December 2005 - cypherpunks-legacy

do you remember that? alligator
by Maurice Lang 21 Dec '05

21 Dec '05

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[Clips] Clinton Administration Secret Search On Americans -- Without Court Order
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 20:30:53 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Clinton Administration Secret Search On Americans -- Without Court Order Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.drudgereport.com/flash8.htm> The Drudge Report Support The DrudgeReport; Visit Our Advertisers CLINTON ADMINISTRATION SECRET SEARCH ON AMERICANS -- WITHOUT COURT ORDER Bill Clinton Signed Executive Order that allowed Attorney General to do searches without court approval Secret searches of Aldrich Ames's office and home in June and October 1993, both without a federal warrant. Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order" WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order." Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes." 1982: COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES By DAVID BURNHAM, SPECIAL TO THE NEW YORK TIMES (NYT) 1051 words Published: November 7, 1982 A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents. END -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] Executive Order 12949
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 20:31:06 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Executive Order 12949 Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.fas.org/irp/offdocs/eo/eo-12949.htm> [Executive Orders] [Federal Register page and date: 60 FR 8169; February 13, 1995] THE WHITE HOUSE Office of the Press Secretary ________________________________________________________________________ For Immediate Release February 9, 1995 EXECUTIVE ORDER 12949 - - - - - - - FOREIGN INTELLIGENCE PHYSICAL SEARCHES By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows: Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section. Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information. Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches: (a) Secretary of State; (b) Secretary of Defense; (c) Director of Central Intelligence; (d) Director of the Federal Bureau of Investigation; (e) Deputy Secretary of State; (f) Deputy Secretary of Defense; and (g) Deputy Director of Central Intelligence. None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate. WILLIAM J. CLINTON THE WHITE HOUSE, February 9, 1995. -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] eCash: New Zealander challenges Amazon one-click patent
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 18:05:51 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] New Zealander challenges Amazon one-click patent Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://unenumerated.blogspot.com/2005/12/new-zealander-challenges-amazon-on…> Unenumerated A variety of topics, especially law and history. Tuesday, December 20, 2005 New Zealander challenges Amazon one-click patent Caveat: As is with every post on this blog, this post is not legal advice. If you want to make, use, sell, offer to sell, challenge, or otherwise legally entangle yourself with Amazon's patent, consult a good patent laywer (I'm not even one of those quite yet either). Peter Calveley from New Zealand has asked the United States Patent & Trademark Office to re-examine the validity of Amazon's infamous "one-click" patent. One of the claims he is going after is Claim 11 which reads as follows: 11. A method for ordering an item using a client system, the method comprising: displaying information identifying the item and displaying an indication of a single action that is to be performed to order the identified item; and in response to only the indicated single action being performed, sending to a server system a request to order the identified item whereby the item is ordered independently of a shopping cart model and the order is fulfilled to complete a purchase of the item. Calveley has made great use of the Wayback Machine to dig up old documents. Of particular interest is some of the old ecash(tm) documentation from DigiCash. It's of particular interest to me because way back when I worked for six months for DigiCash as a contractor. Ecash was the first digital cash payment system to be deployed on the web. Ecash deployed cutting-edge cryptography, in particular the blind signature which was one of the earliest patents for what was basically a pure algorithm. I describe blind signatures here. However, it's not the cryptography that's important here, but how ecash interacted with the web to order a product. The normal cycle of using ecash was as follows: (1) Click on a link or button on a web page to place an order with a merchant; (2) In response to this click the web server would (using a CGI script) start up the "shop" ecash software; (3) That software would contact the ecash client to request a payment; (4) The ecash client would pop up a screen to confirm a payment, and finally; (5) The user would click a button on the pop-up to confirm the order, and the order would be executed (the file delivered, the wager made, or whatever). This is a "two-click" process. However, ecash had another feature, which I personally only dimly remember, and never associated with the notorious one-click patent until now. But Calveley did make the link and has recovered the documentation for this feature. With this feature the user could alter step 4 to automate the payment. If a user trusted a merchant, he could configure the policy so that step 4 would not launch a pop-up, but would just go ahead and make the requested payment. The result was a one-click ordering process. The combination of ecash automated payment policy with web ordering, which is at least strongly implied by the documentation Claveley has enearthed and almost surely was actually deployed and used in a one-click manner, reads on Amazon's claim 11 and some associated claims. Calveley is the first to point out, as far as I know, that the automated payment policy setting of ecash, combined with a single click to order an item (e.g. to download a file or to make a wager), is a very good prior art reference which anticipates the Amazon one-click patent (or at least makes it even more blindingly obvious than we software engineers already thought it was). If you have personal information or know of further documentation about this feature, or any other product or design prior to 1997 that used one-click ordering, both myself and Peter Claveley are greatly interested in collecting this information. Also, Claveley's going forward with the re-examination is contingent upon him collecting enough donations to recoup the $2,500 USPTO fee for a patent re-examination. You can donate here. posted by Nick Szabo at 7:26 AM -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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Re: Exactly what part...
