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Fight Over Court Role In U.S. Wiretapping

Saturday, October 13th, 2007

By Peter Grier

While Bush Seeks To Limit Court OKs For Spying, Democrats Fight For More Judicial Oversight

To what extent should courts become involved in the oversight of sensitive U.S. eavesdropping operations?

That is one of the most crucial items at issue in the developing struggle between congressional Democrats and the White House over new legislation to extend the government’s surveillance authority.

Key House Democrats say judges should look over the National Security Agency’s shoulder more often. Under a bill approved by two House committees Wednesday, if the NSA wants to listen in on foreigners outside the United States but a possibility exists that these targets might communicate with Americans, then the government needs to get a blanket court order approving the effort for up to a year.

The Bush administration says that provision could hobble American intelligence. In practical terms, it’s always possible that foreign targets might call the U.S., say U.S. officials. Thus, the NSA might have to get court approval even for wiretapping operations aimed at foreign-to-foreign communications.

“That is something that gives us a lot of concern, that we would have to go to a [court] to get these approvals in an area where we really need flexibility,” said Kenneth Wainstein, assistant attorney general for the national security division, in a conference call with reporters Wednesday. “We need to be nimble, and we need to be able to move around to get these surveillances.”

The battle over the wiretap bill promises to be one of the most difficult and protracted legislative efforts of the current Congress.

That’s partly because of politics. Democrats on Capitol Hill are under pressure from civil liberties advocates and others who believe lawmakers gave intelligence agencies too much latitude in a temporary bill hastily passed before Congress’s summer break.

Meanwhile, the White House has not been shy about invoking the specter of possible future terrorist attacks in its defense of the status quo.

Powers granted by the temporary legislation - which expires in February 2008 - have allowed intelligence professionals “to gather critical information that would have been missed with this authority,” said President Bush Wednesday. “Keeping this authority is critical to keeping America safe.”

House leaders defended their effort as one that strikes an appropriate balance between civil liberties and national security concerns.

“What the terrorists fear most is our constitution and our values, and that is what this bill protects,” said Rep. John Conyers (D) of Michigan, chairman of the House Judiciary Committee.

But the struggle over the bill is also complex, because the law is unusually dense - and because the pace of technological change has made electronic espionage more involved.

Last year’s temporary update, for example, closed what all involved labeled a dangerous gap in intelligence authority, by allowing the NSA to snoop on communications between foreigners even if those communications pass through U.S. electronic networks, as many e-mails do.

Plus, the underlying activity here is classified, which does not make consideration of the bill easier.

Lawmakers outside the circle of Intelligence Committee members may not fully know the extent of NSA’s wiretapping - or how important it is or is not - when they vote on the program. Take legal immunity for telecommunications firms - another controversial part of this legislation.

The Bush administration badly wants Congress to approve legal immunity for any past actions private utilities undertook to aid NSA spying. Currently, AT&T and Verizon, among other firms, face a number of lawsuits brought by privacy advocates who claim that, by allowing the government access to their data streams, the companies have participated in illegal eavesdropping.

NSA officials have gone so far as to worry that these suits could bankrupt the firms. Bush says he will not sign any new eavesdropping bill that does not provide immunity.

Currently such a provision isn’t in the bill. But Democratic leaders say they’d be glad to discuss immunity - if the administration turns over internal records detailing exactly what the communications firms did.

Otherwise Congress would be in the position of providing “blind immunity,” said Rep. Steny Hoyer (D) of Maryland, House majority leader.

Civil liberties proponents bitterly oppose the amnesty effort.

“Why is the president of the United States trying to get the telecommunications companies off the hook for their illegal activity?” says Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union. “He is supposed to be upholding laws, not encouraging companies to break them.”

Other aspects of the legislation which the White House wishes to change include its expiration date. The bill sunsets in 2009, while the administration wants a permanent extension.

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911 tapes: Airport police hide woman’s death from husband

Saturday, October 13th, 2007

David Edwards and Muriel Kane

CNN is reporting that 911 tapes from the night Carol Gotbaum died in custody at the Phoenix airport show that her husband was frantically trying to warn airport workers that his wife was alcoholic, suicidal and deeply depressed, but neither the airport dispatcher nor the police told him his wife had died an hour earlier.

“I want somebody who’s professional to be talking to him and not just blow it to him over the phone because I don’t know how he’ll react,” said one individual speaking on the tapes.

Phoenix police insisted to CNN that Noah Gotbaum was not informed of his wife’s death because their protocol is to finish a preliminary investigation before notifying next of kin.

The distraught Gotbaum became disorderly after being told she could not make her flight to a treatment center on September 28. She was wrestled to the ground and handcuffed by airport police, who left her alone in a holding cell, where she was found dead a short while later. Gotbaum’s brother-in-law called her treatment “inhumane.”

