 2709(b) of title 18 to people already known to be working with or for international terrorists, the amendment allows application to anyone as long as they are relevant to an ongoing investigation. AND it inserts language specifically referencing the first amendment and the protection of persons engaged in acts so protected.

So let's look at Fire Drake's concerns again, piece by piece:

Quote:

# Section 505 authorizes the use of an administrative subpoena of personal records,

Wrong. Section 505 offers nothing new in this regard - any implied subpoenas were already allowed by the original language of the relevant United States Codes.

Quote:

without requiring probable cause

Wrong. Section 505 changes nothing with respect to probable cause.

Quote:

or judicial oversight.

Wrong again. There is no change of any implied or explicit judicial oversight. In fact, specific language about the first amendment is inserted which can be thought of as the ultimate judicial oversight - that of the Supreme Court of the United States.

So Fire Drake, I hope you can see now that, even using this one small example, you must begin to question your understanding of the Patriot Act. Your sources for your information are either willfully or accidentally deceiving you.

-dale

**Shek** · 12-27-2005, 18:59 PM

In keeping with the USA Patriot Act theme, here's a general overview on it from a Department of Justice website:

Quote:

http://www.lifeandliberty.gov/highlights.htm

The USA PATRIOT Act: Preserving Life and Liberty
(Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism)

Congress enacted the Patriot Act by overwhelming, bipartisan margins, arming law enforcement with new tools to detect and prevent terrorism: The USA Patriot Act was passed nearly unanimously by the Senate 98-1, and 357-66 in the House, with the support of members from across the political spectrum.

The Act Improves Our Counter-Terrorism Efforts in Several Significant Ways:

1. The Patriot Act allows investigators to use the tools that were already available to investigate organized crime and drug trafficking. Many of the tools the Act provides to law enforcement to fight terrorism have been used for decades to fight organized crime and drug dealers, and have been reviewed and approved by the courts. As Sen. Joe Biden (D-DE) explained during the floor debate about the Act, "the FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What's good for the mob should be good for terrorists." (Cong. Rec., 10/25/01)

Allows law enforcement to use surveillance against more crimes of terror. Before the Patriot Act, courts could permit law enforcement to conduct electronic surveillance to investigate many ordinary, non-terrorism crimes, such as drug crimes, mail fraud, and passport fraud. Agents also could obtain wiretaps to investigate some, but not all, of the crimes that terrorists often commit. The Act enabled investigators to gather information when looking into the full range of terrorism-related crimes, including: chemical-weapons offenses, the use of weapons of mass destruction, killing Americans abroad, and terrorism financing.

Allows federal agents to follow sophisticated terrorists trained to evade detection. For years, law enforcement has been able to use "roving wiretaps" to investigate ordinary crimes, including drug offenses and racketeering. A roving wiretap can be authorized by a federal judge to apply to a particular suspect, rather than a particular phone or communications device. Because international terrorists are sophisticated and trained to thwart surveillance by rapidly changing locations and communication devices such as cell phones, the Act authorized agents to seek court permission to use the same techniques in national security investigations to track terrorists.

Allows law enforcement to conduct investigations without tipping off terrorists. In some cases if criminals are tipped off too early to an investigation, they might flee, destroy evidence, intimidate or kill witnesses, cut off contact with associates, or take other action to evade arrest. Therefore, federal courts in narrow circumstances long have allowed law enforcement to delay for a limited time when the subject is told that a judicially-approved search warrant has been executed. Notice is always provided, but the reasonable delay gives law enforcement time to identify the criminal's associates, eliminate immediate threats to our communities, and coordinate the arrests of multiple individuals without tipping them off beforehand. These delayed notification search warrants have been used for decades, have proven crucial in drug and organized crime cases, and have been upheld by courts as fully constitutional.

