Oval Office Cabal Update: 12-27-05

Oval Office Cabal Update: 12-27-05

CIA Probes Renditions of Terror Suspects: 12-27-05
http://news.yahoo.com/s/ap/20051228/ap_on_go_ot/terrorists_renditions

By KATHERINE SHRADER, Associated Press Writer

WASHINGTON - The CIA's independent watchdog is investigating fewer than 10 cases where terror suspects may have been mistakenly swept away to foreign countries by the spy agency, a figure lower than published reports but enough to raise some concerns.

After the terror attacks of Sept. 11, 2001, President Bush gave the CIA authority to conduct the now-controversial operations, called "renditions," and permitted the agency to act without case-by-case approval from the White House or other administration offices.

The highly classified practice involves grabbing terror suspects off the street of one country and flying them to their home country or another where they are wanted for a crime or questioning.

Some 100 to 150 people have been snatched up since 9/11. Government officials say the action is reserved for those considered by the CIA to be the most serious terror suspects.

Bush has said that these transfers to other countries — with assurances the terror suspects won't be tortured — are a way to protect the United States and its allies from attack. "That was the charge we have been given," he said in March.

But some operations are being questioned.

The CIA's inspector general, John Helgerson, is looking into fewer than 10 cases of potentially "erroneous renditions," according to a current intelligence official who spoke on condition of anonymity because the investigations are classified. Others in the agency believe it to be much fewer, the official added.

For instance, someone may be grabbed wrongly or, after further investigation, may not be as directly linked to terrorism as initially believed.

Human rights groups consider the practice of rendition a run-around to avoid the judicial processes that the United States has long championed. Experts with those groups and congressional committees familiar with intelligence programs say errors should be extremely rare because one vivid anecdote can do significant damage.

Said Tom Malinowski, Washington office director of Human Rights Watch: "I am glad the CIA is investigating the cases that they are aware of, but by definition you are not going to be aware of all such cases, when you have a process designed to avoid judicial safeguards."

He said there is no guarantee that Egypt, Uzbekistan or Syria will release people handed over to them if they turn out to be innocent, and he distrusts promises the U.S. receives that the individuals will not be tortured.

Bush and his aides have said the United States seeks those assurances — and follows up on them. "We do believe in protecting ourselves. We don't believe in torture," he said.

In the last 18 months, his administration has come under fire for its policies and regulations governing detentions and interrogations in the war on terror. At facilities run by the CIA and the U.S. military, graphic images of abuse and at least 26 deaths investigated as criminal homicides have raised questions about how authorities handle foreign fighters and terror suspects in U.S. custody.

Senior administration officials have tried to stress that the cases are isolated instances among the more than 80,000 detainees held since 9/11. Yet much remains unknown about the CIA's highly classified detention and interrogation practices, particularly when it grabs foreigners and spirits them away to other countries.

With the help of the American Civil Liberties Union, Khaled al-Masri, a German citizen of Lebanese descent, has sued the CIA for arbitrarily detaining him and other alleged violations after he was captured in Macedonia in December 2003 and taken to Afghanistan by a team of covert operatives in an apparent case of mistaken identity.

Speaking to reporters by video hookup from Germany this month, al-Masri said he was "dragged off the plane and thrown into the trunk of a car" and beaten by his captors in Afghanistan. Five months later, his complaint says, he was dropped off on a hill in Albania.

Mamdouh Habib, an Egyptian-born Australian, was arrested near the Pakistani-Afghan border shortly after 9/11 and flown to Cairo. He says for six months he was tortured there and was later transported to Afghanistan and Guantanamo Bay, Cuba. In 2005, he was released without charge and allowed to return to Sydney.

Prior to 9/11, renditions were ordered to bring wanted criminals to justice. But the purpose was broadened after the attacks to get terrorists off the streets.

Renditions represent just a fraction of the captures handled by the CIA and its allies. More than 3,000 foreigners have been detained in operations involving the CIA and friendly intelligence services since 9/11, according to the intelligence official. Sometimes the United States may merely be providing information, training or equipment for the operations.

Countries including Jordan and Egypt are believed to cooperate with the operations. Although Saudi Arabia is thought to be involved, its ambassador to the United States has denied accepting any cases at the United States' request.

