Rule By Fear Or Rule By Law?

"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."
- Winston Churchill, Nov. 21, 1943

At SFgate.com, Lewish Seillor and Dan Hamburg write:

Since 9/11, and seemingly without the notice of most Americans, the federal government has assumed the authority to institute martial law, arrest a wide swath of dissidents (citizen and noncitizen alike), and detain people without legal or constitutional recourse in the event of "an emergency influx of immigrants in the U.S., or to support the rapid development of new programs."

Beginning in 1999, the government has entered into a series of single-bid contracts with Halliburton subsidiary Kellogg, Brown and Root (KBR) to build detention camps at undisclosed locations within the United States. The government has also contracted with several companies to build thousands of railcars, some reportedly equipped with shackles, ostensibly to transport detainees.

According to diplomat and author Peter Dale Scott, the KBR contract is part of a Homeland Security plan titled ENDGAME, which sets as its goal the removal of "all removable aliens" and "potential terrorists."

Fraud-busters such as Rep. Henry Waxman, D-Los Angeles, have complained about these contracts, saying that more taxpayer dollars should not go to taxpayer-gouging Halliburton. But the real question is: What kind of "new programs" require the construction and refurbishment of detention facilities in nearly every state of the union with the capacity to house perhaps millions of people?

Sect. 1042 of the 2007 National Defense Authorization Act (NDAA), "Use of the Armed Forces in Major Public Emergencies," gives the executive the power to invoke martial law. For the first time in more than a century, the president is now authorized to use the military in response to "a natural disaster, a disease outbreak, a terrorist attack or any other condition in which the President determines that domestic violence has occurred to the extent that state officials cannot maintain public order."

The Military Commissions Act of 2006, rammed through Congress just before the 2006 midterm elections, allows for the indefinite imprisonment of anyone who donates money to a charity that turns up on a list of "terrorist" organizations, or who speaks out against the government's policies. The law calls for secret trials for citizens and noncitizens alike.

Also in 2007, the White House quietly issued National Security Presidential Directive 51 (NSPD-51), to ensure "continuity of government" in the event of what the document vaguely calls a "catastrophic emergency." Should the president determine that such an emergency has occurred, he and he alone is empowered to do whatever he deems necessary to ensure "continuity of government." This could include everything from canceling elections to suspending the Constitution to launching a nuclear attack. Congress has yet to hold a single hearing on NSPD-51.

U.S. Rep. Jane Harman, D-Venice (Los Angeles County) has come up with a new way to expand the domestic "war on terror." Her Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 (HR1955), which passed the House by the lopsided vote of 404-6, would set up a commission to "examine and report upon the facts and causes" of so-called violent radicalism and extremist ideology, then make legislative recommendations on combatting it.

According to commentary in the Baltimore Sun, Rep. Harman and her colleagues from both sides of the aisle believe the country faces a native brand of terrorism, and needs a commission with sweeping investigative power to combat it.

A clue as to where Harman's commission might be aiming is the Animal Enterprise Terrorism Act, a law that labels those who "engage in sit-ins, civil disobedience, trespass, or any other crime in the name of animal rights" as terrorists. Other groups in the crosshairs could be anti-abortion protesters, anti-tax agitators, immigration activists, environmentalists, peace demonstrators, Second Amendment rights supporters ... the list goes on and on. According to author Naomi Wolf, the National Counterterrorism Center holds the names of roughly 775,000 "terror suspects" with the number increasing by 20,000 per month.

What could the government be contemplating that leads it to make contingency plans to detain without recourse millions of its own citizens?

The Constitution does not allow the executive to have unchecked power under any circumstances. The people must not allow the president to use the war on terrorism to rule by fear instead of by law.

Lewis Seiler is the president of Voice of the Environment, Inc. Dan Hamburg, a former congressman, is executive director.

Gonzales Knew Of FBI Violations & Lied About It To Congress

The Washington Post reports:

Attorney General Alberto Gonzales received reports detailing legal or procedural violations by FBI agents in the months before he told senators that no such abuses had occurred, The Washington post reported Tuesday.

In April 2005, while seeking renewal of the broad powers granted law enforcement under the USA Patriot Act, Gonzales said, "There has not been one verified case of civil liberties abuse" from the law enacted after the 9/11 terror attacks.

According to the Post, Gonzales had received a least half a dozen reports describing such violations in the three months before he made that statement. The newspaper obtained the internal FBI documents under the Freedom of Information Act.

The violations, the Post reported, included unauthorized surveillance and an illegal property search.

Justice officials said they did not know whether Gonzales had read the reports.

Department spokesman Brian Roehrkasse said, "The statements from the attorney general are consistent with statements from other officials at the FBI and the department." He told the Post that many of the violations were not illegal but merely involved procedural safeguards or even typographical errors.

A Government Insider Speaks Out

At AfterDowningStreet.org, Steven Watson writes:

Is it possible that the anthrax attacks were launched from within our own government? A former Bush 1 advisor thinks it is.

Francis A. Boyle, an international law expert who worked under the first Bush Administration as a bioweapons advisor in the 1980s, has said that he is convinced the October 2001 anthrax attacks that killed five people were perpetrated and covered up by criminal elements of the U.S. government. The motive: to foment a police state by killing off and intimidating opposition to post-9/11 legislation such as the USA PATRIOT Act and the later Military Commissions Act.

"After the September 11, 2001, terrorist attacks, the Bush Administration tried to ram the USA PATRIOT Act through Congress," Boyle said in a radio interview with Austin-based talk-show host Alex Jones. "That would have set up a police state.

"Senators Tom Daschle (D-South Dakota) and Patrick Leahy (D-Vermont)
were holding it up because they realized what this would lead to. The
first draft of the PATRIOT Act would have suspended the writ of habeas
corpus [which protects citizens from unlawful imprisonment and
guarantees due process of law]. Then all of a sudden, out of nowhere,
come these anthrax attacks."

"At the time I myself did not know precisely what was going on, either
with respect to September 11 or the anthrax attacks, but then the New
York Times revealed the technology behind the letter to Senator
Daschle. [The anthrax used was] a trillion spores per gram, [refined
with] special electro-static treatment. This is superweapons-grade
anthrax that even the United States government, in its openly
proclaimed programs, had never developed before. So it was obvious to
me that this was from a U.S. government lab. There is nowhere else you
could have gotten that."

Boyle's assessment was based on his years of expertise regarding
America's bioweapons programs. He was responsible for drafting the
Biological Weapons Anti-Terrorism Act of 1989 that was passed
unanimously by both houses of Congress and signed into law by President
George H.W. Bush.

After realizing that the anthrax attacks looked like a domestic job,
Boyle called a high-level official in the FBI who deals with terrorism
and counterterrorism, Marion "Spike" Bowman. Boyle and Bowman had met
at a terrorism conference at the University of Michigan Law School.
Boyle told Bowman that the only people who would have the capability to
carry out the attacks were individuals working on U.S. government
anthrax programs with access to a high-level biosafety lab. Boyle gave
Bowman a full list of names of scientists, contractors and labs
conducting anthrax work for the U.S. government and military.

