スパイの格子を拡大するのに使用されるCyberの攻撃の恐れ

によって 山景色のAshlee Vance

他の国の調査のない内容は、NSA (国家安全保障代理店)今米国の大統領からのGeorge Bush新しい指令への自身の政府関係機関の感謝をつける。

新しい指針の下で、NSAおよび他の情報機関はインターネット網にの退屈することができる すべて 同等者。 ブッシュ政権は外国からの米国に対して、多分指示されたcyberの攻撃の数の増加を指すことによってこのスパイの拡張をしのいだ。 国家情報(ODNI)のあるディレクターのオフィスはこれらの攻撃の源の識別のまわりで自国の保安および米国国防総省の部門は報復に集中するが、努力を先導する。

The Washington Post 分類されて残る新しいブッシュ導かれた共同指令についてのニュースを壊すようである。 ペーパー reported 指令-国家安全保障の大統領指令54/Homelandの保証大統領指令23 1月に-は署名したこと。 8. からのより早いレポート ボルティモア・サン NSAの計画を調査する国際的な詮策の義務に米国を加えるために文書化した。

新しいプログラム意志は-当然-米国の貴重品箱からのドルの下水管の十億ブッシュ2009の予算の部分であり。

ブッシュの大統領任期中、米国の市民は前例のない調査の政体の下に来た。 疑われた犯罪者の焦点を持ち上げることに加えて、管理は平均JoesおよびJanesの電話を盗聴するためのシステムを可能にした。 政府はまた信じられないい速度で巨大なデータベースを捜すことができるCrayのような会社からの専門にされたコンピュータに資金を供給している。 スターリンだけ私達に今会うことができれば、Ah。

政府はNSAの力を拡大するための原動力として州、商業、防衛および自国の保安部に対してcyberの攻撃を指す。 「米国。 中国のウェブサイトが国の核エネルギーの実験室および大きい防衛関係の請負業者のいくつかを含んで2005年に戻って最も大きい攻撃の複数に」、かかわったことを役人およびcyber保証専門家は言った ポスト 報告される。

Critics of the new directive will point to the NSA’s ability to operate in total secrecy as cause for concern.

More troubling, however, may be the Pentagon and Homeland Security’s aspirations to hit attackers with counter-strikes.

Proving that a nation rather than a rogue set of attackers are behind a cyber attack will likely be very difficult. In addition, the international community has yet to address the rules of cyber war in any meaningful way. ®

Just learned following within the past few days:

Certain privacy/full session SSL email hosting services have been purchased/changed operational control by NSA and affiliates within the past few months, through private intermediary entities.

Hushmail: now fully owned by private entity NSA affiliate; has had informal relationship with NSA for a number of years that effectively provided NSA with real time access to Hushmail’s hosting servers.

Safe-mail.net: Israeli-based, ironically privately lauded by NSA and US military several years ago for its sound implementation of SendMail with SSL webmail GUI frontend. Now provides mail server info to NSA in real time.

Guardster.com (SSH/SSL proxy): NSA contractors have “bought” full access rights to Guardster servers a few days ago. Separate but related: faciliated port sniffing of hosting servers at Everyones Internet, on NSA affiliates’ behalf, has been ongoing for a number of months now.

More info on industry Windows security software:

Zone Alarm, Symantec, MacAfee: All facilitate Microsoft’s NSA-controlled remote admin access via IP/TCP ports 1024 through 1030; ie will allow access without security flag. Unknown whether or not software port forward routing by these same programs will defeat NSA access.

I will continue to provide more info on the above and related topics upon discovery.

http://cryptome.org/nsa-ssl-email.htm

By Ralph Lopez 

Missing from the debate over expanding NSA authority in the War on Terror is the simple question, beyond our reflexive desire for privacy: why is expanding this authority such a bad idea? We know the Feds have done nasty, un-American things like spy on activists like Martin Luther King, but it comes out in the wash, doesn’t it? Did the Founders, who took pains to enshrine freedom from “unreasonable search and seizure,” without “probable cause,” understand what the Stasi, Hitler, and the KGB all understood? That knowledge is power, and absolute knowledge of peoples’ lives becomes absolute power?