by coderman 20 Dec '05

20 Dec '05

On 12/20/05, R. A. Hettinga <rah(a)shipwright.com> wrote: > ...of "cypherpunks write code" doesn't anyone around here understand? Glenn Henry at VIA gets my respect for putting crypto on the core of commodity processors*. Does hardware count? :) * http://www.via.com.tw/en/initiatives/padlock/hardware.jsp

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[Clips] Bush gets key backing on spy policy
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 15:15:08 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Bush gets key backing on spy policy Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.kansascity.com/mld/kansascity/news/front/13445932.htm?template=c…> Posted on Tue, Dec. 20, 2005? Intelligence chairman Roberts of Kansas says program 'consistent with U.S. law' Bush gets key backing on spy policy By MATT STEARNS The Star's Washington Correspondent WASHINGTON - The Bush administration found a key ally on Capitol Hill Monday as it broadened its aggressive defense of a recently revealed domestic spying program that used warrantless surveillance. Sen. Pat Roberts of Kansas, the chairman of the Senate Intelligence Committee, "believes the program is consistent with U.S. law and the Constitution," Sarah Little, Roberts' spokeswoman, said in an e-mailed statement. Roberts, in his first public remarks on the electronic surveillance program, indicated he has known about the program since he took over the committee in 2003. He said he believes the administration has taken proper safeguards to preserve Americans' civil liberties and is in talks with Senate leaders on what additional oversight steps Congress should take, Little said. "Senator Roberts believes that in a time of war, the president should have every lawful authority to protect the American people," Little said. The Kansas Republican's defense of the administration came just hours after President Bush lambasted critics of his domestic anti-terror policies at a White House news conference. Facing harsh bipartisan criticism in Congress over the surveillance program, and with renewal of his signature anti-terrorism law, the Patriot Act, stalled in the Senate, Bush said both are key tools in the war on terror. "We're doing the right thing," Bush asserted. Sen. Russ Feingold, a Wisconsin Democrat, countered by calling the surveillance program "an outrageous power grab against the laws of the United States of America." Bush called public disclosure of the National Security Agency program "shameful the fact that we're discussing this program is helping the enemy." The program bypasses a secret court system that requires warrants for eavesdropping. "I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties," Bush said. The program began after the Sept. 11, 2001, terrorist attacks. Bush said Congress had been briefed "more than a dozen times on this program." Such briefings are classified, which means that even if a member of Congress disagrees with a policy, they can't disclose it. The briefings were limited to top congressional leadership and the chairmen and ranking members of the House and Senate Intelligence committees. Sen. Kit Bond, a Missouri Republican who has been on the Senate Intelligence Committee since 2003, said he was not aware of the program. Sen. Carl Levin, a Michigan Democrat on the committee, said he did not know about it, either. On Capitol Hill, Bush's defense did little to quell criticism, amid bipartisan calls for hearings to investigate the program. Democrats said they would not seek to halt the program until they gathered more information about it. Sen. Arlen Specter, a Pennsylvania Republican who is chairman of the Judiciary Committee, has criticized the program and vowed to hold hearings on it. Bush said public hearings would help terrorists by revealing U.S. strategy and tactics. Senate GOP leaders appear to agree with Bush; Majority Leader Bill Frist is said to prefer that any hearings be held by Roberts and the Intelligence Committee, and be closed. "Because of the nature of this subject, it needs to be kept close-held," Bond said in explaining why Roberts' committee would be a better venue than Specter's. Meanwhile, top administration officials sharpened their aggressive defense of the program. Lt. Gen. Michael Hayden, the deputy national intelligence director and former NSA chief, credited the program with "detecting and preventing attacks inside the United States." "I can say, unequivocally that we have got information through this program that would not otherwise have been available," Hayden said at a White House briefing. Attorney General Alberto Gonzales sought to dampen congressional concerns that the program may be illegal. He said the program could only be used if one party on the call or e-mail was outside the United States, and if authorities had "a reasonable basis to conclude" that one of the parties was in some way affiliated with al-Qaida. In a 1972 case involving domestic security surveillance, the Supreme Court found such spying, without a warrant, violated the Fourth Amendment. Congress in 1978 established the Foreign Intelligence Surveillance court, known as FISA, a secret court through which covert spying warrants must be obtained. Gonzales conceded that the law requires warrants for the type of surveillance being done by the NSA. But he claimed Congress trumped that requirement by authorizing the use of force in the war on terror after the Sept. 11, 2001 attacks. Although nowhere in that authorization is domestic surveillance contemplated, Gonzales said the administration interpreted it to include communication interception. "We believe signals intelligence is a fundamental incident of war, and we believe has been authorized by the Congress," Gonzales said. "And even though signals intelligence is not