Bowman then informed Boyle that the FBI was working with Fort Detrick
on the matter. Boyle expressed his view that Fort Detrick could be the
main problem. As widely reported in 2002 publications, notably the New
Scientist, the anthrax strain used in the attacks was officially
assessed as "military grade."

"Soon after I informed Bowman of this information, the FBI authorized
the destruction of the Ames cultural anthrax database," the professor
said. The Ames strain turned out to be the same strain as the spores
used in the attacks.

The alleged destruction of the anthrax culture collection at Ames,
Iowa, from which the Fort Detrick lab got its pathogens, was blatant
destruction of evidence. It meant that there was no way of finding out
which strain was sent to whom to develop the larger breed of anthrax
used in the attacks. The trail of genetic evidence would have led
directly back to a secret government biowarfare program.

"Clearly, for the FBI to have authorized this was obstruction of
justice, a federal crime," said Boyle. "That collection should have
been preserved and protected as evidence. That's the DNA, the
fingerprints right there. It later came out, of course, that this was
Ames strain anthrax that was behind the Daschle and Leahy letters."

At that point, recounted Boyle, it became very clear to him that there
was a coverup underway. He later discovered, while reading David Ray
Griffin's book on the 9/11 attacks, The New Pearl Harbor, that Bowman
was the same FBI agent who allegedly sabotaged the FISA warrant for
access to [convicted co-conspirator] Zacharias Moussaoui's computer
prior to 9/11. Moussaoui's computer contained information that could
have helped prevent the attacks on the World Trade Center and the
Pentagon.

In 2003, Bowman was promoted and given the Presidential Rank Award by
FBI Director Robert S. Mueller. Senator Chuck Grassley (R-Iowa) wrote a
letter to Mueller, chastising the organization for granting such an
honor to an agent who had so obviously compromised America's security.

During the anthrax scare, the House of Representatives was officially
shut down for the first time in the history of the republic. Once
opposition from Leahy and Daschle evaporated in the wake of the
attempts on their lives, the USA PATRIOT Act was rammed through.
Testimony by Representative Ron Paul (R-Texas) revealed that most
members of Congress were compelled to vote for the bill without even
reading it.

"They were going to move to suspend the writ of habeas corpus, which is
all that really separates us from a police state," Boyle said. "And
that is what they have done now with respect to enemy combatants [in
the Military Commissions Act of 2006]." Boyle added that lawmakers are
now arguing that Amendment XIV, which guarantees due process of law to
all Americans, does not mean what it has been taken to mean and that,
under the Military Commissions Act, any U.S. citizen can be stripped of
citizenship and be labeled an enemy combatant.

Continued Boyle: "In other words, they have taken the position that at
some point in time, if they want to, they can unilaterally round up
United States native-born citizens, as they did for Japanese-Americans
in World War II, and stick us into concentration camps." Boyle asserted
that top officials, such as White House legal advisor John Yoo and
former Assistant Attorney General Jack Goldsmith (now a professor at
Harvard Law School), are pushing for the legalization of torture as
well.

"The Nazis did the exact same thing," said Boyle. "They had their
lawyers infiltrating law schools. Carl Schmidt was the worst, and he
was the mentor to Leo Strauss, the [ideological] founder of the
neoconservatives. So the same phenomenon that started in Nazi Germany
is happening here, and I exaggerate not. We could all be tortured; we
could all be treated this way."

Boyle stressed that it is vital to keep up the pressure on Senator
Leahy, who now chairs the Senate Judiciary Committee, giving him
subpoena power. Since Leahy was himself a target, he may have
sufficient motivation to get to the bottom of the attacks. The FBI and
the Justice Department have so far refused full disclosure to Congress.

In addition to his credentials as a government advisor, Boyle also
holds a doctorate of law magna cum laude and a Ph.D. in political
science, both from Harvard University. He teaches international law at
the University of Illinois at Champaign-Urbana. Boyle also served on
the Board of Directors of Amnesty International (1988-92) and
represented Bosnia-Herzegovina at the World Court.

Boyle alleged that due to his activities as a lawyer, he was
interrogated by an agent from the CIA/FBI Joint Terrorism Task Force in
the summer of 2004. The agent tried to recruit him as an informant to
provide the FBI with information on his Arab and Muslim clients. When
he refused, according to Boyle, the FBI placed him on the government's
terrorism watch lists.

Gonzales Uses U.S. Attorney Appointment Power That Congress Banned

Raw Story reports:
In a Senate Judiciary Committee business meeting Thursday morning, Senator Patrick Leahy (D-VT) revealed that Attorney General Alberto Gonzales once again used an interim appointment authority at the heart of the US Attorneys controversy that Congress banned in a bill sent to the President for signature on June 4.

"Senator Feinstein’s U.S. Attorney bill....repeals that portion of the Patriot Act Reauthorization that had allowed the Attorney General to circumvent advice and consent with respect to U.S. Attorneys. That bill, the Preserving United States Attorney Independence Act of 2007, has been on the President’s desk since June 4. It seems he just cannot bring himself to sign it. Instead, we were informed yesterday through the Justice Department that the Attorney General has used the power that we have voted to repeal, again," said Senator Leahy, the committee's chairman.

Tracy Schmaler, a spokeswoman for Senator Leahy, clarified the situation in an e-mail to RAW STORY.

"It just so happens the committee got notice yesterday, that on June 16, George Cardona's 210 days as Acting U.S. Attorney in the Central District of California will have run out and the Attorney General will appoint him as an interim U.S. Attorney at that time. (i.e. still using the end-run authority because Bush has slow-walked signing the bill)," she wrote.

RAW STORY could not reach the Justice Department for comment at press time.

On June 4, the Congress sent S. 214, the Preserving United States Attorney Independence Act of 2007, to President George W. Bush. The bill overturned a measure stealthily passed by the Republican-led Congress in 2006 that allowed the Attorney General to indefinitely appoint US Attorneys on an interim basis. Critics said the provision was intended to do an end-run around the standard Senate confirmation process for US Attorneys.

The bill passed the Senate by a 94-2 margin on March 20, and also cleared the House of Representatives by a 306-114 vote on May 22. The President has yet to sign or veto the bill.

FBI Finds It Frequently Overstepped in Collecting Data

The Washington Post reports:

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

FBI officials said the results confirmed what agency supervisors and outside critics feared, namely that many agents did not understand or follow the required legal procedures and paperwork requirements when collecting personal information with one of the most sensitive and powerful intelligence-gathering tools of the post-Sept. 11 era -- the National Security Letter, or NSL.

Such letters are uniformly secret and amount to nonnegotiable demands for personal information -- demands that are not reviewed in advance by a judge. After the 2001 terrorist attacks, Congress substantially eased the rules for issuing NSLs, requiring only that the bureau certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."

The change -- combined with national anxiety about another domestic terrorist event -- led to an explosive growth in the use of the letters. More than 19,000 such letters were issued in 2005 seeking 47,000 pieces of information, mostly from telecommunications companies. But with this growth came abuse of the newly relaxed rules, a circumstance first revealed in the Justice Department's March report by Inspector General Glenn A. Fine.