The origin of the Fourth Amendment of the Bill of Rights, which Congress has been merrily gutting since the Patriot Act, was the hated “general warrant” which allowed British soldiers to enter a colonial’s home, barn, and property in search of anything suspicious. It was a principle cause of the Revolution. Could the Founding Fathers, a bunch of old white guys versed in the Greek and Latin classics, philosophy, mathematics, and history, have grasped the significance of a monopoly of information in the hands of the government, which already possesses a monopoly of force?

The Stasi Patriot Act was written long before 9/11. As Congressman Jim McDermott said, “they had all this on the shelf somewhere, ideas of things they would like to do and they got 9/11 and they said “its our chance, go for it!”"

Remember, what we are talking about is not the power to spy on terrorists. The government already has that. They can flip the switch immediately if they think anything is going down. They just have to get a warrant within 48 hours. That’s after the fact. Bush lies when he implies the Constitution is outdated because sometimes there’s no time to get a warrant. It shows what he really wants: no one looking over his shoulder whatsoever.

Wonkette

Hey, kids! Have you ever wanted to listen in on the conversations of other people without them knowing it? Create codes that allow spies in the field to get information about enhanced interrogation techniques without those killjoys at Amnesty International finding out?

Dress up as a totally extreme rapping turtle and get a blow job from a sexy lady squirrel? Well now you can, thanks to the Cryptokids― the NSA’s new program for young people and furfans.

The Web site, with detailed biographies of its cadre of rad furry spies, has had so much more effort put into it than we’re comfortable thinking about.

But it’s important to recruit children into the spy apparatus, as it’s the best way to get info on the parents. We call them “nature’s hidden listening devices”! As for the furries, well: do you want that fat sweaty guy in the raccoon suit working for us … or for the terrorists?

Do you have an FBI file?

You might! Many people do. So let’s talk about your past. Did you …

… ever participate in a civil rights march? How about a Vietnam war protest?

… ever sign an edgy political petition?

… ever know a guy named “Joey the Horse?” (Ever help him take out any heavy garbage bags?)

… ever hang out with a third-world dictator, retired or present?

Phil says: “The Freedom-of-Information-loving folks who brought you Get Grandpa’s FBI File have just launched a sister site: Get My FBI File . This site helps you automatically generate the letters you need to send in to get your own FBI file … and while you’re at it, you can also get your NSA, CIA, DIA, DSS, Secret Service, etc. files too, just by checking a few boxes. If you throw in UnSecureFlight.Com, we’re getting perilously close to one-stop shopping for all your government security file needs.”

See: http://www.getmyfbifile.com/ and http://www.getmyfbifile.com/form.php

The US National Security Agency now has the legal right to monitor some 38% of the world’s telephone, data and internet traffic without requiring a judicial warrant.By Ian Grant

George W Bush signed the relevant legislation last Sunday.

According to Telegeography, a research firm that monitors telecommunications traffic flows, some 38% of the world’s total telecommunications traffic starts or finishes in the US. This is down slightly from 43% in 2003.

“In 2005 (the latest year for which we currently have voice traffic data), approximately 29% of non-US voice traffic transited through a US hub. This is up noticeably from the 20% share in 2002,” said Tim Stronge, a Telegeography spokesman.

“This only includes traditional, circuit-switched international voice traffic. If one includes voice traffic carried as Voice-over-IP (VoIP), the number would likely be around 33%,” he added.

Stronge said his firm does not collect data on satellite traffic, but said no more than 1% or 2% of telecoms traffic went over satellite links.

“Fibre-optic network infrastructure is, bit-for-bit, far cheaper than satellites, and is the dominant medium for international telecommunications,” he said.

“Taking into account that not all satellite constellations are US-owned, my guess is that less than 1% of the world’s international traffic transits over US-owned satellites.”

MYTH: This is merely a “terrorist surveillance program.”
REALITY: When there is evidence a person may be a terrorist, both the criminal code and intelligence laws already authorize eavesdropping. This illegal program, however, allows electronic monitoring without any showing to a court that the person being spied upon in this country is a suspected terrorist.

MYTH: The program is legal.
REALITY: The program violates the Fourth Amendment and Foreign Intelligence Surveillance Act (FISA) and will chill free speech.

MYTH: The Authorization for the Use of Military Force (AUMF) allows this.
REALITY: The resolution about using force in Afghanistan doesn’t mention wiretaps and doesn’t apply domestically, but FISA does–it requires a court order.