mentioned in the authorization to use force, we believe that the court would recognize the authorization by Congress to engage in this kind of electronic surveillance." Feingold, appearing on NBC's "Today Show," disputed that assertion. "Nobody, nobody, thought, when we passed the resolution to invade Afghanistan and to fight the war on terror, including myself, who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States," Feingold said. Gonzales also said the surveillance court would not work well in combating terrorism. "(FISA) doesn't provide the speed and the agility that we need in all circumstances to deal with this new kind of threat," Gonzales said. But Sen. Jack Reed, a Rhode Island Democrat, pointed out that FISA procedures seem designed to assist quick action by authorities. "These procedures are secret and they're retroactive," Reed said. Some pointed to last week's disclosure of the surveillance program as the reason opponents of the Patriot Act were able to block its renewal in the Senate. A group of senators has bottled up the bill because of civil liberties concerns. Aspects of the bill will expire in 12 days unless Congress acts. At his Monday news conference, Bush took aim at those opponents, implying they were jeopardizing the security of American citizens. "It is inexcusable for the United States Senate to let this Patriot Act expire I want senators from New York or Los Angeles or Las Vegas to go home and explain why these cities are safer," without the Patriot Act, Bush said. "In the war on terror, we cannot afford to be without this law for a single moment," Bush said. But opponents indicated no willingness to cave either on Patriot Act renewal or on demands to investigate the surveillance program, as they pushed back against the broad executive powers claimed by the administration. "He is the president, not a king," Feingold said. "If the president is asserting a doctrine that he can do anything to protect the American people without the basis of law, we need to know what those things are, and we need to talk about it." -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] Democrats Say They Didn't Back Wiretapping
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 13:37:05 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Democrats Say They Didn't Back Wiretapping Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.breitbart.com/news/2005/12/20/D8EK2VEO7.html> BREITBART.COM - Democrats Say They Didn't Back Wiretapping By KATHERINE SHRADER Associated Press Writer Dec 20 11:22 AM US/Eastern WASHINGTON - Some Democrats say they never approved a domestic wiretapping program, undermining suggestions by President Bush and his senior advisers that the plan was fully vetted in a series of congressional briefings. "I feel unable to fully evaluate, much less endorse, these activities," West Virginia Sen. Jay Rockefeller, the Senate Intelligence Committee's top Democrat, said in a handwritten letter to Vice President Dick Cheney in July 2003. "As you know, I am neither a technician nor an attorney." Rockefeller is among a small group of congressional leaders who have received briefings on the administration's four-year-old program to eavesdrop _ without warrants _ on international calls and e-mails of Americans and others inside the United States with suspected ties to al-Qaida. The government still would seek court approval to snoop on purely domestic communications, such as calls between New York and Los Angeles. The White House brushed aside Democrats' contention that they weren't provided enough information on the program. "They were briefed and informed," White House press secretary Scott McClellan said, repeatedly refusing to address Democrats' specific complaints. "Congress has an important oversight role." Some legal experts described the program as groundbreaking. And until the highly cl conference that he was assuming unlimited powers. "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject," he said angrily. "I am doing what you expect me to do, and at the same time, safeguarding the civil liberties of the country." Despite the defense, there was a growing storm of criticism in Congress and calls for investigations, from Democrats and Republicans alike. Until the past several days, the White House had only informed Congress' top political and intelligence committee leadership about the program that Bush has reauthorized more than three dozen times. Attorney General Alberto Gonzales said he and other top aides were now educating the American people and Congress. "The president has not authorized ... blanket surveillance of communications here in the United States," he said. The spying uproar was the latest controversy about Bush's handling of the war on terror. It follows allegations of secret prisons in Eastern Europe and of torture and other mistreatment of detainees, and an American death toll in Iraq that has exceeded 2,150. The eavesdropping program was operated out of the NSA, the nation's largest and perhaps most secretive spy operation. Employees there appreciate their nicknames: No Such Agency or Never Say Anything. Decisions on what conversations to monitor are made at the Fort Meade, Md., headquarters, approved by an NSA shift supervisor and carefully recorded, said Gen. Michael Hayden, the principal deputy director of intelligence. "The reason I emphasize that this is done at the operational level is to remove any question in your mind that this is in any way politically influenced," said Hayden, who was NSA director when the program began. Since the program was disclosed last week by The New York Times, current and former Congress members have been liberated to weigh in. Former Sen. Bob Graham, D-Fla., who was part of the Intelligence Committee's leadership after the 9/11 attacks, recalled a briefing about changes in international electronic surveillance, but does not remember being told of a program snooping on individuals in the United States. House Minority Leader Nancy Pelosi, D-Calif., received several briefings and raised concerns, including in a classified letter, her spokeswoman Jennifer Crider said. Former Senate Democratic leader Tom Daschle said he, too, was briefed by the White House between 2002 and 2004 but was not told key details about the scope of the program. Daschle's successor, Sen. Harry Reid, D-Nev., said he received a single briefing earlier this year and that important details were withheld. "We need to investigate this program and the president's legal authority to carry it out," Reid said. Republicans, too, were skeptical. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, has promised hearings next year and said he would ask Bush's Supreme Court nominee, Samuel Alito, his views of the president's authority for spying without a warrant. ___ On the Net: Rockefeller's handwritten note: http://wid.ap.org/documents/051219rockefeller.pdf -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] Clinton Claimed Authority to Order No-Warrant Searches
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 12:52:41 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Clinton Claimed Authority to Order No-Warrant Searches Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.nationalreview.com/script/printpage.p?ref=/york/york200512200946…> The National Review Byron York December 20, 2005, 9:46 a.m. Clinton Claimed Authority to Order No-Warrant Searches Does anyone remember that? In a little-remembered debate from 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches - including break-ins at the homes of U.S. citizens - for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own. "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General." "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities." Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power." Reporting the day after Gorelick's testimony, the Washington Post's headline - on page A-19 - read, "Administration Backing No-Warrant Spy Searches." The story began, "The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers." In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus." The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court. Meanwhile, Congress began discussing a measure under which the authorization for break-ins would be handled like the authorization for wiretaps, that is, by the FISA court. In her testimony, Gorelick signaled that the administration would go along a congressional decision to place such searches under the court - if, as she testified, it "does not restrict the president's ability to collect foreign intelligence necessary for the national security." In the end, Congress placed the searches under the FISA court, but the Clinton administration did not back down from its contention that the president had the authority to act when necessary. - Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President - and Why They'll Try Even Harder Next Time. -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] Why Bush Approved the Wiretaps
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 11:57:58 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Why Bush Approved the Wiretaps Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://www.nationalreview.com/script/printpage.p?ref=/york/york200512191334…> The National Review Byron York December 19, 2005, 1:34 p.m. Why Bush Approved the Wiretaps Not long ago, both parties agreed the FISA court was a problem. In the days since the revelation that President Bush authorized the National Security Agency to bypass, in certain cases of suspected al Qaeda activity, the special court set up to provide warrants for national-security wiretaps, the question has come up repeatedly: Why did he do it? At his news conference this morning, the president explained that he believed the U.S. government had to "be able to act fast" to intercept the "international communications of people with known links to al Qaeda." "Al Qaeda was not a conventional enemy," Bush said. "This new threat required us to think and act differently." But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court - problems examined by members of the September 11 Commission - and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror. People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things. Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late. Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002. The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained. "Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process." It was in the context of such bureaucratic bottlenecks that the president first authorized, and then renewed, the program to bypass the FISA court in cases of international communications of people with known al Qaeda links. There were other reasons for the president to act, as well. In short, it appears that he was trying to shake the bureaucracy into action. The September 11 Commission report pointed to a deeply entrenched it's-not-my-job mentality within the National Security Agency that led the organization to shy away from aggressive antiterrorism surveillance. "The law requires the NSA to not deliberately collect data on U.S. citizens or on persons in the United States without a warrant based on foreign intelligence requirements," the 9/11 commission report wrote, While the NSA had the technical capability to report on communications with suspected terrorist facilities in the Middle East, the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and foreign countries, because it believed that this was an FBI role. It also did not want to be viewed as targeting persons in the