"The FBI's comprehensive audit of National Security Letter use across all field offices has confirmed the inspector general's findings that we had inadequate internal controls for use of an invaluable investigative tool," FBI General Counsel Valerie E. Caproni said. "Our internal audit examined a much larger sample than the inspector general's report last March, but we found similar percentages of NSLs that had errors."

"Since March," Caproni added, "remedies addressing every aspect of the problem have been implemented or are well on the way."

Of the more than 1,000 violations uncovered by the new audit, about 700 involved telephone companies and other communications firms providing information that exceeded what the FBI's national security letters had sought. But rather than destroying the unsolicited data, agents in some instances issued new National Security Letters to ensure that they could keep the mistakenly provided information. Officials cited as an example the retention of an extra month's phone records, beyond the period specified by the agents.

Case agents are now told that they must identify mistakenly produced information and isolate it from investigative files. "Human errors will inevitably occur with third parties, but we now have a clear plan with clear lines of responsibility to ensure errant information that is mistakenly produced will be caught as it is produced and before it is added to any FBI database," Caproni said.

The FBI also found that in 14 investigations, counterintelligence agents using NSLs improperly gathered full credit reports from financial institutions, exercising authority provided by the USA Patriot Act but meant to be applied only in counterterrorism cases. In response, the bureau has distributed explicit instructions that "you can't gather full credit reports in counterintelligence cases," a senior FBI official said.

In 10 additional investigations, FBI agents used NSLs to request other information that the relevant laws did not allow them to obtain. Officials said that, for example, agents might have requested header information from e-mails -- such as the subject lines -- even though NSLs are supposed to be used to gather information only about the e-mails' senders and the recipients, not about their content.

The FBI audit also identified three dozen violations of rules requiring that NSLs be approved by senior officials and used only in authorized cases. In 10 instances, agents issued National Security Letters to collect personal data without tying the requests to specific, active investigations -- as the law requires -- either because, in each case, an investigative file had not been opened yet or the authorization for an investigation had expired without being renewed.

FBI officials said the audit found no evidence to date that any agent knowingly or willingly violated the laws or that supervisors encouraged such violations. The Justice Department's report estimated that agents made errors about 4 percent of the time and that third parties made mistakes about 3 percent of the time, they said. The FBI's audit, they noted, found a slightly higher error rate for agents -- about 5 percent -- and a substantially higher rate of third-party errors -- about 10 percent.

The officials said they are making widespread changes to ensure that the problems do not recur. Those changes include implementing a corporate-style, continuous, internal compliance program to review the bureau's policies, procedures and training, to provide regular monitoring of employees' work by supervisors in each office, and to conduct frequent audits to track compliance across the bureau.

The bureau is also trying to establish for NSLs clear lines of responsibility, which were lacking in the past, officials said. Agents who open counterterrorism and counterintelligence investigations have been told that they are solely responsible for ensuring that they do not receive data they are not entitled to have.

The FBI audit did not turn up new instances in which another surveillance tool known as an Exigent Circumstance Letter had been abused, officials said. In a finding that prompted particularly strong concerns on Capitol Hill, the Justice Department had said such letters -- which are similar to NSLs but are meant to be used only in security emergencies -- had been invoked hundreds of times in "non-emergency circumstances" to obtain detailed phone records, mostly without the required links to active investigations.

Many of those letters were improperly dispatched by the bureau's Communications Analysis Unit, a central clearinghouse for the analysis of telephone records such as those gathered with the help of "exigent" letters and National Security Letters. Justice Department and FBI investigators are trying to determine if any FBI headquarters officials should be held accountable or punished for those abuses, and have begun advising agents of their due process rights during interviews.

The FBI audit will be completed in the coming weeks, and Congress will be briefed on the results, officials said. FBI officials said each potential violation will then be extensively reviewed by lawyers to determine if it must be reported to the Intelligence Oversight Board, a presidential panel of senior intelligence officials created to safeguard civil liberties.

The officials said the final tally of violations that are serious enough to be reported to the panel might be much less than the number turned up by the audit, noting that only five of the 22 potential violations identified by the Justice Department's inspector general this spring were ultimately deemed to be reportable.

"We expect that percentage will hold or be similar when we get through the hundreds of potential violations identified here," said a senior FBI official, who spoke on the condition of anonymity because the bureau's findings have not yet been made public.

Karl Rove's Big Election Fraud Hoax

At Salon.com, Garrett Epps writes:
By evil chance, I spent the Saturday night before Election Day 2000 at a jolly dinner for high-level Republicans. Most of the talk over the entrees concerned why then-candidate George W. Bush had been too pusillanimous to tell the voters that Al Gore was not just a liberal, but a Soviet-style Marxist-Leninist. But as the desserts circulated, so too did a piece of comic relief -- an anonymous leaflet explaining to voters that because of heavy voter registration, the rules had been changed: Republicans would vote on Tuesday, Democrats and independents on Wednesday.

I think of that dinner whenever I read about the widening scandal of the U.S. attorneys and the politicization of the Justice Department under Attorney General Alberto Gonzales. Gonzo is probably the most endangered man since William Tell's son Walter. The pattern behind the scandal, however, transcends Gonzales' fate or that of his underlings.

At least part of the U.S. attorneys plot seems to derive from the "election fraud" hoax that Republicans are trying to perpetrate in order to gain control of the country's voter lists. So nailing this inept crew of thugs won't be good enough. We need laws protecting the right to vote from the kind of phony, partisan prosecutors that Gonzales, Rove and Co. were trying to put in place, and from the punitive, restrictive voter-ID laws that are a prominent part of the far-right political agenda.

Republicans do cherish their little practical jokes -- the leaflets in African-American neighborhoods warning that voters must pay outstanding traffic tickets before voting; the calls in Virginia in 2006 from the mythical "Virginia Election Commission" warning voters they would be arrested if they showed up at the polls. The best way to steal an election is the old-fashioned way: control who shows up. It's widely known that Republicans do better when the turnout is lighter, whiter, older and richer; minorities, young people and the poor are easy game for hoaxes and intimidation.

The latest and most elaborate of these jokes is the urban legend that American elections are rife with voter fraud, particularly in the kinds of poor and minority neighborhoods inhabited by Democrats. In 2002, Attorney General John Ashcroft announced that fraudulent voting would be a major target of the Department of Justice. As the New York Times reported last month, the main result of this massive effort was such coups as the deportation of a legal immigrant who mistakenly filled out a voter-registration card while waiting in line at the department of motor vehicles.

But the administration has remained ferociously committed to suppressing voter fraud -- as soon as it can find some. In April of last year, Karl Rove warned a Republican lawyers' group that "we have, as you know, an enormous and growing problem with elections in certain parts of America today. We are, in some parts of the country, I'm afraid to say, beginning to look like we have elections like those run in countries where the guys in charge are, you know, colonels in mirrored sunglasses. I mean, it's a real problem.

"I appreciate that all that you're doing in those hot spots around the country to ensure that the ballot -- the integrity of the ballot is protected, because it's important to our democracy."