MYTH: The president has authority as commander in chief of the military to spy on Americans without any court oversight.
REALITY: The Supreme Court recently found the administration’s claim of unlimited commander in chief powers during war to be an unacceptable effort to “condense power into a single branch of government,” contrary to the Constitution’s checks and balances.

MYTH: The president has the power to say what the law is.
REALITY: The courts have this power under our system of government, and no person is above the law, not even the president, or the rule of law means nothing.

MYTH: These warrantless wiretaps could never happen to you.
REALITY: Without court oversight, there is no way to ensure innocent people’s everyday communications are not monitored or catalogued by the NSA or other agencies.

MYTH: This illegal program could have prevented the 9/11 attacks.
REALITY: This is utter manipulation. Before 9/11, the federal government had gathered intelligence, without illegal NSA spying, about the looming attacks and at least two of the terrorists who perpetrated them, but failed to act.

MYTH: This illegal program has saved thousands of lives.
REALITY: Because the program is secret the administration can assert anything it wants and then claim the need for secrecy excuses its failure to document these claims, let alone reveal all the times the program distracted intelligence agents with dead ends that wasted resources and trampled individual rights.

MYTH: FISA takes too long.
REALITY: FISA allows wiretaps to begin immediately in emergencies, with three days afterward to go to court. Even without an emergency, FISA orders can be approved very quickly and FISA judges are available at all hours.

MYTH: Only liberals disagree with the president about the program.
REALITY: The serious concerns that have been raised transcend party labels and reflect genuine and widespread worries about the lack of checks on the president’s claim of unlimited power to illegally spy on Americans without any independent oversight.

(Download a printable version of the full ACLU report. Download a printable version of this summary.)

By Ryan Singel

The Bush Administration’s hard press for emergency wiretapping powers from Congress before the August break now has an explanation: a secret court decided several months ago that at least one portion of the NSA wiretapping program is illegal, according to MSNBC Newsweek.  That program operated for four years without court supervision, until the Administration bowed to public pressure in January 2007 and allowed the secret Foreign Intelligence Surveillance Court to review it.

In short, prior to the Patriot Act passage, the Administration launched a series of secret, warrantless wiretapping operations, which included snooping on Americans and wholesale data mining of innocent Americans’ communications records (the latter only according to press reports).  The Administration believes it can do this surveillance since it is a King in wartime and thus never asked Congress to make any of this legal in the Patriot Act for fear it would be turned down.

Years later, a part of this secret surveillance is revealed by the New York Times.  After a year of criticism and revelations, the Administration agrees to let a super-secret and very compliant court oversee the program using some very super secret, and legally dubious program warrants.  A few months later, a judge from this court finds portions of the program illegal. The administration refuses to make this decision public. Instead, it goes on offense and says it needs the power to wiretap anyone overseas including Americans. A Republican Congressman accidentally leaks the a hint of the decision on Fox News, while saying that Democrats are putting the country at risk.  Newsweek’s Michael Isikoff and Mark Hosenball (published on MSNBC.com) followed up with good reporting.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials―and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

Now, we know why there’s an intelligence gap. Democrats afraid of looking soft on terrorism are now at work to give more spying power to the government to fill the mineshaft gap.

Once again: a secret court judge found that the Bush Administration’s formerly warrantless wiretapping program was illegal.

And that was the program AFTER it was scaled down in March 2004 after Justice Department officials revolted.  I wonder what judges would have made of the earlier program ― the one so bad that then-Attorney General John Ashcroft was ready to resign.

If there’s an intelligence gap, and I’m not sure there is, it’s only due to the Administration’s hubris.

Reuters

The Bush administration’s top intelligence official has acknowledged that a controversial domestic surveillance program was only one part of a much broader spying effort, The Washington Post reported in its Wednesday edition.

Director of National Intelligence Mike McConnell wrote in a letter that other aspects of the National Security Agency’s domestic spying program remain classified, the Post said.

“That is the only aspect of the NSA activities that can be discussed publicly because it is the only aspect of those various activities whose existence has been officially acknowledged,” McConnell wrote, according to the Post.

Bush acknowledged the existence of a program that monitored domestic phone calls and e-mails without court oversight in December 2005. The administration has not confirmed other secret spying efforts reported by news outlets, such as one that searched millions of telephone records.