Allows federal agents to ask a court for an order to obtain business records in national security terrorism cases. Examining business records often provides the key that investigators are looking for to solve a wide range of crimes. Investigators might seek select records from hardware stores or chemical plants, for example, to find out who bought materials to make a bomb, or bank records to see who's sending money to terrorists. Law enforcement authorities have always been able to obtain business records in criminal cases through grand jury subpoenas, and continue to do so in national security cases where appropriate. These records were sought in criminal cases such as the investigation of the Zodiac gunman, where police suspected the gunman was inspired by a Scottish occult poet, and wanted to learn who had checked the poet's books out of the library. In national security cases where use of the grand jury process was not appropriate, investigators previously had limited tools at their disposal to obtain certain business records. Under the Patriot Act, the government can now ask a federal court (the Foreign Intelligence Surveillance Court), if needed to aid an investigation, to order production of the same type of records available through grand jury subpoenas. This federal court, however, can issue these orders only after the government demonstrates the records concerned are sought for an authorized investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely on the basis of activities protected by the First Amendment.

2. The Patriot Act facilitated information sharing and cooperation among government agencies so that they can better "connect the dots." The Act removed the major legal barriers that prevented the law enforcement, intelligence, and national defense communities from talking and coordinating their work to protect the American people and our national security. The government's prevention efforts should not be restricted by boxes on an organizational chart. Now police officers, FBI agents, federal prosecutors and intelligence officials can protect our communities by "connecting the dots" to uncover terrorist plots before they are completed. As Sen. John Edwards (D-N.C.) said about the Patriot Act, "we simply cannot prevail in the battle against terrorism if the right hand of our government has no idea what the left hand is doing." (Press release, 10/26/01)

Prosecutors can now share evidence obtained through grand juries with intelligence officials -- and intelligence information can now be shared more easily with federal prosecutors. Such sharing of information leads to concrete results. For example, a federal grand jury recently indicted an individual in Florida, Sami al-Arian, for allegedly being the U.S. leader of the Palestinian Islamic Jihad, one of the world's most violent terrorist outfits. Palestinian Islamic Jihad is responsible for murdering more than 100 innocent people, including a young American named Alisa Flatow who was killed in a tragic bus bombing in Gaza. The Patriot Act assisted us in obtaining the indictment by enabling the full sharing of information and advice about the case among prosecutors and investigators. Alisa's father, Steven Flatow, has said, "When you know the resources of your government are committed to right the wrongs committed against your daughter, that instills you with a sense of awe. As a father you can't ask for anything more."

3. The Patriot Act updated the law to reflect new technologies and new threats. The Act brought the law up to date with current technology, so we no longer have to fight a digital-age battle with antique weapons-legal authorities leftover from the era of rotary telephones. When investigating the murder of Wall Street Journal reporter Daniel Pearl, for example, law enforcement used one of the Act's new authorities to use high-tech means to identify and locate some of the killers.

Allows law enforcement officials to obtain a search warrant anywhere a terrorist-related activity occurred. Before the Patriot Act, law enforcement personnel were required to obtain a search warrant in the district where they intended to conduct a search. However, modern terrorism investigations often span a number of districts, and officers therefore had to obtain multiple warrants in multiple jurisdictions, creating unnecessary delays. The Act provides that warrants can be obtained in any district in which terrorism-related activities occurred, regardless of where they will be executed. This provision does not change the standards governing the availability of a search warrant, but streamlines the search-warrant process.

Allows victims of computer hacking to request law enforcement assistance in monitoring the "trespassers" on their computers. This change made the law technology-neutral; it placed electronic trespassers on the same footing as physical trespassers. Now, hacking victims can seek law enforcement assistance to combat hackers, just as burglary victims have been able to invite officers into their homes to catch burglars.

4. The Patriot Act increased the penalties for those who commit terrorist crimes. Americans are threatened as much by the terrorist who pays for a bomb as by the one who pushes the button. That's why the Patriot Act imposed tough new penalties on those who commit and support terrorist operations, both at home and abroad. In particular, the Act:

Prohibits the harboring of terrorists. The Act created a new offense that prohibits knowingly harboring persons who have committed or are about to commit a variety of terrorist offenses, such as: destruction of aircraft; use of nuclear, chemical, or biological weapons; use of weapons of mass destruction; bombing of government property; sabotage of nuclear facilities; and aircraft piracy.

Enhanced the inadequate maximum penalties for various crimes likely to be committed by terrorists: including arson, destruction of energy facilities, material support to terrorists and terrorist organizations, and destruction of national-defense materials.