One of the aims of the abortive purge of U.S. attorneys was to punish those who refused to toe the line on the new emphasis on alleged voter fraud. A few fired prosecutors would serve as examples to the rest –- either move to criminalize the election process or face dismissal.

But the assault on voter fraud was a solution looking for a problem. As part of the Help America Vote Act, Republicans insisted on creating the Election Assistance Commission, which commissioned studies of the asserted problem. When the studies failed to turn up evidence of fraud nationwide, appointed Republican officials on the EAC insisted that the language say only that "there is a great deal of debate on the pervasiveness of fraud in elections" -- the same approach to inconvenient evidence that's made the Bush global-warming policy the envy of the world.

The legend of massive voter fraud forms the backdrop to enactment of harsh voter-ID laws. As previously recounted in Salon, a state voter-ID law in Missouri nearly prevented the Democrats from retaking the U.S. Senate -- a prime example of how the voter fraud narrative was used to sell a law intended to keep Democrats from the polls.

In November 2000, Missouri Republican John Ashcroft lost his Senate seat in a close election in which the votes of African-Americans from St. Louis were crucial. Ashcroft's next job was U.S. attorney general. The Department of Justice and Missouri's two U.S. attorneys soon undertook multiple voter fraud investigations. They probed the 2000 election, the 2001 mayoral primary in St. Louis, and the 2004 election, convicting a total of four people. The resulting specter of fraud was used to float a voter-ID law in the Republican-dominated state Legislature, which was finally passed in May 2006.

By then, President Bush had already used a Patriot Act loophole to dispatch Bradley Schlozman, who had supervised the voting section of the DOJ's Civil Rights Division, to Kansas City as the Western District of Missouri's new U.S. attorney. Less than a week before Election Day 2006, Schlozman indicted four people for voter fraud. Schlozman's endeavors were first spotlighted by Salon in a report on March 21, helping to make him the target of increasing blogger and media scrutiny. As one former senior Justice official told Salon then, Schlozman's appointment had senior Justice Department officials "scratching their heads" because Schlozman "was not a very well-regarded trial attorney."

In the end, the voter-fraud scare didn't help Missouri Republicans. Schlozman may have been filing indictments, but the state Supreme Court had struck down Missouri's new voter-ID law a month before the election, finding that it contravened the state constitution. On Nov. 7, Democrat Claire McCaskill defeated incumbent Republican Jim Talent by fewer than 50,000 votes out of more than 2 million cast. The voter-ID law would've required about 170,000 registered voters to apply for a new ID just to be allowed to vote again.

We can't count on the U.S. Constitution to protect the election process. The Constitution does not explicitly protect the right to vote, and the conservative majority on the Rehnquist and Roberts courts has proved friendly to anti-turnout measures. As Mark Graber of the University of Maryland pointed out recently, the court echoed right-wing rhetoric about voter fraud in a little-noticed 2006 opinion allowing Arizona to implement its restrictive voter-ID law. "Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised," the court's per curiam opinion stated. This is the argument that voter-restrictionists have fallen back on. There may be no voter fraud, but if people think there is, then we should tighten up anyway. That's the argument used in Missouri (with support from the White House), where studies showed elections were mostly clean. As Graber noted, to restrictionists, "such a 'feeling' offsets the interests of voters who are disenfranchised by voter-ID laws by actually driving honest citizens out of the democratic process!"

So we can't count on federal courts; and not every state constitution contains a guarantee as specific as Missouri's provision guaranteeing the vote to "all citizens of the United States." In 2007, the right to vote is a little like the swimmers in the film "Open Water" -- still afloat, but encircled by hungry sharks who sooner or later will move in for the kill.

The answer is in the hands of the new Democratic majority in Congress. Though most Americans believe that the states are in sole charge of voting and elections, the framers at Philadelphia recognized that state officials might abuse their authority over voting. That's why Article I, Section 4 of the Constitution gives states the initial power to supervise federal elections -- but adds that "Congress may at any time by Law make or alter such Regulations." This provision was hotly debated during ratification; but federalists insisted that Congress needed this backstop power to protect the republican character of the new government against state meddling.

The new Congress so far has considered only a few measures to protect the right to vote: Rep. Rush Holt, D-N.J., has proposed a bill to require voting machines to keep paper trails; Sen. Barack Obama, D-Ill., wants to outlaw certain deceptive practices aimed at voter suppression.

But such defensive measures amount to little more than swatting sharks' noses. We're going to need a bigger boat. In the 1970 case of Oregon v. Mitchell, a fractured court approved a statute lowering the voting age to 18 in federal elections, even if states insisted on keeping it at 21 for state voting. (The 26th Amendment subsequently lowered the age to 18 for all elections.) How about a bill making clear that every American who is not under active sentence for felony has a right to vote for those who will govern the country? The bill could go on to say that states could require reasonable identification for new registrants, but outlaw onerous provisions like Missouri's, which would, for example, have required that married women produce legal documentation of their name change. (I reviewed the Missouri law with my mother, who has voted in every election since 1944. We determined that, had she lived in Missouri, she would have been barred from the polls in 2006.)

For that matter, why not just move the entire country to the vote-by-mail system we use in my home state of Oregon? It's quick, it's convenient, it leaves a paper trail, and we have had no credible accusations of voter fraud since it was adopted during the 1990s -- and a stunning 86 percent of registered voters cast ballots in the 2004 presidential election.

Voter fraud is a phony issue, and if restrictionists shape the dialogue, sooner or later our right to vote will become property of the Karl Roves, who will use the machinery of the criminal law to recreate the electorate in their own image.

The real issue is the right of every American citizen to vote, the right of the people to choose their rulers, rather than the reverse. Who can really oppose that, if asked about it in the light of day?

Pentagon Urged To Close Secret Database

Where are the Democrats?:
The Pentagon's new intelligence undersecretary is recommending the Defense Department shut down a controversial classified database that has been criticized for improperly collecting information on anti-war groups and citizens.

James R. Clapper Jr., who stepped into the job two weeks ago, "does not believe they merit continuing the program as currently constituted, particularly in light of its image in the Congress and the media," said Pentagon spokesman Maj. Patrick Ryder.

Clapper forwarded his recommendation to Defense Secretary Robert Gates last week, but no final decision has been made. Gates has been traveling in the Middle East and eastern Europe for most of the last two weeks.

Ryder said the Defense Department needs a way to assess potential threats, "but we must lay to rest the distrust and concern about the Department's commitment to civil rights that have been sustained by the problems found in the TALON reporting system."

The database has been under critical review since it was publicly disclosed in December 2005.

Anti-war groups and other organizations, including a Quaker group — the American Friends Service Committee — protested after it was revealed that the military had monitored anti-war activities, organizations and individuals who attended peace rallies.

Pentagon officials last year said the program was productive and had detected international terrorist interests in specific military bases. But they also acknowledged that some workers may not have been using the system properly.

Known as TALON — or the Threat and Local Observation Notice — the system was developed by the Air Force in the aftermath of the Sept. 11, 2001, terrorist attacks as a way to collect information about possible terrorist threats.