Bush signed an executive order that authorized “a number of … intelligence activities” following the hijacking attacks of September 11, 2001, McConnell wrote.

The warrantless wiretapping program was put under court supervision in January but the administration now wants Congress to allow it to do many of the same activities without a court order.

The letter was sent on Tuesday to Pennsylvania Sen. Arlen Specter, the top Republican on the Senate Judiciary Committee.

The letter was written to defend Attorney General Alberto

Gonzales, who has been under attack over his testimony to Congress about the warrantless spying program, the Post said.

A House committee is requesting Justice Department documents on a data-mining project that identified the senders and recipients of calls and e-mails intercepted via the National Security Agency’s eavesdropping program.

In a Monday letter, Rep. John Conyers, chairman of the House Judiciary Committee, asked Attorney General Alberto Gonzales to hand over “all opinions, memoranda and background materials, as well as any dissenting views, materials, and opinions” about the data-mining program.

While the Bush administration has acknowledged OK’ing the controversial program in which the government wiretapped phone calls without obtaining a warrant, it has remained mum on whether it authorized the NSA to use computers to sift through databases to identify who participated in intercepted communications. (The computers reportedly do not identify the contents of the communications.)

Critics have said the surveillance program violates a 1978 act requiring a special court’s approval before eavesdropping on communications in intelligence cases.

In his letter, Conyers wrote that his committee is considering changes to the Foreign Intelligence Surveillance Act and therefore must be “fully apprised of these controversial, and possibly unlawful, programs.”

The Michigan Democrat continued, “It is difficult to craft appropriate legislative responses unless we have all of the relevant facts concerning these programs.”

The embattled Gonzales is at the center of the controversy and is presently defending himself against allegations that he lied to Congress about a dispute between the White House and Justice Department over the eavesdropping program’s legality.

Gonzales has denied there was any significant dissent over the program in the Justice Department, but former Deputy Attorney General James Comey and FBI Director Robert Mueller have indicated otherwise.

At issue is a 2004 late-night hospital visit to then-Attorney General John Ashcroft, which Gonzales claims did not involve discussion of “the terrorist surveillance program that the president announced to the American people.” Mueller testified last week that Ashcroft told him it did involve the program.

A former government official familiar with the program said over the weekend that the dispute was so contentious some officials, including Comey, threatened to resign from the administration in protest.

Last week, Gonzales told a Senate committee that the dispute involved “other intelligence activities,” which he declined to discuss. The former government official said that the dispute centered on data mining, not eavesdropping.

Gonzales will lean heavily on this distinction as he defends himself against perjury charges.

Democrats, however, say it doesn’t matter because the data-mining project was a facet of the NSA eavesdropping program. Also, the former government official who confirmed the existence of the data-mining program has said Gonzales “may have been splitting hairs.”

In his letter to Gonzales, Conyers questioned whether the White House leaked classified information about the data-mining program “to rehabilitate previous controversial testimony by you.” Conyers further said that the Judiciary Committee wants to know if the Justice Department knew about the leaks or authorized them.

National Intelligence Director Mike McConnell and other top administration officials briefed a group of lawmakers on the issue Monday. Gonzales’ testimony was discussed during that session, said Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee.

Specter added that the Bush administration has agreed to address the matter in writing by noon Tuesday, but the senator would not disclose what else was discussed during the 80-minute briefing, nor would he divulge which lawmakers were in attendance.

The White House is “preparing” the letter requested by Specter, spokesman Tony Snow said Tuesday. He would not comment on the noon deadline or the letter’s contents but said it would be delivered Tuesday.

President Bush acknowledged the NSA eavesdropping program in December 2005 and defended it as a vital counterterrorism tool. The program was authorized to intercept communications coming into or out of the United States involving people suspected of having links to al Qaeda, Bush said.

But the administration has not acknowledged using computers to identify who sent or received millions of Americans’ phone calls and e-mails.

Gonzales’ disputed statements ― coupled with an ongoing controversy over the allegedly political dismissals of eight U.S. attorneys last year ― have sparked bipartisan calls for the attorney general’s resignation or ouster.

One Republican, Rep. Christopher Shays of Connecticut, said Gonzales doesn’t have much credibility “and he would do us all a favor if he stepped down and allowed the president to select someone else.”