Enhanced a number of conspiracy penalties, including for arson, killings in federal facilities, attacking communications systems, material support to terrorists, sabotage of nuclear facilities, and interference with flight crew members. Under previous law, many terrorism statutes did not specifically prohibit engaging in conspiracies to commit the underlying offenses. In such cases, the government could only bring prosecutions under the general federal conspiracy provision, which carries a maximum penalty of only five years in prison.

Punishes terrorist attacks on mass transit systems.

Punishes bioterrorists.

Eliminates the statutes of limitations for certain terrorism crimes and lengthens them for other terrorist crimes.
The government's success in preventing another catastrophic attack on the American homeland since September 11, 2001, would have been much more difficult, if not impossible, without the USA Patriot Act. The authorities Congress provided have substantially enhanced our ability to prevent, investigate, and prosecute acts of terror.

Confed999 · 12-27-2005, 19:33 PM

I think people suspected of being violent criminals should be investigated...

Simullacrum · 12-28-2005, 09:36 AM

Quote:

Originally Posted by Confed999

I think people suspected of being violent criminals should be investigated...

I dont realy see a big problem or whoha about this.....going from an indirect method of evesdropping to a direct method.!

Indirect===>part of the Echelon deal maintianed by the NSA and the British GCHQ is that the Brits get to spy on US individuals with info from the NSA and that information is then passed back to the NSA....for more 'recon'.
A bit like a loophole if you will....passes one of your amendments (if im not mistaken) where by it states that the govenrment cannot spy on its own in the US. So get the Brits to do it and pass the info on..!!

So now they do it in house....with the inclusion of GCHQ..!!

**Julie** · 12-28-2005, 11:01 AM

My only point was the usage of domestic wire-tapping as a form of prosecution. I understand it is a preventive measure for terrorist attacks, but the only initial charge that can be made is conspiracy to commit, unless other evidence is found which Shek touched upon.

Where they are transported from there is very murky waters since the Geneva Conventions may, or may not, apply, since they hold them endlessly without declaring they are enemy combatants or not. The Supreme Court and Appeals Court has bounced this issue back and forth like a hot potatoe. In the meantime, you have a mere conspiracy charge that fades after a couple of years, because the charge is so lightweight, and he is released, then backlashes with a suit against our Government costing taxpayers millions of dollars.

In conclusion, I feel there are no specific international law imposed to prosecute a terrorist based upon a conspiracy charge.

**Shek** · 12-28-2005, 12:00 PM

Quote:

Originally Posted by Julie

Where they are transported from there is very murky waters since the Geneva Conventions may, or may not, apply, since they hold them endlessly without declaring they are enemy combatants or not. The Supreme Court and Appeals Court has bounced this issue back and forth like a hot potatoe.

They are illegal enemy combatants who are being held until the end of the conflict. This has been the position of the Administration from nearly day one - where is the confusion over this?? If OBL calls off the jihad tomorrow, then they must be either released or charged (although the evidence probably won't be there because Miranda rights haven't been read, making interrogations inadmissable, etc.). However, the issue hasn't been bounced back and forth like a hot potato. Hamdan has lost at the SCOTUS, Hamadi has lost 3-0 in terms of judges and 7-0 in terms of arguments at the circuit court of appeals level (although the SCOTUS will hear the case with the Chief Justice recusing himself from the proceedings).

**Julie** · 12-28-2005, 12:19 PM

Obviously we're not reading the same things. I'm talking jurisdiction and avenues of prosecution here. Gitmo has been in the air since it began as far as jurisdiction and realms of prosecution. If we're going to go so far over the line to impose domestic spying, let's not let the prosecutional avenues be half-ass.

**Shek** · 12-28-2005, 12:49 PM

Quote:

Originally Posted by Julie

Obviously we're not reading the same things. I'm talking jurisdiction and avenues of prosecution here. Gitmo has been in the air since it began as far as jurisdiction and realms of prosecution. If we're going to go so far over the line to impose domestic spying, let's not let the prosecutional avenues be half-ass.

1. The Bush administration lost the jurisdiction fight at the SCOTUS in Rasul v. Bush. No arguments there as it's pretty clear.

2. I was referring to the illegal enemy combatant designation, which the Administration has won in each case so far. This is what I thought you were referring to.