The TALON reports — collected by an array of Defense Department agencies including law enforcement, intelligence, counterintelligence and security — are compiled in a large database and analyzed by an obscure Pentagon agency, the Counterintelligence Field Activity. CIFA is a three-year-old outfit whose size and budget are secret.

Last year, a Pentagon review found that as many as 260 reports in the database were improperly collected or kept there. At the time, the Pentagon said there were about 13,000 entries in the database, and that less than 2 percent either were wrongly added or were not purged later when they were determined not to involve real threats.

U.S. Scandal Threatens Alaska's Prosecutor

Nelson Cohen was appointed U.S. attorney for Alaska in August 2006.

The Anchorage Daily News reports:
The state’s chief federal prosecutor, Pittsburgh native Nelson Cohen, owes his job to the U.S. attorney in his hometown, who succeeded in getting him the Anchorage post over Alaskans nominated by Sens. Lisa Murkowski and Ted Stevens.

But now, the U.S. attorney scandal threatening to topple Attorney General Alberto Gonzales may cost Cohen his job here. His “interim” appointment will vanish when that classification is amended out of the U.S.A. Patriot Act, which is expected to happen in the next few months.

At the same time, Mary Beth Buchanan, Cohen’s well-connected benefactor and former boss, is in trouble herself, with investigators from the House Judiciary Committee wanting to question her over what role she may have played in deciding which U.S. attorneys got fired, allegedly for partisan reasons.

There are no claims that Cohen got his job here to help or hinder political prosecutions in Alaska, as is alleged in New Mexico, San Diego and other areas where U.S. attorneys were replaced. Pittsburgh Democrats who worked with him and defended clients against him described Cohen, a registered Republican, as a skilled career prosecutor who distanced himself from the Bush administration’s agenda.

Nevertheless, Murkowski and Stevens say they are looking for an “Alaskan” to replace him.

Cohen, who spent about a decade in Alaska before returning home to Pittsburgh in 1987, said he’d like to keep the job but is not actively politicking to do so. He’d like to stay in Alaska, he said, but he still owns his house in Pennsylvania. “I did not come here seeking to be a presidential-appointed U.S. attorney,” he said.

ALASKA SENATORS BLINDSIDED

U.S. attorneys in districts across the country manage teams of prosecutors who enforce federal laws on drugs, immigration, natural resources, weapons and taxes, among others. They are also playing an increasing role in counterterrorism efforts.

The U.S. attorney position in Alaska opened Jan. 23, 2006, when Timothy Burgess left to become a U.S. district judge. His first assistant, Deborah Smith, was named acting U.S. attorney that day. U.S. attorneys are typically nominated by the president and approved by the Senate. Traditionally, Alaska’s two U.S. senators send the names of one or more Alaskans to the White House for consideration. Sen. Murkowski said her clear choice was Smith, a career prosecutor who started out in the federal prosecutor’s office in Anchorage in 1982 and worked in Boston and Washington.

Sen. Stevens wouldn’t reveal his choices.

After submitting Smith’s name, Murkowski said in a telephone interview, her legislative director periodically called the White House during the first part of 2006 to check the status of the nomination.

“We’d get these vague, 'Oh, we’re still working on it, still working on it,’ ” Murkowski said. “So it gets to the point where you’re thinking, 'Wait a minute, this has been a heck of a long time. What is happening?’ And so the response to my inquiry is, 'We still haven’t, there’s some issues,’ and ultimately what we got back was, 'The picks were not acceptable by the White House,’ and yet no explanation as to why they’re not acceptable.”

When she was in Alaska for the August 2006 recess, Murkowski’s Blackberry vibrated with a message. It was her chief aide in Alaska, Mary Hughes, citing a media report that Nelson Cohen had been named interim U.S. attorney.

“You just think, 'It can’t be, wait.’ There was no consulting, no process, no nothing. That’s where I was certainly caught blindsided,” Murkowski said.

Stevens, himself a former federal prosecutor in Alaska, was enraged. “I am just furious at the way the attorney general handled this,” he said at the time.

In an interview at his office in the Federal Building last week, Cohen said he was unaware of all the political forces that resulted in his appointment. But he knew his boss, Buchanan, was well-connected, and it was she who told him about the opening in Alaska.

HE LONGED FOR ALASKA

Through a spokeswoman, Buchanan declined a request for an interview. But the Pittsburgh Post-Gazette recently reported that she pushed the White House agenda, prosecuting such targets as famed cinematic pothead Tommy Chong, of Cheech and Chong fame, for selling bongs over the Internet. She also went after pornographers in California.

The Post-Gazette said Buchanan’s office prosecuted a host of public corruption cases - all against Democrats. One of them, former Allegheny County medical examiner Cyril Wecht, was in Anchorage last week to lecture at the University of Alaska.

Wecht, a physician and lawyer in his 70s who is awaiting trial, said it was ridiculous to think that only Democrats were worthy of public corruption cases in western Pennsylvania.

Cohen was Buchanan’s chief deputy for white-collar crime, but Wecht’s attorney, Mark Rush, said he didn’t appear to have a role in Wecht’s case.

“Nelson Cohen is a professional federal prosecutor,” Rush said. “That’s what Nelson Cohen wants to be, and that’s what I think he will do for the rest of his life. I don’t see political ambition.” Tom Farrell, another former Pittsburgh colleague, said of Cohen: “He’s smart, he’s hardworking, very fair.” Years ago, when President Clinton was in office, the attorneys sharply divided on partisan grounds about whether he should be impeached, Farrell said. Cohen was one of the few at the water cooler “who never got heated.” Farrell, a Democrat, said he hadn’t known that Cohen was a registered Republican. What he seemed to be, though, was a man longing to return to Alaska, Farrell said. His office was decorated with photographs and mementos from his 10 years in Anchorage. Cohen’s wife, Colleen, grew up in Fort Yukon and Fairbanks, the daughter of noted Wien Air bush pilot Keith Harrington. Their three children were born in Alaska.

Gonzales named Cohen to the job in Alaska under a provision inserted into the Patriot Act at the request of the White House when the law was amended by Congress in 2006. It allowed interim U.S. attorney appointments to become permanent without Senate approval.

Eight U.S. attorneys were fired, then replaced under that provision. As the scandal unfolded this year, the House and Senate passed bills restoring the previous selection method, but the bills are slightly different and need to be resolved in a conference committee before they become law. President Bush has said he would sign a final bill. According to a statement from Sen. Stevens’ office, Cohen would then lose his appointment.

“Senator Murkowski and I will continue to look for a candidate that we could nominate and who will serve Alaska with distinction,” Stevens said in a prepared statement.

Justice Department: FBI Acted Illegally On Data

Audit finds agency misused Patriot Act to obtain information on citizens

MSNBC reports:

The FBI improperly and, in some cases, illegally used the USA Patriot Act to secretly obtain personal information about people in the United States, a Justice Department audit concluded Friday.

And for three years the FBI has underreported to Congress how often it forced businesses to turn over the customer data, the audit found.