Last week, four Democratic senators called for the appointment of a special prosecutor to determine if Gonzales has committed perjury.

But the president has stood by his longtime ally, who has been alongside him since 1995, during Bush’s days as Texas governor. Vice President Dick Cheney also has run to Gonzales’ defense.

“I think Al has done a good job under difficult circumstances,” Cheney told CBS Radio on Monday. “The debate between he and the Senate is something they’re going to have to resolve, but I think he has testified truthfully.”

Cheney said he disagreed with Specter, who called Sunday for Gonzales to step down.

“I think the key is whether or not [Gonzales] has the confidence of the president, and he clearly does,” Cheney said.

© 2007 Cable News Network

by Adam Thomas

US President George W. Bush today asked for more powers to wiretap without warrants, in effect retroactively legalizing the unlawful National Security Agency wiretapping, which the President ordered in 2002.

The NSA wiretapping order is illegal under the terms of the The Foreign Intelligence Surveillance Act, but Bush administration, led by Attorney General Alberto Gonzales, has proposed a Intelligence Authorization Act for Fiscal Year 2008 that would make President’s actions retroactively legal.

In his weekly radio, address Bush told Americans that he needs these powers to stop terrorist network that struck America on September the 11th wants to strike US again.

“To stop them, our military, law enforcement, and intelligence professionals need the best possible information about who the terrorists are, where they are, and what they are planning,” the President said. “One of the most important ways we can gather that information is by monitoring terrorist communications.”

Bush claimed that the current statute is two old to be relevant and called for a “modernization” of the Act.

“Our intelligence community warns that under the current statute, we are missing a significant amount of foreign intelligence that we should be collecting to protect our country,” he said. “Congress needs to act immediately to pass this bill, so that our national security professionals can close intelligence gaps and provide critical warning time for our country.”

Civil rights groups including American Civil Liberties Union and Electronic Frontier Foundation have criticized President Bush’s statements claiming that he is using the word “modernize” to describe the removal of safeguards found in the FISA.

“It takes an enormous amount of hubris to ask for more power on the heels of revelations that the President tried to go around his own attorney general on his NSA domestic electronic eavesdropping program,” Caroline Fredrickson, Director of the Washington Legislative Office of the American Civil Liberties Union said. “The already-shaky legal ground on which this domestic spying program stood is crumbling beneath those who defend it.”

The group pointed out the hidden provision in the bill that grants total immunity against criminal and civil liability for the telecom companies’ participation in the NSA’s warrantless wiretapping program.

“It is unprecedented and undemocratic to give retroactive and sweeping immunity to an entire industry,” Fredrickson added. “Not to mention, giving blanket immunity before a full and public airing of the facts.”

ACLU called on the Congress to stand firm against the Executive Branch’s unconstitutional actions.

“This is not the time to hand even more power to an administration that has permitted the wholesale abuse of civil liberties; has denied the legislative branch’s constitutionally mandated oversight role and refused to hold the attorney general accountable for a series of conflicting claims that defy logic, the law and common sense,” Fredrickson said. “The only thing more outrageous than the administration’s call for even more unfettered power is a Congress that would consider giving it to them.”

By SCOTT SHANE and DAVID JOHNSTON

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

The N.S.A.’s data mining has previously been reported. But the disclosure that concerns about it figured in the March 2004 debate helps to clarify the clash this week between Attorney General Alberto R. Gonzales and senators who accused him of misleading Congress and called for a perjury investigation.

The confrontation in 2004 led to a showdown in the hospital room of then Attorney General John Ashcroft, where Mr. Gonzales, the White House counsel at the time, and Andrew H. Card Jr., then the White House chief of staff, tried to get the ailing Mr. Ashcroft to reauthorize the N.S.A. program.

Mr. Gonzales insisted before the Senate this week that the 2004 dispute did not involve the Terrorist Surveillance Program “confirmed” by President Bush, who has acknowledged eavesdropping without warrants but has never acknowledged the data mining.

If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales’ defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct.

But members of the Senate Intelligence Committee, who have been briefed on the program, called the testimony deceptive.

“I’ve had the opportunity to review the classified matters at issue here, and I believe that his testimony was misleading at best,” said Senator Russ Feingold, Democrat of Wisconsin, joining three other Democrats in calling Thursday for a perjury investigation of Mr. Gonzales.