The spotlight on the issue has called attention to how the CIA does its work, causing consternation among some agency officials who prefer to operate in the shadows.

For instance, planes operated by CIA front companies are often used to move the terror suspects from one country to another, bringing scrutiny to a secret agency fleet that's traveled in the United States, Spain, Germany, Afghanistan, Poland, Romania and elsewhere.

Intelligence officials said the planes are more likely to be carrying staff, supplies or Director Porter Goss on his way to a foreign visit.
zzzzzzzzzz

Scholar Stands by Post-9/11 Writings On Torture, Domestic Eavesdropping+
Former Justice Official Says He Was Interpreting Law, Not Making Policy
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/25/AR2005122500570.html?nav=E8

By Peter Slevin
Washington Post Staff Writer
Monday, December 26, 2005; A03

John Yoo knows the epithets of the libertarians, the liberals and the lefties. Widely considered the intellectual architect of the most dramatic assertion of White House power since the Nixon era, he has seen constitutional scholars skewer his reasoning and students call for his ouster from the University of California at Berkeley.

Civil liberties advocates were appalled by a memo he helped draft on torture. The State Department's chief legal adviser at the time called his analysis of the Geneva Conventions "seriously flawed." Supreme Court Justice Sandra Day O'Connor wrote, in a critique of administration views espoused by Yoo, "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Yoo has alienated so many influential opponents that he is considered unconfirmable for a judgeship or high office, not unlike a certain conservative jurist rejected by the Senate for the Supreme Court.

"Someone said to me that I was the Robert Bork of my generation," he reported the other day.

Yet Yoo, 38, an engaging and outspoken lifelong conservative who clerked for Supreme Court Justice Clarence Thomas, can be found at seminars and radio microphones, standing up for Bush administration legal arguments that will be studied for decades.

"The worst thing you could do, now that people are critical of your views, is to run and hide. I agree with the work I did. I have an obligation to explain it," Yoo said from his Berkeley office. "I'm one of the few people who is willing to defend decisions I made in government."

Those decisions, made when he was a mid-level Justice Department adviser, have been the most fiercely contested legal positions of the Bush presidency. Framing the battle against terrorism as a wartime emergency, Yoo redefined torture, reinterpreted the Constitution and classified as archaic the long-established humanitarian rules of the battlefield.

Yoo wrote a memo that said the White House was not bound by a federal law prohibiting warrantless eavesdropping on communications that originated or ended in the United States. When news of the program broke, members of both parties called for hearings.

Yoo believes he was correct, even if critics say the U.S. response to the Sept. 11, 2001, attacks "threatens the very idea of America," as one editorial said. "It would be inappropriate for a lawyer to say, 'The law means A, but I'm going to say B because to interpret it as A would violate American values,'" Yoo said. "A lawyer's job is if the law says A, the law says A."

How Yoo, who has never met President Bush or Vice President Cheney, came to be a principal interpreter of laws and the Constitution for the Bush team is a story rooted in his conservative convictions and a network of like-minded thinkers who helped him thrive.

"He has succeeded and won people over and advanced his ideas," said Manus Cooney, who hired Yoo on to the Judiciary Committee staff of Sen. Orrin G. Hatch (R-Utah) in 1995. "As far as conservative academics, I don't think there's anyone in the law whose contacts run deeper in the three branches, or higher."

Yoo traces his convictions in no small part to his parents, and Ronald Reagan. His father and mother are psychiatrists who grew up in Korea during the Japanese occupation and the Korean War. They emigrated in 1967, when Yoo was 3 months old. They sought three things, he said: education, economic opportunity and democracy. They settled in Philadelphia because they admired Eugene Ormandy, then conductor of the Philadelphia Orchestra.

Coming of age in an anti-communist household, Yoo said, he associated strong opposition to communist rule with the Republican Party and was himself "attracted to Reagan's message." What he liked most in conservatism was "the grounding in reason and reasonableness."

Yoo attended Episcopal Academy, a private religious school where he studied history, Latin and Greek. Then came Harvard, where he discovered that many people he encountered "were very different-minded, who thought that conservatives were actually sort of stupid or backward." He studied diplomatic history and worked for the school newspaper, where in 1988 he wrote a presidential endorsement of George H.W. Bush rejected by the editorial board's liberal majority.