3. I don't consider foreign intercepts to be domestic spying.

**Julie** · 12-28-2005, 14:57 PM

Quote:

Originally Posted by shek

3. I don't consider foreign intercepts to be domestic spying.

A foreign call to US soil and vice versa, includes but is not limited to, domestic spying.

**Shek** · 12-28-2005, 15:03 PM

Quote:

Originally Posted by Julie

A foreign call to US soil and vice versa, includes but is not limited to, domestic spying.

Is there a legal definition or case law that defines that as such?

For example, KSM from Karachi gives Mohammed Atta a ring in Jersey. Under your definition, that's domestic spying.

**Shek** · 12-28-2005, 17:16 PM

A poll doesn't mean that it is or isn't constitutional/legal, but it does show support for President Bush's actions. Also, I'm sure that a holiday poll has a little less precision, so we'll have to see how future polls compare.

Quote:

http://www.rasmussenreports.com/2005/NSA.htm

National Security Agency

Survey of 1,000 Adults

December 26-27, 2005

Should the National Security Agency be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States?

Yes 64%
No 23%

Is President Bush the first President to authorize a program for intercepting telephone conversations between terrorism suspects in other countries and people living in the United States?

Yes 26%
No 48%

--------------------------------------------------------------------------------
December 28, 2005--Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree.

Sixty-eight percent (68%) of Americans say they are following the NSA story somewhat or very closely.

Just 26% believe President Bush is the first to authorize a program like the one currently in the news. Forty-eight percent (48%) say he is not while 26% are not sure.

Eighty-one percent (81%) of Republicans believe the NSA should be allowed to listen in on conversations between terror suspects and people living in the United States. That view is shared by 51% of Democrats and 57% of those not affiliated with either major political party.

Ray · 12-31-2005, 11:33 AM

Saturday, December 31, 2005 E-Mail this article to a friend Printer Friendly Version

Muslim groups seek electronic spying details from government

By Khalid Hasan

WASHINGTON: Two Muslim rights organisations have filed an application under the Freedom of Information Act to obtain details of the groups, buildings and individuals subjected to electronic surveillance after the September 11 terror attacks. The surveillance was carried out to determine if they were harbouring a “dirty” device for an attack on a US target.

The revelation by an American magazine last week of the electronic surveillance has shocked the Muslim community across the United States, though not everyone is surprised. Ahmad Shakil Mian, a Pakistani-American businessman and freelance journalist who speaks Arabic and is actively involved in a range of the Islamic community’s activities, says: “I was not in the least surprised by the revelation that Muslim groups and institutions, including mosques, had been electronically spied upon. Every one of us should assume that he is under surveillance. Maybe there is no place for us and our younger generation in this country any longer, unless we turn our back on our culture, religion and way of life. The Republicans have done this country grievous and lasting harm. It is my prediction that one day, (US President George W) Bush is going to be remembered in the same way as Senator Jo McCarthy is remembered today: a man who divided this country and put innocent people under suspicion, in the process destroying many lives and careers.”

The Washington Post reports that faced with angry complaints, US officials are now defending an anti-terrorism programme that secretly tested radiation levels around the country, including more than 100 Muslim sites in the Washington area. The officials insist, however, that no one was targeted because of his or her faith. One official said that Muslim sites were included because Al Qaeda terrorists were considered likely to gravitate to Muslim neighbourhoods or mosques while in the United States. No indications of radiation were found at the businesses, homes, warehouses or mosques put under surveillance. The official said that the radiation monitoring of Muslim sites started after the 9/11 attacks and lasted through 2003.

The Freedom of Information requests have been filed by the Council for American Islamic Relations (CAIR) and the Muslim Public Affairs Council. Michael A Mason of the Federal Bureau of Investigation’s (FBI) Washington office told the Post: “We have not violated the law, and we have not violated the constitution. We have not gone on private property.” He called the devices used “passive”, comparing them to holding a thermometer out of the window of a moving car to measure the temperature. The surveillance programme included airports, buildings and monuments considered possible targets for a terrorist attack, with Washington as the capital being under intensive focus. Authorities determined that in the past, Al Qaeda terrorists or people close to them tended to live in Muslim neighbourhoods or attend local mosques, which was how some sites were included in the programme. Other sites were chosen because of specific intelligence information.