United States and possibly violating laws that governed NSA's collection of foreign intelligence. An almost obsessive protection of sources and methods by the NSA, and its focus on foreign intelligence, and its avoidance of anything domestic would...be important elements in the story of 9/11. Bush's order, it appears, was an attempt to change that situation. Especially before, and even after, passage of the Patriot Act, the FISA bureaucracy and the agencies that dealt with it were too unwieldy to handle some fast-moving intelligence cases. And now, a group of 43 Democrats and four Republicans is trying to undo even those improvements brought by the Patriot Act; after the effort to renew the law was filibustered last week, Senate Minority Leader Harry Reid exulted, "We killed the Patriot Act." Put all those factors together, and they explain the president's impassioned argument that he has to act to keep the pressure on al Qaeda - especially at a time when others, for whatever reasons, are trying to stop him. - Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President - and Why They'll Try Even Harder Next Time. -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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[Clips] Thank You for Wiretapping
by R. A. Hettinga 20 Dec '05

20 Dec '05

--- begin forwarded text Delivered-To: clips(a)philodox.com Date: Tue, 20 Dec 2005 11:16:31 -0500 To: Philodox Clips List <clips(a)philodox.com> From: "R. A. Hettinga" <rah(a)shipwright.com> Subject: [Clips] Thank You for Wiretapping Reply-To: rah(a)philodox.com Sender: clips-bounces(a)philodox.com <http://online.wsj.com/article_print/SB113503784784326861.html> The Wall Street Journal December 20, 2005 REVIEW & OUTLOOK Thank You for Wiretapping December 20, 2005; Page A14 Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America. That is the real issue raised by the Beltway furor over last week's leak of National Security Agency wiretaps on international phone calls involving al Qaeda suspects. The usual assortment of Senators and media potentates is howling that the wiretaps are "illegal," done "in total secret," and threaten to bring us a long, dark night of fascism. "I believe it does violate the law," averred Mr. Feingold on CNN Sunday. The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power -- and endangering the country in the process. * * * The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed. The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." On Sunday Mr. Graham opined that "I don't know of any legal basis to go around" FISA -- which suggests that next time he should do his homework before he implies on national TV that a President is acting like a dictator. (Mr. Graham made his admission of ignorance on CBS's "Face the Nation," where he was representing the Republican point of view. Democrat Joe Biden was certain that laws had been broken, while the two journalists asking questions clearly had no idea what they were talking about. So much for enlightening television.) The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being "secret," key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them. Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear. All the more so because there are sound and essential security reasons for allowing such wiretaps. The FISA process was designed for wiretaps on suspected foreign agents operating in this country during the Cold War. In that context, we had the luxury of time to go to the FISA court for a warrant to spy on, say, the economic counselor at the Soviet embassy. In the war on terror, the communications between terrorists in Frankfurt and agents in Florida are harder to track, and when we gather a lead the response often has to be immediate. As we learned on 9/11, acting with dispatch can be a matter of life and death. The information gathered in these wiretaps is not for criminal prosecution but solely to detect and deter future attacks. This is precisely the kind of contingency for which Presidential power and responsibility is designed. What the critics in Congress seem to be proposing -- to the extent they've even thought much about it -- is the establishment of a new intelligence "wall" that would allow the NSA only to tap phones overseas while the FBI would tap them here. Terrorists aren't about to honor such a distinction. As Secretary of State Condoleezza Rice said Sunday on NBC's "Meet the Press," before 9/11 "Our intelligence agencies looked out; our law enforcement agencies looked in. And people could -- terrorists could -- exploit the seam between them." The wiretaps are designed to close the seam. * * * As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn't get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap "gotcha," the White House should release the names of every Congressman who received such a briefing. Which brings us to this national security leak, which Mr. Bush yesterday called "a shameful act." We won't second guess the New York Times decision to publish. But everyone should note the irony that both the Times and Washington Post claimed to be outraged by, and demanded a special counsel to investigate, the leak of Valerie Plame's identity, which did zero national security damage. By contrast, the Times's NSA leak last week, and an earlier leak in the Washington Post on "secret" prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame. The NSA wiretap uproar is one of those episodes, alas far too common, that makes us wonder if Washington is still a serious place. Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We're glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans. -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips(a)philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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