"It got even worse at law school," Yoo said, recalling the first meeting he attended at the Federalist Society, a national organization of conservatives and libertarians, which attracted all of nine people. Critical of some fellow students who, he said, considered abortion and affirmative action to be the era's most important questions, he settled on matters of war and peace.

With the help of his Federalist Society contacts, he landed a clerkship with U.S. Appeals Judge Laurence H. Silberman, known for his experience in national security issues. Soon after being hired at Berkeley, which Yoo described as the best school to offer him a tenure-track job, he left for the Supreme Court, where he clerked for Thomas and played squash with Justice Antonin Scalia.

Yoo reached the Judiciary Committee staff after Hatch began a search for bright, conservative up-and-comers. Cooney, the staff director, said Yoo maneuvered well: "His smarts are undeniable, but unlike others of similar or equal wattage, he has an appreciation for the political nature of D.C."

Returning to Berkeley, Yoo -- who had interned for the Wall Street Journal -- turned to his legal writings and op-eds. He earned tenure in 1999.

Along the way, he became a regular at the conservative American Enterprise Institute in Washington, where he often found himself in sync with international law skeptic John R. Bolton, an ally of Cheney's and now ambassador to the United Nations. Yoo also testified to the GOP-led Florida legislature during the 2000 presidential recount.

Despite his rsum and connections, Yoo required a particular convergence for his views to become as influential as they did. He needed a well-placed position, a national crisis and a receptive audience. He quickly got all three.

Known for his belief in a strong presidency, he joined the Justice Department's Office of Legal Counsel, which advises the attorney general and the White House, in July 2001. Two months later came the terrorist attacks and the rush to respond. Soon, Yoo found his audience in the highest echelons of the White House, where the president and vice president already tended to see the courts, Congress and international conventions as constraints on the conduct of foreign affairs and national security.

"He was the right person in the right place at the right time," said Georgetown University's David Cole, a constitutional scholar and administration critic. "Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, 'You can do what you want.' "

In a series of opinions, Yoo argued that the Constitution grants the president virtually unhindered discretion in wartime. He said the fight against terrorism, with no fixed battlefield or uniformed enemy, was a new kind of war.

Two weeks after Sept. 11, Yoo said in a memo for the White House that the Constitution conferred "plenary," or absolute, authority to use force abroad, "especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States."

In reasoning Bush cited last week in defending his decision to authorize warrantless wiretapping of U.S. citizens, Yoo's Sept. 25, 2001, memo said Congress granted the president great latitude on Sept. 14, 2001, when it supported the use of force in response to the attacks. The resolution specified the Sept. 11 plotters and their supporters.

"Nonetheless," the memo concluded, "the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters."

The majority view among constitutional scholars holds that the Framers purposely imposed checks on the executive branch, even in wartime, not least in reaction to the rule of Britain's King George III. On such issues, Yoo's critics contend, he went too far. "It's largely a misreading of original intent," Cole said. "The Framers, above all, were concerned about a strong executive."

An Aug. 1, 2002, memo on interrogation, written largely by Yoo, drew the most intense criticism. Saying the administration was not bound by federal anti-torture laws, it declared that, to be considered torture, techniques must produce lasting psychological damage or suffering "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Word of the memo sparked an outcry, causing the White House to back away.

"The idea that . . . Congress has no authority to impose limits on torture has little support in constitutional texts or history, or legal precedent," said University of Chicago law professor Cass Sunstein. Yet Sunstein, like many of Yoo's critics, called him "a very interesting and provocative scholar" who "doesn't deserve the demonization to which he has been subject."

Yoo thinks his critics should understand that he offered legal advice, while others made policy.

"I think people don't understand how difficult was the work we did, how difficult the questions, how recent the 9/11 attacks were," he said. "There was no book at the time you could open and say, 'under American law, this is what torture means.' "

"The lawyer's job is to say, 'This is what the law says and this is what you can't do,' " Yoo said. He advised the White House that the Geneva Conventions do not apply to al Qaeda or the terrorism fight, "but the president could say as a matter of policy we're going to apply them anyway."