“This has gone on long enough,” Mr. Feingold said. “It is time for a special counsel to investigate whether criminal charges should be brought.”

The senators’ comments, along with those of other members of Congress briefed on the program, suggested that they considered the eavesdropping and data mining so closely tied that they were part of a single program. Both activities, which ordinarily require warrants, were started without court approval as the Bush administration intensified counterterrorism efforts soon after the Sept. 11 attacks.

A half-dozen officials and former officials interviewed for this article would speak only on the condition of anonymity, in part because unauthorized disclosures about the classified program are already the subject of a criminal investigation. Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used.

Nor would they explain what modifications to the surveillance program President Bush authorized to head off the threatened resignations by Justice Department officials.

An agency spokesman declined to comment on the data mining issue but referred a reporter to a statement issued earlier that Mr. Gonzales had testified truthfully.

The Justice Department announced in January that eavesdropping without warrants under the Terrorist Surveillance Program had been halted, and that a special intelligence court was again overseeing the wiretapping. The N.S.A., the nation’s largest intelligence agency, generally eavesdrops on communications in foreign countries. Since the 1978 passage of the Foreign Intelligence Surveillance Act, known as FISA, any eavesdropping to gather intelligence on American soil has required a warrant from the special court.

In addition, court approval is required for the N.S.A. to search the databases of telephone calls or e-mail records, usually compiled by American phone and Internet companies and including phone numbers or e-mail addresses, as well as dates, times and duration of calls and messages. Sometimes called metadata, such databases do not include the content of the calls and e-mail messages ― the actual words spoken or written.

Government examination of the records, which allows intelligence analysts to trace relationships between callers and identify possible terrorist cells, is considered less intrusive than actual eavesdropping. But the N.S.A.’s eavesdropping targeted international calls and e-mail messages of people inside the United States, while the databases contain primarily domestic records. The conflict in 2004 appears to have turned on differing interpretations of the president’s power to bypass the FISA law and obtain access to the records.

President Bush has asserted that both his constitutional powers as commander in chief and the authorization for the use of military force passed by Congress after the Sept. 11 attacks gave him legal justification for skirting the warrant requirement. Critics have called the surveillance illegal because it does not comply with the FISA law.

The first known assertion by administration officials that there had been no serious disagreement within the government about the legality of the N.S.A. program came in talks with New York Times editors in 2004. In an effort to persuade the editors not to disclose the eavesdropping program, senior officials repeatedly cited the lack of dissent as evidence of the program’s lawfulness.

In December 2005, The Times published articles describing the program, the data mining and the internal legal debate. The newspaper reported that the N.S.A. had combed large volumes of telephone and Internet traffic in search of patterns that might point to terrorism suspects.

Civil liberties groups, Congressional Democrats and some Republicans reacted to the disclosures with outrage, accusing the administration of operating an illegal surveillance program inside the United States. The uproar grew when USA Today reported in May 2006 more details of the N.S.A.’s acquisition from telephone companies of the phone call databases. In response to the articles, Mr. Bush confirmed the eavesdropping, saying it was limited to communications in and out of the United States involving people suspected of ties to Al Qaeda. He did not, however, confirm the data mining, nor has any other official done so publicly.

Mr. Gonzales defended the surveillance in an appearance before the Senate Judiciary Committee in February 2006, saying there had been no internal dispute about its legality. He told the senators: “There has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into.”

By limiting his remarks to “the program the president has confirmed,” Mr. Gonzales skirted any acknowledgment of the heated arguments over the data mining. He said the Justice Department had issued a legal analysis justifying the eavesdropping program.

Mr. Bush and other officials also have repeatedly cited Justice Department reviews as evidence of their care in overseeing the program, never mentioning the bitter conflict that unfolded behind the scenes.

Mr. Gonzales’s 2006 testimony went unchallenged publicly until May of this year, when James B. Comey, the former deputy attorney general, described the March 2004 confrontation to the Senate Judiciary Committee.

Mr. Comey had refused to sign a reauthorization for the N.S.A. program when he was standing in for Mr. Ashcroft, who was hospitalized for gall bladder surgery.

Mr. Comey described an intense fight that prompted the top leaders of the Justice Department to consider resigning in protest. Mr. Gonzales and Mr. Card visited the bedside of Mr. Ashcroft, who was in pain and under sedation, to seek his signature on the reauthorization.