According to Arsalan Iftikhar, the CAIR legal director: “We’d like our federal law enforcement agencies to know (that) the American Muslim community stands firmly behind protecting our nation’s borders. But, at the same time, we are not willing to give up our guaranteed constitutional and legal rights in order to do that.”
http://www.dailytimes.com.pk/default...12-2005_pg7_46

**Shek** · 12-31-2005, 11:39 AM

Quote:

Originally Posted by Ray

According to Arsalan Iftikhar, the CAIR legal director: “We’d like our federal law enforcement agencies to know (that) the American Muslim community stands firmly behind protecting our nation’s borders. But, at the same time, we are not willing to give up our guaranteed constitutional and legal rights in order to do that.”
http://www.dailytimes.com.pk/default...12-2005_pg7_46

Too bad the radiation detection program is 100% constitutional - CAIR will have to find another issue about which to cry about their "victim" status. As a secret program, their FOIA request will be DENIED.

Ray · 12-31-2005, 12:06 PM

I guess like it or lump it is the only answer for them!

**Shek** · 01-01-2006, 15:15 PM

Back to the original motivation for printing the NSA story - seems like the NYT is giving that decision a top secret classification, unlike the top secret classification of the government information that they downgraded to "for everyone's eyes, including AQ, only." At least the NYT has commited itself to better transparency by allowing the ombudsman to print this article, although some of the language and conclusions below puzzled me.

Quote:

http://www.nytimes.com/2006/01/01/op...gewanted=print

January 1, 2006
The Public Editor

Behind the Eavesdropping Story, a Loud Silence

By BYRON CALAME

THE New York Times's explanation of its decision to report, after what it said was a one-year delay, that the National Security Agency is eavesdropping domestically without court-approved warrants was woefully inadequate. And I have had unusual difficulty getting a better explanation for readers, despite the paper's repeated pledges of greater transparency.

For the first time since I became public editor, the executive editor and the publisher have declined to respond to my requests for information about news-related decision-making. My queries concerned the timing of the exclusive Dec. 16 article about President Bush's secret decision in the months after 9/11 to authorize the warrantless eavesdropping on Americans in the United States.

I e-mailed a list of 28 questions to Bill Keller, the executive editor, on Dec. 19, three days after the article appeared. He promptly declined to respond to them. I then sent the same questions to Arthur Sulzberger Jr., the publisher, who also declined to respond. They held out no hope for a fuller explanation in the future.

Despite this stonewalling, my objectives today are to assess the flawed handling of the original explanation of the article's path into print, and to offer a few thoughts on some factors that could have affected the timing of the article. My intention is to do so with special care, because my 40-plus years of newspapering leave me keenly aware that some of the toughest calls an editor can face are involved here - those related to intelligence gathering, election-time investigative articles and protection of sources. On these matters, reasonable disagreements can abound inside the newsroom.

(A word about my reporting for this column: With the top Times people involved in the final decisions refusing to talk and urging everyone else to remain silent, it seemed clear to me that chasing various editors and reporters probably would yield mostly anonymous comments that the ultimate decision-makers would not confirm or deny. So I decided not to pursue those who were not involved in the final decision to publish the article - or to refer to Times insiders quoted anonymously in others' reporting.)

At the outset, it's essential to acknowledge the far-reaching importance of the eavesdropping article's content to Times readers and to the rest of the nation. Whatever its path to publication, Mr. Sulzberger and Mr. Keller deserve credit for its eventual appearance in the face of strong White House pressure to kill it. And the basic accuracy of the account of the eavesdropping stands unchallenged - a testament to the talent in the trenches.

Why the use of the language "kill"? Why not "prevent publication"?

But the explanation of the timing and editing of the front-page article by James Risen and Eric Lichtblau caused major concern for scores of Times readers. The terse one-paragraph explanation noted that the White House had asked for the article to be killed. "After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting," it said. "Some information that administration officials argued could be useful to terrorists has been omitted."

KILL!

If Times editors hoped the brief mention of the one-year delay and the omitted sensitive information would assure readers that great caution had been exercised in publishing the article, I think they miscalculated. The mention of a one-year delay, almost in passing, cried out for a fuller explanation. And the gaps left by the explanation hardly matched the paper's recent bold commitments to readers to explain how news decisions are made.