Elisa Massimino, Washington director of Human Rights First, is among those who say Yoo deserves considerable blame. "The issues which have most disturbed Americans about the conduct of the executive branch in fighting terrorism can ultimately be traced to legal theories that he espoused in memos pushing the administration in that direction," she said.

Yoo draws inspiration from Thomas and Hatch, saying, "I've seen how they've persevered and still stand up for what they believe in and get their point across." It is a style affirmed by Bork, who wrote a glowing blurb for Yoo's new book, "The Powers of War and Peace."

"He's just being vilified. It's the usual conduct of business in this town right now," Bork said. "You argue your position. What else can you do? There's no tactic that can deflect criticism."

Research editor Lucy Shackelford and researcher Julie Tate contributed to this report.
zzzzzzzzzz

Spying Said to Be Broader Than Reported: Sun Dec 25, 2005
http://news.yahoo.com/s/ap/domestic_spying;_ylt=AsCFr0aj7_SBKnHvCuk51o3B4FkB;_ylu=X3oDMTBiMW04NW9mBHNlYwMlJVRPUCUl

NEW YORK - The National Security Agency has conducted much broader surveillance of e-mails and phone calls — without court orders — than the Bush administration has acknowledged, The New York Times reported on its Web site.

The NSA, with help from American telecommunications companies, obtained access to streams of domestic and international communications, said the Times in the report late Friday, citing unidentified current and former government officials.

The story did not name the companies.

Since the Times disclosed the domestic spying program last week,     President Bush has stressed that his executive order allowing the eavesdropping was limited to people with known links to al-Qaida.

But the Times said that NSA technicians have combed through large volumes of phone and Internet traffic in search of patterns that might lead to terrorists.

The volume of information harvested from telecommunications data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the paper said, quoting an unnamed official.

The story quoted a former technology manager at a major telecommunications firm as saying that companies have been storing information on calling patterns since the Sept. 11 attacks, and giving it to the federal government. Neither the manager nor the company he worked for was identified.
zzzzzzzzzz

U.S. Spying Is Much Wider, Some Suspect: December 25, 2005
http://www.latimes.com/news/nationworld/nation/la-na-spy25dec25,1,7059807.story

By Josh Meyer and Joseph Menn, Times Staff Writers

WASHINGTON — President Bush has acknowledged that several hundred targeted Americans were wiretapped without warrants under the National Security Agency's domestic spying program, and now some U.S. officials and outside experts say they suspect that the government is engaged in a far broader U.S. surveillance operation.

Although these experts have no specific evidence, they say that the NSA has a vast array of satellites and other high-tech tools that it could be using to eavesdrop on a much larger cross-section of people in the United States without permission from a court.

The suspicion is quietly gaining currency among current and former U.S. intelligence officials and among outside experts familiar with how the NSA operates.

The NSA conducts such "wholesale" surveillance continuously almost everywhere else in the world. It does so by using a sprawling network of land-based satellite transponder stations and friendly foreign intelligence agencies and telecommunication companies to collect millions of phone calls, e-mails and other communications.

Powerful NSA supercomputers search this "sigint" — short for signals intelligence — for words that might suggest terrorist plots, such as "bomb," then pass the information to intelligence and law enforcement agencies.

Gen. Michael V. Hayden, former head of the NSA and now the No. 2 U.S. intelligence official, has said the NSA does not use the same technologies to purposely spy on Americans. The agency is prohibited from doing so by federal laws enacted after the domestic spying scandals of the 1970s.

Rare exceptions must be approved by a special court overseeing the Foreign Intelligence Surveillance Act of 1978. The top-secret tribunal considers requests for warrants when the NSA or FBI believes such surveillance is needed to protect national security.

This month it was disclosed that the Bush administration has circumvented the Foreign Intelligence Surveillance Court to monitor hundreds of Americans since the Sept. 11 attacks without any warrants. Bush and his inner circle said the practice is limited to occasions when an individual in the U.S. is communicating with someone overseas who has a known link to Al Qaeda, other terrorist groups or their supporters.

But some officials and other experts believe the top-secret program may be doing more than that.