Phoenix police initially claimed Gotbaum must have strangled herself while trying to get out of the handcuffs, but the actual cause of death is still unknown.

The following video is from CNN’s American Morning, broadcast on October 12, 2007.

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Congress pledges to support CIA probe

Saturday, October 13th, 2007

By PAMELA HESS

Key members of Congress vowed Friday to defend the independence of the CIA’s inspector general and to put an end to the agency’s probe of its own internal investigator.

Sen. Ron Wyden, D-Ore., asked Director of National Intelligence Mike McConnell in a letter to terminate the investigation of the conduct of CIA Inspector General John Helgerson.

“I just don’t want to see the intimidation of inspector generals in Washington, D.C., and I’m of the view that people who know that they’re doing the right thing aren’t afraid of oversight,” Wyden, a member of the Senate intelligence committee, said in an interview with The Associated Press.

“The initiation of this investigation, if accurately reported, is troubling,” House Intelligence Committee Chairman Silvestre Reyes, D-Texas, said in a statement.

Congress overhauled the inspector general’s office to be an independent watchdog for the agency nearly two decades ago, Reyes noted, saying it would now “very aggressively preserve” that independence.

The CIA confirmed Thursday that its director, Gen. Michael Hayden, had ordered the internal review. In a series of reports on the agency’s conduct before and after the Sept. 11 attacks, Helgerson has criticized senior figures at the spy agency, including former Director George Tenet and officers involved in the CIA’s detention of terrorist suspects.

Wyden has been among the legislators pressuring the CIA to release those IG reports.

“Hayden fought me every step of the way in doing that,” he said. “When it came out Hayden basically said the IG was all wet, he was wrong on key points but he didn’t even say why he didn’t agree with the work of IG,” Wyden said.

Word of the probe touched off a bipartisan wave of concern among the agency’s congressional overseers that the CIA is trying to muzzle one of its sharpest critics and the only officially independent voice inside the secretive agency.

The Senate panel’s top Republican, Kit Bond of Missouri, said he also would “make sure that nothing is done to restrain or diminish” the inspector general’s office. Bond said in a statement that the CIA “has a track record of resisting accountability.”

Rep. Dutch Ruppersberger, D-Md., a House intelligence committee member whose district includes the National Security Agency, said CIA Director Gen. Michael Hayden made a mistake in launching the inquiry.

“When you are working in the clandestine arena you need to make sure the CIA is following the law and procedures set in place. That’s the purpose of the IG. It makes the agency stronger,” Ruppersberger said in an interview.

Reyes is to meet with the CIA leadership next week to discuss the matter. The House intelligence committee had been unaware of the investigation until it was reported Friday in The New York Times and the Los Angeles Times, said committee spokeswoman Kira Maas. Wyden said he also was not briefed.

CIA spokesman George Little said Friday concerns about the independence of the office are unfounded.

“This is a straightforward management review, nothing more. The authorities and independence of the Office of Inspector General are not in question. Taking a fresh look at the vital work that office does, and, if need be, offering constructive suggestions for the OIG itself to consider, can only strengthen oversight at the CIA. It’s ridiculous to suggest that this is in any way an attack on the concept of a vigorous system of inspection and investigation.”

The CIA review is being led by Robert Deitz, senior counsel to Hayden and the general counsel at the National Security Agency when Hayden was NSA director.

Helgerson has been highly critical of the CIA. In a report in August, for example, he concluded that Tenet and other senior leaders never developed a comprehensive plan to stop al-Qaida and missed crucial opportunities to thwart two hijackers in the run-up to the Sept. 11 attacks. Under congressional orders, the agency recently declassified portions of the embarrassing findings.

Helgerson has also been highly critical, in classified reports, of the agency’s treatment of detainees.

The newspaper reports said the review was focusing on complaints that Helgerson’s office has not been impartial and has assumed guilt on the part of agency operatives, particularly those who participated in the agency’s detention programs.

Hayden’s probe is highly unusual because it deviates from normal government processes. When agencies have issues with the conduct of their inspectors general, the standard procedure is to file a complaint alleging “gross misconduct” with a special panel at the White House Office of Management and Budget. If that panel finds merit in the complaint, it refers it to an inspector general at another federal agency for full investigation.

Hayden also could have taken his objections to President Bush, who appointed Helgerson, Ruppersberger said.

“Now that this is out in the media it doesn’t look good for anybody,” Ruppersberger said.

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This entry was posted on Saturday, October 13th, 2007 at 3:22 pm and is filed under Surveillance, Civil Liberties & Human Rights News . You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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