FBI agents sometimes demanded the data without proper authorization, according to the 126-page audit by Justice Department Inspector General Glenn Fine. At other times, the audit found, the FBI improperly obtained telephone records in non-emergency circumstances.

FBI Director Robert Mueller said he was to blame for not putting more safeguards into place.

“I am to be held accountable,” Mueller said. He told reporters he would correct the problems and did not plan to resign.

“The inspector general went and did the audit that I should have put in place many years ago,” Mueller said.

The audit blames agent error and shoddy record-keeping for the bulk of the problems and did not find any indication of criminal misconduct.

Still, "we believe the improper or illegal uses we found involve serious misuses of national security letter authorities," the audit concludes.

Attorney General Alberto Gonzales, who oversees the FBI, said the problems outlined in the report involved no intentional wrongdoing. In remarks prepared for delivery to privacy officials late Friday, Gonzales said that “there is no excuse for the mistakes that have been made, and we are going to make things right as quickly as possible.”

At issue are the security letters, a power outlined in the Patriot Act that the Bush administration pushed through Congress after the Sept. 11, 2001, terror attacks. The letters, or administrative subpoenas, are used in suspected terrorism and espionage cases. They allow the FBI to require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers — without a judge's approval.

About three-fourths of the national security letters were issued for counterterror cases, and the other fourth for spy investigations.

Chief acknowledges deficiencies
In an earlier statement, Mueller called Fine's audit "a fair and objective review of the FBI's use of a proven and useful investigative tool."

The finding "of deficiencies in our processes is unacceptable," Mueller said.

"We strive to exercise our authorities consistent with the privacy protections and civil liberties that we are sworn to uphold," Mueller said. "Anything less will not be tolerated. While we've already taken some steps to address these shortcomings, I am ordering additional corrective measures to be taken immediately."

Fine's annual review is required by Congress, over the objections of the Bush administration.

The audit released Friday found that the number of national security letters issued by the FBI skyrocketed in the years after the Patriot Act became law.

In 2000, for example, the FBI issued an estimated 8,500 letters. By 2003, however, that number jumped to 39,000. It rose again the next year, to about 56,000 letters in 2004, and dropped to approximately 47,000 in 2005.

Over the entire three-year period, the FBI reported issuing 143,074 national security letters requesting customer data from businesses, the audit found. But that did not include an additional 8,850 requests that were never recorded in the FBI’s database, the audit found.

Also, Fine’s audit noted, a 2006 report to Congress showing that the FBI delivered only 9,254 national security letters during the previous year — on 3,501 U.S. citizens and legal residents — was only required to report certain types of requests for information. That report did not outline the full scope of the national security letter requests in 2005, nor was it required to, Fine’s office said.

Additionally, the audit found, the FBI identified 26 possible violations in its use of the national security letters, including failing to get proper authorization, making improper requests under the law and unauthorized collection of telephone or Internet e-mail records.

Of the violations, 22 were caused by FBI errors, while the other four were the result of mistakes made by the firms that received the letters.

Unauthorized signatures
The FBI also used so-called "exigent letters," signed by officials at FBI headquarters who were not authorized to sign national security letters, to obtain information. In at least 700 cases, these exigent letters were sent to three telephone companies to get toll billing records and subscriber information.

"In many cases, there was no pending investigation associated with the request at the time the exigent letters were sent," the audit concluded.

In a letter to Fine, Gonzales asked the inspector general to issue a follow-up audit in July on whether the FBI had followed recommendations to fix the problems.

“To say that I am concerned about what has been revealed in this report would be an enormous understatement,” Gonzales said in remarks prepared for delivery to the privacy officials. “Failure to adequately protect information privacy is a failure to do our jobs.”

Senators outraged over the conclusions signaled they would provide tougher oversight of the FBI — and perhaps limit its power.

"I am very concerned that the FBI has so badly misused national security letters," said Sen. Arlen Specter, R-Pa., top Republican on the Senate Judiciary Committee, which oversees the FBI.

Sen. Russ Feingold, D-Wis., another member of the judiciary panel, said the report "proves that 'trust us' doesn't cut it."

The American Civil Liberties Union said the audit proves Congress must amend the Patriot Act to require judicial approval anytime the FBI wants access to sensitive personal information. “The attorney general and the FBI are part of the problem, and they cannot be trusted to be part of the solution,” said Anthony D. Romero, the ACLU’s executive director.

Justice spokeswoman Tasia Scolinos said Gonzales "commends the work of the inspector general in uncovering serious problems in the FBI's use of NSLs."

Bush steps up Patriot Act campaign

IHT reports:

President George W. Bush assembled a phalanx of U.S. attorneys at the White House on Tuesday to bolster his calls for Congress to renew the anti-terrorism bill known as the USA Patriot Act, intensifying a coming clash with Capitol Hill over civil liberties and national security.

Surrounded in the Roosevelt Room by 19 of the attorneys, Bush charged that Congress was holding up the law because of politics.

"When it came time to renew the act, for partisan reasons, in my mind, people have not stepped up and have agreed that it's still necessary to protect the country," Bush said. "The enemy has not gone away - they're still there. And I expect Congress to understand that we're still at war and they've got to give us the tools necessary to win this war."

The president's remarks and an appearance by the U.S. attorneys in the West Wing driveway afterward were part of a stepped-up White House campaign to make permanent the anti-terrorism bill, which expanded the government's investigative powers after the attacks on Sept. 11, 2001.

The law was originally passed with bipartisan support, but with time limits built in because many lawmakers were nervous about its broad reach; many critics have said that the legislation impinges on civil liberties. In December, with major provisions of the bill set to expire on Dec. 31, the White House aggressively pushed to make the law permanent, but Democrats and a handful of Republicans balked and extended the law for only five weeks, to Feb. 3.

The White House efforts were further complicated by a simultaneous uproar in Congress in December over revelations that Bush authorized a secret spying program to monitor international phone calls and international e-mail messages of people in the United States.

The U.S. attorneys, all Bush presidential appointees summoned to Washington by the Justice Department, echoed Bush when they appeared en masse in front of television cameras on the driveway moments after the president spoke.

Rosalynn Mauskopf, the U.S. attorney for the Eastern District of New York, said the law had made it easier for the Eastern District "to choke off the supply of money to terrorists." Specifically, Mauskopf said, prosecutors had used the law, which broadened federal powers to obtain financial records, to convict the spiritual adviser to Osama bin Laden, Sheik Muhammad Ali Hassan al-Mouyad, as well as Mouyad's assistant, for funneling millions of dollars to Al Qaeda and the militant Islamic group Hamas.

Administration and congressional officials said they expected a compromise on the bill between the White House and members of both parties on Capitol Hill. In mid-December, the House did pass a measure to make 14 of 16 expiring provisions in the Patriot Act permanent, but that bill got bottled up in the Senate, eventually leading Congress to enact only the five-week extension.

Senator Charles Schumer, Democrat of New York, who had voted to block the permanent renewal of the Patriot Act in part because of the revelations about the spying program, said Tuesday that there was room for a deal.