At the very least, The Times should have told readers in the article why it could not address specific issues. At least some realization of this kicked in rather quickly after publication. When queried by reporters for other news media on Dec. 16, Mr. Keller offered two prepared statements that shed some additional light on the timing and handling of the article.

The longer of Mr. Keller's two prepared statements said the paper initially held the story based on national security considerations and assurances that everyone in government believed the expanded eavesdropping was legal. But when further reporting showed that legal questions loomed larger than The Times first thought and that a story could be written without certain genuinely sensitive technical details, he said, the paper decided to publish. (Mr. Keller's two prepared statements, as well as some thoughtful reader comments, are posted on the Public Editor's Web Journal.)

Times readers would have benefited if the explanation in the original article had simply been expanded to include the points Mr. Keller made after publication. And if the length of that proved too clunky for inclusion in the article, the explanation could have been published as a separate article near the main one. Even the sentence he provided me as to why he would not answer my questions offered some possible insight.

Protection of sources is the most plausible reason I've been able to identify for The Times's woeful explanation in the article and for the silence of Mr. Sulzberger and Mr. Keller. I base this on Mr. Keller's response to me: "There is really no way to have a full discussion of the back story without talking about when and how we knew what we knew, and we can't do that."

Taken at face value, Mr. Keller seems to be contending that the sourcing for the eavesdropping article is so intertwined with the decisions about when and what to publish that a full explanation could risk revealing the sources. I have no trouble accepting the importance of confidential sourcing concerns here. The reporters' nearly one dozen confidential sources enabled them to produce a powerful article that I think served the public interest.

With confidential sourcing under attack and the reporters digging in the backyards of both intelligence and politics, The Times needs to guard the sources for the eavesdropping article with extra special care. Telling readers the time that the reporters got one specific fact, for instance, could turn out to be a dangling thread of information that the White House or the Justice Department could tug at until it leads them to the source. Indeed, word came Friday that the Justice Department has opened an investigation into the disclosure of classified information about the eavesdropping.

Wouldn't that be aiding and abetting criminal activity? obstruction of justice?

The most obvious and troublesome omission in the explanation was the failure to address whether The Times knew about the eavesdropping operation before the Nov. 2, 2004, presidential election. That point was hard to ignore when the explanation in the article referred rather vaguely to having "delayed publication for a year." To me, this language means the article was fully confirmed and ready to publish a year ago - after perhaps weeks of reporting on the initial tip - and then was delayed.

Mr. Keller dealt directly with the timing of the initial tip in his later statements. The eavesdropping information "first became known to Times reporters" a year ago, he said. These two different descriptions of the article's status in the general vicinity of Election Day last year leave me puzzled.

For me, however, the most obvious question is still this: If no one at The Times was aware of the eavesdropping prior to the election, why wouldn't the paper have been eager to make that clear to readers in the original explanation and avoid that politically charged issue? The paper's silence leaves me with uncomfortable doubts.

On the larger question of why the eavesdropping article finally appeared when it did, a couple of possibilities intrigue me.

One is that Times editors said they discovered there was more concern inside the gov

12-27-2005, 19:33 PM	#93 (permalink)
Confed999 Staff Emeritus Join Date: 09-10-03 Location: Florida Posts: 10,681 Country:	I think people suspected of being violent criminals should be investigated... __________________ No man is free until all men are free - John Hossack I agree completely with this Administration’s goal of a regime change in Iraq-John Kerry even if that enforcement is mostly at the hands of the United States, a right we retain even if the Security Council fails to act-John Kerry He may even miscalculate and slide these weapons off to terrorist groups to invite them to be a surrogate to use them against the United States. It’s the miscalculation that poses the greatest threat-John Kerry