Mr. Ashcroft refused to do so. Mr. Comey testified that he thought the White House officials were trying to take advantage of a sick man.

On Tuesday, to respond to Mr. Comey’s account, Mr. Gonzales testified in a Senate appearance that he went to the hospital only after meeting with Congressional leaders about the impending deadline for the reauthorization. He said the consensus was that the program should go on, so he felt he had no choice but to seek Mr. Ashcroft’s approval.

At the hearing, Mr. Gonzales faced harsh questioning about why he had not previously acknowledged the 2004 standoff. In response, he asserted once again that there had not been disagreements about the surveillance program, insisting that the dispute involved “other intelligence activities.”

After the hearing, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, sent Mr. Gonzales a transcript of his testimony with pointed instructions ― to “correct, clarify or supplement your answers so that, consistent with your oath, they are the whole truth.”

UPI

A U.S. bipartisan group Wednesday said the National Security Agency’s warrantless surveillance program is illegal.

The Liberty and Security Committee of the Constitution Project said in a statement that the U.S. Congress should finish its probe into the warrantless surveillance program before it heeds the urging of the Bush administration to beef up laws on electronic surveillance.

Those signing the statement included: David Keene, chairman of the American Conservative Union; Walter Cronkite, former managing editor of CBS Evening News; former Rep. Mickey Edwards, R-Okla., the chairman of the Republican Party Policy Committee; Harold Koh, dean of Yale Law School; and William S. Sessions, former FBI director under Presidents Reagan, Bush and Clinton.

“The NSA’s warrantless surveillance program has stood for too long as an affront to America’s rule of law,” said Keene, a co-chair of the Constitution Project’s Liberty and Security Committee. “The American people deserve to know why and to what extent the NSA has been tapping Americans’ phones without a warrant.”

The committee said the administration’s surveillance program “upends separate, balanced powers by thwarting the will of Congress and preventing any opportunity for judicial review.

“Congress should be applauded for taking steps to uncover the truth about the spying program,” said Sharon Bradford Franklin, senior counsel at the Constitution Project. “Congress must complete its investigation before considering any changes to the law governing electronic surveillance.”

The statement was published one week after a deadline for the White House and the Department of Justice to comply with Senate Judiciary Committee subpoenas to provide documents about the NSA’s domestic surveillance program. The White House has asked for and been given an extension on the deadline.

By Ryan Singel

Dems want to know more about the NSA’s secret warrantless eavesdropping on Americans. They drop a subpoena on Attorney General Alberto Gonzales and President Bush. Both claim the documents are protected by executive privilege or too classified. This is a very likely future scenario and presumably its one the Administration is attempting to head off with its call yesterday for Congress to explicitly legalize the program.

But what happens next? That’s what Jeffrey Rosen (author of The Unwanted Gaze: The Destruction of Privacy in America) asks over the New Republic today (reg. req.) The surprising and not so-surprising conclusion: well, someone could end up in the little known jail inside Congress and the government mired in a Constitutional battle.

Restraint, however, may not be enough to prevent a constitutional confrontation that could make Monicagate look tame. That’s because any conflict could escalate quickly when the White House, invoking its radical theory of unilateral executive authority, refuses to cooperate with Democratic investigations. Congress may then hold the White House officials in contempt, setting up legal battles that could make their way to the Supreme Court while paralyzing the government in the process. […]

The Judiciary Committee, followed by the full House, votes to hold Gonzales in contempt of Congress–a federal crime with a punishment of up to a year in prison. After Nancy Pelosi, the speaker of the House, certifies the contempt citation, she then forwards it along to the U.S. attorney for the District of Columbia, demanding that he haul Gonzales before a grand jury. […]

Regardless of how the Supreme Court ruled in Conyers v. Gonzales (ed. note: the hypothetical case where Rep. John Conyers issued the subpoena), there would be subsidiary legal battles raging for months as the contempt case made its way up to the Supreme Court. Democrats and Republicans would fight about whether to force Gonzales to testify by granting him the necessary immunity–immunity grants require a two-thirds vote by the relevant committee–and the scope of his immunity might provoke lawsuits of its own. All these fires would be raging from a single investigation into the NSA scandal. At the same time, a series of related battles and lawsuits might be erupting from parallel investigations into Iraq war intelligence, Halliburton cronyism, and the misuse of presidential signing statements.