"Look, this is one that should be able to be worked out, because the sides are relatively close," Schumer said.

One of the main sticking points is a provision giving the federal government the power to demand access to library records on what material people have borrowed and other information showing reading habits. The provision was challenged in a lawsuit in Connecticut by the American Civil Liberties Union.

The other main sticking point is an administrative subpoena, called a national security letter, that lets the federal government demand records without a judge's approval.

U.S. Attorneys Discuss Patriot Act Meeting with the President

Six United States attorneys met with President Bush to discuss the Patriot Act prior to Congress vote this week to reauthorize it. After their meeting, they held a press conference:

Ken Wainstein, U.S. Attorney, District of Columbia
Carol Lam, U.S. Attorney, Southern District of California
Michael Garcia, U.S. Attorney, Southern District of New York
Roslynn Mauskopf, U.S. Attorney, Eastern District of New York
Mary Beth Buchanan, U.S. Attorney, Western District of Pennsylvania
Debra Wong Yang, U.S. Attorney, Central District of CaliforniaTranscript:

WAINSTEIN: Good afternoon.

My name is Ken Wainstein. I'm the U.S. attorney here in Washington, D.C., and I'm here with a number of my U.S. attorney colleagues from around the country. And we just had a meeting with the president about the Patriot Act.

He asked us to give him our input about the importance of the Patriot Act to our investigations and our criminal cases and national security cases around the country.

We told him that we use it each and every day to protect our country against terrorists and criminals, and though there are only 20 of us here today, I can assure you that every other one of the 93 U.S. attorneys uses the Patriot Act tools each and every day in his or her efforts.

The president -- we are very grateful that the president heard out our concerns and we're very grateful that he appreciates the vitality, the centrality of these authorities and importance of these authorities in our efforts to protect the country against terrorists.

It's also important to note, and he recognizes as well, that the Patriot Act has been critical in other non-terrorist criminal cases around the country.

And to give you some anecdotes about how important the Patriot Act has been over the last few years, some of my colleagues are going to tell you about some of the cases in their districts.

Thank you.

Carol Lam, U.S. attorney in the Southern District of California.

LAM: Good morning.

This morning I briefed the president on a case that we have in San Diego involving a weapons-for-drugs deal that was taken down in an undercover operation.

As many of you know, before the Patriot Act, sharing was not permitted between an ongoing foreign intelligence wiretap and criminal prosecution. This created, unfortunately, a situation where people had to choose, law enforcement had to choose between either pursuing an intelligence investigation or a criminal investigation.

With the Patriot Act, we are now permitted to share that information so if an intelligence investigation is going on and evidence of a crime is revealed, that information can be shared with criminal investigators and criminal prosecutors so that, that information and evidence can be used in a criminal prosecution.

In San Diego, this case involved three individuals, weapons dealers who were interested in taking Stinger missiles from undercover FBI agents and reselling them to Al Qaida and the Taliban. In return, they were going to give 600 pounds of heroin and five metric tons of hashish to the undercover FBI agents. As weapons for drug deals shows the narcoterrorism that's going on in the world today.

With Section 218, the information-sharing provisions of the Patriot Act, we were able to share information and that resulted in the undercover operation that took these dangerous individuals out of commission.

Thank you very much.

GARCIA: Thank you.

Mike Garcia from the Southern District of New York.

I spoke to the president this morning about cases that we had in New York back in the 1990s, and I was a prosecutor then and I saw firsthand the effect of the wall, the wall between the intelligence investigations and the criminal investigations, when we were prosecuting some of the major terrorism cases at that time.

Specifically, we spoke about the Rahman case, the blind cleric who was charged with a plot to blow up landmarks in New York City.

When that investigation was launched, it was an intelligence investigation and the prosecutors and the criminal agents were walled off from that information until the last minute when, by luck and extraordinary effort, enough information came over that wall to enable us to prosecute Sheikh Rahman and his followers and to convict them of terrorism charges.

And I contrasted the rules that we had to operate under in the '90s in the Sheikh Rahman case with the rules that we have today under the Patriot Act, where sharing is the rule and not the exception that comes about by luck and personal relationships, that somebody mentions something and, by hard work, you can follow up and get enough information.

Now, we have a process for sharing information.

And that was evident in the case that involved Sheikh Rahman's attorney, Lynn Stewart, his translator, and another associate, Sitar (ph), that was recently prosecuted in the Southern District under the new sharing rules of the Patriot Act, where we can expend our energy actually investigating and prosecuting terrorists and not trying to determine how agents of the same government can share information about terrorists.

Thank you very much.

MAUSKOPF: I'm Roslynn Mauskopf, the United States Attorney for the Eastern district of New York.

In addition to bullets and bombs, money is the lifeblood of terrorists. And, in the Eastern district of New York, we have used the Patriot Act and many of its provisions to choke off the supply of money to terrorists.

In one case prosecuted in the Eastern District of New York, we used the Patriot Act to secure convictions of Mohammed Al-Moayad and Mohammed Zayed.

Both of these individuals were Yemeni citizens. And Mohammed Al- Moayad was the self-proclaimed spiritual adviser to Osama bin Laden.

Using the provisions of the Patriot Act, we were able to convict these two individuals of material support of terrorism, for funneling over $20 million to Al Qaida and Hamas.

And these two individuals didn't stop there. They were seeking to raise millions of dollars more in support of terrorism.

With the help of the Patriot Act provisions, these two terrorists financiers are now in federal prison, each serving 75 and 45 years in prison, respectively.

Without the provisions of the Patriot Act, we would not have been able to build and prove this case against these two master terrorist financiers.

BUCHANAN: Today, we met with the president and we talked about cases ranging from international terrorism to criminal activity throughout our country. We talked about narcotics trafficking cases. We talked about child exploitation and domestic terrorism.

Section 212 of the Patriot Act was used in Western Pennsylvania -- and I am Mary Beth Buchanan, the U.S. attorney for Western Pennsylvania -- we used Section 212 of the Patriot Act to rescue a 13- year-old child who had been taken from her home in Pittsburgh and abducted by a 38-year-old child molester.

Without the Patriot Act, we would not have been able to get critical information that we needed from an Internet service provider, who in the middle of the night was able to give us information on an emergency basis to help us to rescue this child from her captor's home in Virginia.

We also talked about a domestic terrorism case involving an imperial wizard of the Ku Klux Klan who had obtained explosive bombs and devices, and he planned to obtain hand grenades and blow up abortion clinics.

Without the Patriot Act, we would not have been able to get a wiretap to get evidence against this individual to successfully prosecute him.

As you can see, the Patriot Act is extremely vital to United States attorneys across the country to protect our nation from terrorism and from criminal activity of every type.

At this time, we're happy to take your questions.

QUESTION: The administration has portrayed this as somewhat of a partisan debate. And, obviously, all of you are here in support of the provisions in question. Do you feel like there are any legitimate issues when it comes to some of these provisions, that they go beyond the protection of civil liberties, that some of your colleagues who aren't here do have a legitimate case to bring up those concerns?