"It's really obvious to me that it's a look-at-everything type program," said cryptography expert Bruce Schneier, who has written several books about security.

Schneier and others suspect that the NSA may be turning its satellites toward the United States and gathering vast streams of raw data from many more people than disclosed — potentially including all e-mails and phone calls from the United States to certain other countries.

Companies Cooperate

These experts were chiefly talking about satellite surveillance, but the NSA can use other means to eavesdrop. The New York Times reported Saturday that the NSA has collected large volumes of telephone and Internet communications since the Sept. 11 attacks by "tapping directly into some of the American telecommunication system's main arteries."

Leading telecommunication companies have been saving information on calling patterns and passing it along to the government, the newspaper said. The companies have also given the NSA access to electronic switches that connect U.S. and overseas communications networks, a "significant expansion" of NSA capabilities, it said.

Phone companies and others have cooperated with U.S. agencies including the NSA for years. In the early 1990s, AT&T agreed to use an NSA-designed chip to ensure that law enforcement had access to phone calls.

And AT&T has a database code-named Daytona that keeps track of phone numbers on both ends of calls as well as the duration of all land-line calls, according to a business executive who has been briefed on the system.

"This started as a way for phone companies to dig out fraud," the executive said Saturday. After Sept. 11, intelligence agencies began to view it as a potential investigative tool, and the NSA has had a direct hookup into the database, he said.

After such massive volumes of information are collected, they are searched for suspicious language. The administration could thus argue that only hundreds of people were monitored because those conversations were the ones that were flagged because they contained suspicious words, Schneier said.

"If a computer looks at all e-mail and says 'bing' once, is that monitoring one person or millions?" Schneier asked. "The Bush numbers are depending on that subterfuge."

One former senior Pentagon official who has overseen such "data mining" said he also believed the NSA was probably conducting such wholesale surveillance.

"It's a reasonable hypothesis," the official said, adding that he believed it was necessary against savvy terrorists who would otherwise remain undetected.

One former NSA signals-intelligence analyst, Russell D. Tice, said the agency has long had such ability.

"I'm not allowed to say one way or another what the NSA is or is not doing. But the technology exists," said Tice, who left the NSA this year.

"Say Aunt Molly in Oklahoma calls her niece at an Army base in Germany and says, 'Isn't it horrible about those terrorists and Sept. 11?' " Tice said: That conversation would not only be captured by NSA satellites listening in on Germany — which is legal — but flagged and listened to by NSA analysts and possibly transcribed for further investigation.

"All you would have to do is move the vacuum cleaner a little to the left and begin sucking up the other end of that conversation," Tice said. "You move it a little more and you could be picking up everything people are saying from California to New York."

The White House, Justice Department and NSA have refused to discuss the ongoing NSA program except to say that it conforms to U.S. law. The president has cited the powers given to him by Congress after Sept. 11 as well as his constitutional powers as commander in chief.

In interviews, current and former intelligence officials said communications technology was so advanced that it would probably be next to impossible for the NSA to filter out all of the U.S.-based electronic communications even if it wanted to when casting a wide net for terrorists.

Privacy Issues

Some administration critics in Congress have begun speculating that the administration is specifically directing the NSA to conduct such surveillance on people in the U.S.

Top-ranking senators from both parties are preparing questions for administration officials at upcoming hearings on the controversy. Some questions aim to pin down the administration on the issue of wholesale versus individual surveillance, according to congressional staffers.

"Based on how much their story keeps changing, I think there's more to the story," said Susan McCue, chief of staff to Senate Minority Leader Harry Reid (D-Nev.). "A lot of people on Capitol Hill think that."

Foreign Intelligence Surveillance Court members have also demanded an explanation, saying they are concerned that warrantless surveillance is producing illegally gathered evidence that is then used to seek warrants. One member resigned, reportedly because of the domestic spying program.

For some, the program recalls John M. Poindexter's ill-fated Total Information Awareness program, which he was developing for the Pentagon after the Sept. 11 attacks to use electronic transactions performed by millions of people daily to hunt for patterns and flag suspicious activity.

After being briefed on the domestic spying program in summer 2003, Sen. John D. Rockefeller IV (D-W.Va.) wrote to Vice President Dick Cheney: "As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology and surveillance."