12-31-2005, 11:33 AM	#102 (permalink)
Ray Postmaster General *Military Professional* Join Date: 08-20-03 Posts: 28,276 Country:	Saturday, December 31, 2005 E-Mail this article to a friend Printer Friendly Version Muslim groups seek electronic spying details from government By Khalid Hasan WASHINGTON: Two Muslim rights organisations have filed an application under the Freedom of Information Act to obtain details of the groups, buildings and individuals subjected to electronic surveillance after the September 11 terror attacks. The surveillance was carried out to determine if they were harbouring a “dirty” device for an attack on a US target. The revelation by an American magazine last week of the electronic surveillance has shocked the Muslim community across the United States, though not everyone is surprised. Ahmad Shakil Mian, a Pakistani-American businessman and freelance journalist who speaks Arabic and is actively involved in a range of the Islamic community’s activities, says: “I was not in the least surprised by the revelation that Muslim groups and institutions, including mosques, had been electronically spied upon. Every one of us should assume that he is under surveillance. Maybe there is no place for us and our younger generation in this country any longer, unless we turn our back on our culture, religion and way of life. The Republicans have done this country grievous and lasting harm. It is my prediction that one day, (US President George W) Bush is going to be remembered in the same way as Senator Jo McCarthy is remembered today: a man who divided this country and put innocent people under suspicion, in the process destroying many lives and careers.” The Washington Post reports that faced with angry complaints, US officials are now defending an anti-terrorism programme that secretly tested radiation levels around the country, including more than 100 Muslim sites in the Washington area. The officials insist, however, that no one was targeted because of his or her faith. One official said that Muslim sites were included because Al Qaeda terrorists were considered likely to gravitate to Muslim neighbourhoods or mosques while in the United States. No indications of radiation were found at the businesses, homes, warehouses or mosques put under surveillance. The official said that the radiation monitoring of Muslim sites started after the 9/11 attacks and lasted through 2003. The Freedom of Information requests have been filed by the Council for American Islamic Relations (CAIR) and the Muslim Public Affairs Council. Michael A Mason of the Federal Bureau of Investigation’s (FBI) Washington office told the Post: “We have not violated the law, and we have not violated the constitution. We have not gone on private property.” He called the devices used “passive”, comparing them to holding a thermometer out of the window of a moving car to measure the temperature. The surveillance programme included airports, buildings and monuments considered possible targets for a terrorist attack, with Washington as the capital being under intensive focus. Authorities determined that in the past, Al Qaeda terrorists or people close to them tended to live in Muslim neighbourhoods or attend local mosques, which was how some sites were included in the programme. Other sites were chosen because of specific intelligence information. According to Arsalan Iftikhar, the CAIR legal director: “We’d like our federal law enforcement agencies to know (that) the American Muslim community stands firmly behind protecting our nation’s borders. But, at the same time, we are not willing to give up our guaranteed constitutional and legal rights in order to do that.” http://www.dailytimes.com.pk/default...12-2005_pg7_46 __________________ "Some have learnt many Tricks of sly Evasion, Instead of Truth they use Equivocation, And eke it out with mental Reservation, Which is to good Men an Abomination." I don't have to attend every argument I'm invited to. HAKUNA MATATA

12-28-2005, 11:01 AM	#95 (permalink)
Julie Moderator Join Date: 08-04-03 Location: Georgia, USA Posts: 6,806 Country:	My only point was the usage of domestic wire-tapping as a form of prosecution. I understand it is a preventive measure for terrorist attacks, but the only initial charge that can be made is conspiracy to commit, unless other evidence is found which Shek touched upon. Where they are transported from there is very murky waters since the Geneva Conventions may, or may not, apply, since they hold them endlessly without declaring they are enemy combatants or not. The Supreme Court and Appeals Court has bounced this issue back and forth like a hot potatoe. In the meantime, you have a mere conspiracy charge that fades after a couple of years, because the charge is so lightweight, and he is released, then backlashes with a suit against our Government costing taxpayers millions of dollars. In conclusion, I feel there are no specific international law imposed to prosecute a terrorist based upon a conspiracy charge.

12-28-2005, 12:19 PM	#97 (permalink)
Julie Moderator Join Date: 08-04-03 Location: Georgia, USA Posts: 6,806 Country:	Obviously we're not reading the same things. I'm talking jurisdiction and avenues of prosecution here. Gitmo has been in the air since it began as far as jurisdiction and realms of prosecution. If we're going to go so far over the line to impose domestic spying, let's not let the prosecutional avenues be half-ass.

12-31-2005, 12:06 PM	#104 (permalink)
Ray Postmaster General *Military Professional* Join Date: 08-20-03 Posts: 28,276 Country:	I guess like it or lump it is the only answer for them!