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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, January 30, 2006

Questions 6-10

Question 6

On January 16, you were interviewed on CNN by Larry King, and you were asked: "Are you assuring that American citizens with nothing to hide have nothing to worry about?" In response, you said:


"Well, again, as the president indicated, and I'm only talking about what the president described to the American people in his radio address, we're talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda."

In your answer, you limited your assurances by making clear that you were "only talking about what the president described to the American people in his radio address."

The January 27 DoJ Press Release, in several different places, contains this same limitation on the Administration’s assurances that innocent Americans are not being eavesdropped on without warrants.

Without disclosing any operational details, are there other warrantless eavesdropping programs beyond what the President described which entail or permit warrantless eavesdropping on the communications of Americans?

Question 7

In June, 2002, Senator DeWine introduced legislation to lower the evidentiary showing required for obtaining FISA warrants targeted at non-U.S. persons from "probable cause" to "reasonable suspicion," and in response, the DoJ attorney who supervises the process for obtaining of FISA warrants, James A. Baker, submitted a Statement to the Senate Intelligence Committee, in which he indicated that the Administration was not prepared to support those changes because they were unnecessary and possibly unconstitutional.

(a) As of June, 2002, was Mr. Baker’s statement accurate that the "probable cause" standard in FISA had not created any barriers or problems which impeded the Administration from engaging in all of the anti-terrorism eavesdropping it wanted to engage in?

(b) As of the time the President ordered the NSA to eavesdrop outside of FISA, how many requests for eavesdropping warrants had the FISA court rejected in its history?

(c) In his Statement, Mr. Baker specifically thanked the Congress for creating a 72-hour window as part of the Patriot Act which allows eavesdropping during that time period without obtaining a FISA warrant. In praising that provision, Mr. Baker said that this window has "enabled the government to become quicker, more flexible, and more focused in going ‘up’ on those suspected terrorists in the United States," and "has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats."

Was Mr. Baker’s statements praising this 72-hour window as giving the Administration the speed and flexibility it needed an accurate reflection of the Administration’s view of FISA at the time?

(d) In the January 27 Press Release issued by the DoJ, the point was made several times that the 72-hour window is inadequate to enable the eavesdropping which the Administration claims it needs to engage in. Prior to the public disclosure of the NSA warrantless eavesdropping program, did the DoJ ever advise Congress that, contrary to Mr. Baker’s statement, the 72-hour warrantless window was actually insufficient and needed to be changed?

(e) If, as the DoJ now claims, the 72-hour window was insufficient and too cumbersome, why did it send Mr. Baker to specifically advise the Intelligence Committee that the 72-hour window in FISA was working well, rather than advise the Committee that this provision should be loosened or changed to fix any problems?

(f) Did the DoJ or the Administration generally ever ask Congress to amend FISA to redress what it now claims are inadequacies in the 72-hour window?

Question 8

In the Summer of 2002, not only Sen. DeWine, but also Senators Schumer and Kyl, sponsored legislation to amend FISA in order to expand the scope of the Administration’s eavesdropping powers. The statements by the Senators who spoke at the Hearings in favor of those proposed amendments, including Committee Chairman Bob Graham, leave no doubt that the Senators were operating on the assumption that FISA continued to govern and restrict the eavesdropping activities of the Bush Administration.

Senator Graham, for instance, opened the hearings by stating that the amendments were offered "for the purpose of reducing both the nature and scope of the showing the government must make to obtain a surveillance order against suspected terrorists inside the United States who are neither citizens nor legal resident aliens." Senator Schumer said that the U.S "can't do the surveillance we need to do" if it can’t meet the requirements of FISA. Senator Kyl said the amendments were necessary to "put this important tool into the hands of law enforcement and intelligence agencies here in this country so that we can add one more element to the protection of the American people."

Again and again, the Senators at this hearing said that in order to increase the Administration's eavesdropping powers, it was necessary to amend FISA -- clearly showing that they were operating with the belief that the Administration was eavesdropping only in compliance with the statute:

(a) Why didn’t the Justice Department simply tell the Senate that it was not necessary to amend FISA in order to increase the Administration’s eavesdropping powers because the Administration already had unlimited eavesdropping authority under the AUMF?