The more I think about it the more I think Rosen might be right. The question then becomes how far will the new Democratic leadership go to hold back investigations, because despite the election results, I don’t believe the administration is going to change its stance on secrecy and executive power.

All I know is that I need to get my typing fingers in shape real soon to keep up.

By Ryan Singel

The government’s surveillance of two attorneys challenging the NSA’s warrantless wiretapping of Americans took place partly during a period in which the top secret program operated without the approval of the Bush administration’s own Justice Department, according to a newly filed court document.

The lawsuit, known as al-Haramain vs. United States, is the only one of more than 50 challenges to the program where the plaintiffs claim to have proof that they were the targets of the warrantless spying, based on a top secret document that had been briefly provided to them in a government paperwork snafu.

For that reason, the lawsuit was already seen as the most resistant to government efforts to protect the program. The allegation that some of the surveillance took place when the program wasn’t authorized by the Justice Department may further complicate the government’s defense.

“Part of our surveillance occurred when the Attorney General advised the president that the program was illegal,” says plaintiff attorney Jon Eisenberg. “That deprives them of the defense they didn’t know it was illegal.”

According to Congressional testimony taken earlier this year, on March 10th, 2004, top Justice Department lawyers and White House officials held a tense showdown over the NSA spying program at the bedside of then-attorney general John Ashcroft in an intensive care unit. Ashcroft’s resolve left the president’s program without the Justice Department’s stamp of approval for about two weeks, as the White House scrambled to tweak the program to meet Ashcroft’s demands.

Attorneys in the al-Haramain case say the plaintiffs were spied on in March and April of 2004, during a period that encompassed that two week interregnum.

Already closely watched, the al-Haramain case became even more important to civil libertarians on Friday, when the U.S. 6th Circuit Court of Appeals dismissed a separate challenge by the ACLU, finding that the journalists and lawyers suing had no “standing” to sue the government, because they had no evidence they were specifically eavesdropped upon by the NSA.

While non-binding on other federal appeals courts, the 2-1 decision casts doubt on the prospects of the more than 50 suits against the government and telecoms now consolidated in federal courts in California, and gives the issue of standing new prominence. According to the decision, Americans can’t sue to stop the secret government program unless they can prove they were secretly spied on. And since the program is classified, potential litigants have no recourse to get that proof from the government through legal process.

Plaintiffs Wendell Belew and Asim Ghafoor may be the only Americans capable of clearing that substantial legal hurdle.

The two American attorneys worked with the al-Haramain Islamic Foundation in 2004 when the Ashland, Oregon-based charity was under federal investigation for ties to terrorism. Belew was one of several lawyers trying to keep al-Haramain off a U.S. Treasury Department watch list ― an effort that sent much paperwork flying back and forth between the attorneys and the Treasury Department’s Washington D.C. headquarters across the street from the White House.

In August 2004, a Treasury Department official accidentally included a classified log of Belew and Ghafoor’s conversations with Soliman al-Buthi, a Saudi-based director for the charity. The FBI later retrieved copies of the documents from the charity’s lawyers and a Washington Post reporter, but copies sent overseas to charity directors were never recovered.

Lawyers for Belew and Ghafoor re-obtained a copy of the document shortly after The New York Times revealed the existence of the spying program, and then filed suit in 2006. The document is now being held in a secure facility in San Francisco.

For its part the government admits that it accidentally turned over the very secret file to the charity’s lawyers, but argues that the case should be dismissed because the very nature of lawsuit involves “state secrets.” The Justice Department also argues that the phone log could have been created by wiretap approved by a secret court or by a foreign government.

An Oregon district court judge disagreed with the government and allowed the case to proceed. The government’s appeal of that decision will be heard on Aug. 15 in the U.S. 9th Circuit Court of Appeals in San Francisco.

The government will also be arguing that day for the dismissal of a high-profile lawsuit against AT&T by the Electronic Frontier Foundation for the telecom’s alleged illegal cooperation in the spying.

In the wake of the 6th Circuit decision, the fate of civil libertarians’ challenge to the spy program may rest on the a-Haramain case, according to Eisenberg. “We’re the last case  standing,” Eisenberg says. “If we aren’t permitted to show standing, no one will be.”