BUCHANAN: We support the conference report. We believe that this report gives us the adequate tools that we need to investigate terrorism and to protect the people from criminal activity. We believe that this provides adequate safeguards in every respect, and we fully support this report. And we would ask Congress to enact this legislation and to make the Patriot Act permanent to give us the tools that we need.

QUESTION: Is there anything in the Senate bill that would make that version unworkable from your perspective?

WAINSTEIN: We're just going to say that as to the conference report, we support it fully. We support the tools it provides, how it builds on the original Patriot Act and the safeguards that are included in it, and we're fully in support of it.

QUESTION: I have a question for Debra Wong Yang. When the Patriot Act was originally passed in 2002, it beefed up the FISA court. It streamlined it. It tripled the amount of time that was available from 24 to 72 hours for prosecutors who had to go to the FISA court to get the permission for wiretaps. It (inaudible) there were a number of ways in which it strengthened and streamlined and made more agile the FISA court.

Does the president's willingness to go around the FISA court since then bypass the FISA court and entirely make it more difficult to pass this reauthorization, in your opinion, of the Patriot Act? Has the Patriot Act addressed the problems that you all as prosecutors had with FISA courts?

YANG: Well, I think that the Patriot Act does address all the problems that we need to and with all the changes and safeguards. I mean, there are other mechanism that are in place because we are in the midst of doing a number of things and looking at a number of individuals.

I don't want to say, in particular to that particular issue. But with respect to the Patriot Act, I don't think it's harmed us at all. In fact, his support has been a great -- I guess a great thing that we can use in trying to fight the war on crime in all aspects.

QUESTION: Are you as a prosecutor comfortable with the notion of warrantless wiretapping that on one end involves somebody who's an American citizen or somebody in the United States?

YANG: I think that there are certain things that we need to do, given the time and the place that are in history, if we want to protect our country and we want to do it adequately.

QUESTION: Was there any discussion of that issue in your meeting with the president?

YANG: I'm not at liberty to answer that, sir.

QUESTION: I'm sorry?

YANG: I'm not at liberty to answer that.

QUESTION: Can I ask (inaudible) from the White House, Fran Townsend invited you down, (inaudible)?

WAINSTEIN: We coordinated this through the Department of Justice. We talked to them last week and we were all very grateful to have this indication and to have the opportunity to talk to the president about our concerns about how important the Patriot Act is to us and our colleagues at the U.S. Attorneys Offices.

QUESTION: Did you reach (inaudible) at the Justice Department?

WAINSTEIN: It was just -- I got an e-mail from the folks in the department who arranged things, and I called back and we got it all set up just as we set up any meetings.

QUESTION: Can I ask why you feel like you're not at liberty to talk about whether the issue of (inaudible) surveillance program was talked about? Why do you not feel free to talk about that?

(UNKNOWN): (OFF-MIKE)

WAINSTEIN: Let's just say we're here today to talk about the Patriot Act. It's very important to our operations. We're focused on that. We want the country to be focused on it. We want the government to be focused on it. We want Congress to be focused on it.

So we really want to stick with the Patriot Act and how important it is to us.

Thank you.

FBI Seeks Expanded Search Powers

MSNBC.com reports:
FBI Director Robert Mueller on Tuesday asked lawmakers to expand the bureau’s ability to obtain records without first asking a judge, and he joined Attorney General Alberto Gonzales in seeking that every temporary provision of the anti-terrorism Patriot Act be renewed.

“Now is not the time for us to be engaging in unilateral disarmament” on the legal weapons now available for fighting terrorism, Gonzales, for his part, told senators.

He said that some of the most controversial provisions of the Patriot Act have proven invaluable in fighting terrorism and aiding other investigations. “It’s important that these authorities remain available,” Gonzales told the Senate Judiciary Committee.

Mueller said sections of the law that allow intelligence and law enforcement agencies to share information are especially important.

“Experience has taught the FBI that there are no neat dividing lines that distinguish criminal, terrorist and foreign intelligence activity,” Mueller said in his prepared testimony.

He also asked Congress to expand the FBI’s administrative subpoena powers, which allow the bureau to obtain records without approval or a judge or grand jury.

"For many years, the FBI has had administrative subpoena authority for investigations of crimes ranging from drug trafficking to health care fraud to child exploitation," he stated. "Yet, when it comes to terrorism investigations, the FBI has no such authority."

15 Provisions at Stake
The Patriot Act is the post-Sept. 11 law that expanded the government’s surveillance and prosecutorial powers against suspected terrorists, their associates and financiers. Most of the law is permanent, but 15 provisions will expire in December unless renewed by Congress.

On the same day Gonzales was speaking to the Senate committee, Sens. Larry Craig, R-Idaho, and Dick Durbin, D-Ill., planned to reintroduce legislation designed to curb major parts of the Patriot Act that they say went too far.

“Cooler heads can now see that the Patriot Act went too far, too fast and that it must be brought back in line with the Constitution,” said Gregory Nojeim, associate director of the American Civil Liberties Union’s Washington legislative office.

The ACLU is part of an unusual coalition of liberal and conservative groups, including the American Conservative Union, that have come together in a joint effort to lobby Congress to repeal key provisions of the Patriot Act.

'Library provision' is controversial
Among the controversial provisions is a section permitting secret warrants for “books, records, papers, documents and other items” from businesses, hospitals and other organizations.

That section is known as the “library provision” by its critics. While it does not specifically mention bookstores or libraries, critics say the government could use it to subpoena library and bookstore records and snoop into the reading habits of innocent Americans.

Gonzales told lawmakers Tuesday the provision has been used 35 times, but never to obtain library, bookstore, medical or gun sale records.

But the criticism has led five states and 375 communities in 43 states to pass anti-Patriot Act resolutions, the ACLU says.

Even some Republicans are concerned. Senate Judiciary Chairman Arlen Specter, R-Pa., has suggested it should be tougher for federal officials to use that provision.

Gonzales already has agreed to two minor changes to the provision, and was expected to support giving someone who receives a secret warrant under the provision the right to consult a lawyer and challenge the warrant in court. He was expected to also back slightly tightening the standard for issuing subpoenas.

Bigger concerns
Neither change addresses the central concern of opponents, which is that it allows the government to seize records of people who are not suspected terrorists or spies.

Critics say the law allows the government to target certain groups, but the Justice Department counters that no Patriot Act-related civil rights abuses have been proven.

Just in case, Craig and Durbin want Congress to curb both expiring and nonexpiring parts of the Patriot Act, including the expiring “library” provision and “sneak and peek” or delayed notification warrants. Those warrants — which will not expire in December — allow federal officials to search suspects’ homes without telling them until later.

The Justice Department said federal prosecutors have asked for 155 such warrants since 2001.

That's just two-tenths of one percent of all search warrants, but their use is growing. The warrants were sought 47 times between the time the law was passed and April of 2003. Since then, it's been invoked 108 times.

Gonzales also notes that the law has been used in non-terrorism cases. For example, federal officials used it to track over the Internet a woman who ultimately confessed to strangling a pregnant woman and cutting the fetus from her womb.

And such searches have been allowed for years in drug and organized crime cases.