(b) According to the remarks of both Senator Schumer and Senator Kyl, the Attorney General specifically indicated his approval for these FISA amendments. Why did the Justice Department encourage the Senate to spend its time and energies expanding the scope of FISA if the Administration already believed it had all the authority it needed to engage in limitless eavesdropping under the AUMF?

(c) In his testimony before the Committee, the DoJ’s James Baker sought to assure the Committee that expanded eavesdropping would not pose any threats to civil liberties by stating the following:


So you would be, you know, connecting electronic surveillance and potentially physical search of those targets and that raises all the same kinds of civil liberties questions that FISA does to begin with. But nevertheless, you would have had--before you get to that point, you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met and that there's probable cause to believe that this individual is engaged in international terrorism activities, or activities in preparation therefor.


At the time, wasn’t Mr. Baker’s statement to the Committee false because he assured them that eavesdropping could only occur when you have "a sitting federal judge, district court judge" certify "that all of the requirements of the statute are met?"

(d) Isn’t it true that these Senators – Schumer, Kyl, DeWine, Graham – who thought in 2002 that FISA needed to be amended in order to expand the Administration’s eavesdropping powers, were operating on the false assumption that the Administration was only eavesdropping in compliance with FISA?

(e) Is it accurate to say that the FISA amendments which these Senators had introduced and were publicly debating were actually entirely unnecessary in order to expand the Administration’s eavesdropping power, because the Administration had already decided that had authority to eavesdrop beyond the parameters of FISA?

Question 9

Various members of Congress, including then-Majority Leader Tom Daschle, have stated that the Administration specifically requested that Congress insert a provision into the AUMF authorizing the Administration to use war powers within the United States, but Congress refused to include such a phrase, and the AUMF does not include such an authorization.

(a) Is that an accurate rendition of events – that the Administration requested, but Congress refused, the inclusion in the AUMF of a clause authorizing the Administration to use its war powers within the U.S.?

(b) What is the legal meaning or significance of that refusal by Congress, if any? Would it have made a difference one way or the other if Congress had agreed to include that provision rather than refused to include it?

(c) Despite that refusal, is it the Administration’s position that it has the authority to exercise its war powers within the U.S.?

Question 10

In its January 27 Press Release, the DoJ argued that:


In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental incident(s) of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.

(a) Is it the position of the Administration that, by virtue of the AUMF, the Administration is authorized to employ all of the "fundamental incidents of waging war?"

(b) Is it the position of the Administration that it is authorized to employ all of the "fundamental incidents of waging war" not only abroad, but also here within the United States?

(c) It is the position of the Administration that it is authorized to employ all of the "fundamental incidents of waging war" not only against foreign nationals, but against U.S. citizens as well?

(d) Is it the position of the Administration that the President would have these powers – namely to employ all of the "fundamental incidents of waging war" both abroad and here in the United States – even if the AUMF did not give that authority to the President?

(e) Is it the position of the Administration that the "fundamental incidents of waging war" include: (i) eavesdropping; (ii) detention of individuals it believes are enemy combatants; (iii) interrogation; and (iv) indefinite incarceration, even without counsel, charges being brought, or a trial?

(f) Is the following a fair summary of the Administration’s view of the President’s power:

In responding to threats of terrorism, the President has the power: (i) to eavesdrop on American citizens both outside of and within the U.S., (ii) to detain them, (iii) to use any methods he wants to interrogate them, and (iv) to incarcerate them indefinitely without counsel or a trial -- and the President can do all of this, including to U.S. citizens and inside the U.S., without any ability on the part of Congress or the courts to interfere with or limit those activities in any way?

(g) Is it the Administration’s position that the President has the power to order any of those activities described in the previous question even if Congress passes a law making it a crime to engage in or order those activities against American citizens?

(h) Leave aside the question of what the Administration intends to do or not do -- Is it the Administration’s position that it has the power, legally, to eavesdrop on a U.S. citizen inside the U.S. with no warrant, detain that citizen with no trial or charges being brought, interrogate that citizen using even those methods outlawed by the McCain Amendment, and incarcerate that citizen indefinitely – and that it can do all of those things even if Congress enacts laws prohibiting those activities?

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