Total Information Awareness was essentially killed by Congress in February 2003 over privacy concerns. But parts of it were quietly moved elsewhere and continue to receive classified funding, according to Poindexter.

In the business world, where customer information and other records are used to look for unexpected patterns and trends in people's buying habits, data mining is not particularly controversial.

But in the hands of a powerful government, critics say, data mining raises serious concern about privacy and civil liberties, and the Bush administration has used the practice aggressively.

After Sept. 11, the FBI created a data-mining program called Carnivore but shelved it after critics said it was too intrusive. A Pentagon program, Able Danger, created controversy with its pre-Sept. 11 attempts to uncover terrorist sleeper cells in the U.S. Recently, a Pentagon program aimed at protecting U.S.-based military installations has come under fire for gathering information on protest groups.

Defending Data Mining

The Foreign Intelligence Surveillance Act was not designed to accommodate data-mining projects, and some experts and knowledgeable former U.S. officials suspect that that is why the administration is circumventing it.

Because data mining entails tracing potentially millions of innocent links to find a few suspicious ones, authorities would immediately encounter problems establishing probable cause to proceed. Then, the experts say, authorities would have to obtain warrants under the surveillance act for vast numbers of phone numbers and e-mail addresses.

John Yoo, a former Justice Department lawyer appointed by Bush who was centrally involved in crafting the administration's legal strategy in the war on terrorism, declined to comment on the NSA program. But in 2003 congressional testimony, Yoo seemed to support such broad surveillance when he said: "It appears clear that the 4th Amendment's warrant requirement does not apply to surveillance and searches undertaken to protect the national security from external threats."

Yoo also said that the 4th Amendment protects against "unreasonable" searches and seizures, not all of them.

On Friday, Yoo said he still holds that position: "I believe that the 4th Amendment itself allows the government to conduct warrantless searches that are 'reasonable.' "

The NSA's wholesale collection of signals intelligence overseas has given the Bush administration some of its biggest successes in the war on terrorism.

U.S. intelligence and counterterrorism officials confirmed to the Los Angeles Times that NSA intercepts were instrumental in capturing such high-value Al Qaeda chieftains as Khalid Shaikh Mohammed and Ramzi Binalshibh, who had both boasted shortly before their capture in 2003 of being masterminds of the Sept. 11 attacks. NSA intercepts also placed Osama bin Laden at the battle of Tora Bora in Afghanistan.
zzzzzzzzzz

Daschle: Congress Denied Bush War Powers in U.S.
Friday, December 23, 2005
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/22/AR2005122202119.html

By Barton Gellman
Washington Post Staff Writer

The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post.

Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.

PDF: Justice Letter to Congress  
http://www.washingtonpost.com/wp-srv/politics/documents/122205NSAletter.pdf

The Justice Department acknowledged yesterday, in a letter to Congress, that the president's October 2001 eavesdropping order did not comply with "the 'procedures' of" the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, "except as authorized by statute."

There is one other statutory authority for wiretapping, which covers conventional criminal cases. That law describes itself, along with FISA, as "the exclusive means by which electronic surveillance . . . may be conducted."

Yesterday's letter, signed by Assistant Attorney General William Moschella, asserted that Congress implicitly created an exception to FISA's warrant requirement by authorizing President Bush to use military force in response to the destruction of the World Trade Center and a wing of the Pentagon. The congressional resolution of Sept. 18, 2001, formally titled "Authorization for the Use of Military Force," made no reference to surveillance or to the president's intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.

But Moschella argued yesterday that espionage is "a fundamental incident to the use of military force" and that its absence from the resolution "cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy." Such eavesdropping, he wrote, necessarily included conversations in which one party is in the United States.

Daschle's article reveals an important new episode in the resolution's legislative history.

As drafted, and as finally passed, the resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons" who "planned, authorized, committed or aided" the Sept. 11 attacks.

"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."

Daschle wrote that Congress also rejected draft language from the White House that would have authorized the use of force to "deter and pre-empt any future acts of terrorism or aggression against the United States," not only against those responsible for the Sept. 11 attacks.

Republican legislators involved in the negotiations could not be reached for comment last night.
zzzzzzzzzz