Terror

A federal judge in the Northern District of California has ruled in favor of a challenge to the Bush Administration's terrorist surveillance program, saying that the Executive branch has no authority to conduct warrantless surveillance except under the conditions set forth by Congress in the 1978 Foreign Intelligence Surveillance Act. The lawsuit, brought by the Al-Haramain Islamic Foundation, a Muslim charity, alleged that the National Security Agency violated the FISA Act when it secretly monitored the foundation's communications under the controversial program. The judge ruled that FISA is the "exclusive" means of conducting such surveillance and agreed with the foundation's complaint.

"Congress appears clearly to have intended to - and did - establish the exclusive means for foreign intelligence activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch's authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities."

The Bush Administration has consistently argued that the president's authority to order the surveillance stems from his inherent power as commander-in-chief of the armed forces. It says that enemy surveillance is a function of war fighting and not subject to congressional or court oversight. The Administration also argues that the terrorist surveillance program is legal since it monitors only communications in which at least one of the parties is outside the United States.

The judge's ruling in the case seems to run afoul of Constitutional law. Constitutional powers cannot be "limited" by statute, only by an amendment to the Constitution. Just as a presidential Executive Order declaring that Congress cannot pass a law raising taxes would be unconstitutional, it is similarly unconstitutional for Congress to pass a law limiting the president's authority to command the armed forces in war time. Supporters of the terrorist surveillance program argue that the war on terrorism trumps Congress's intent in the 1978 FISA Act, while the program's detractors say that FISA is the legitimate governing standard. Whatever the opinions of the opposing sides, this case seems destined to one day be decided by the Supreme Court.

As I drove into work today, my thoughts wandered through the Proustian myriad of baseball games and long naps that is the dog days of summer. Filtered, as they are, by the writer in me, I landed on August 6, 2001. I don't remember what I was doing that day, but I can guess. I had just accepted a job offer, and was waiting to commence my employment by attending orientation on September 10 and 11, in Newark, NJ. In the interim, I probably watched a lot of "Jerry Springer."

President Bush, as we all know, was vacationing in Crawford, Texas, and getting ready to deliver an address on restricting embryonic stem cell research. He was also probably recovering from the writer's cramp he got from preparing a signing statement on August 3, renewing ILSA. Some highlights:

... we are strengthening our efforts with other countries, whose cooperation is essential to pursuing the most effective approaches to solving the problems of proliferation and terrorism...

With respect to Iran, we continue to have serious concerns over its support for terrorism, opposition to the Middle East peace process, and pursuit of weapons of mass destruction.

And, with terrorism fresh in his mind, there was that now-famous President's Daily Brief, "Bin Ladin Determined to Strike in US." Bush's response was to tell the briefer, "All right. You've covered your ass, now."

File this one under the category of "Things That Make You Go 'Hmmmmm.'"

The Washington Post has a story today about a former CIA operative who claims he tried to warn the agency about bad intelligence on Iraqi weapons programs and who now says CIA officials also ignored evidence that Iran had suspended work on a nuclear bomb.

The onetime undercover agent who worked for the agency for 22 years has filed a motion in federal court asking the government to declassify legal documents describing what he says was a deliberate suppression of findings on Iran that were contrary to agency views at the time. He filed a lawsuit in 2004 alleging the CIA fired him for fighting senior bosses to file reports that went against conventional wisdom about WMD in the Middle East.

"On five occasions he was ordered to either falsify his reporting on WMD in the Near East, or not to file his reports at all," the former operative's attorney, Roy Krieger, told the Post.

The Post says the former operative, a Middle East native and fluent speaker of both Farsi and Arabic, recruited an informant who revealed secret evidence that Tehran had halted its research into designing and building a nuke. But attempts to file that information were "thwarted by CIA employees," according to court papers. Later he was told to "remove himself from any further handling" of the informant, the Post notes. The operative later was the subject of two internal investigations involving alleged sexual relations with an informant and financial improprieties. His lawyer said in court papers those probes were a "pretext to discredit."

"It would be wrong to suggest that agency managers direct their officers to falsify the intelligence they collect or to suppress it for political reasons," a CIA spokesman told the Post. "That's not our policy. That's not what we're about."

Not only is the Taliban-led insurgency in Afghanistan (remember Afghanistan?) flourishing after almost seven years of U.S.-led fighting there, but insurgents probably will accelerate their attacks and expand into new regions of the country pretty soon.

That's the cheery news from the Defense Department report released late last week.

You can read the report here. The American Forces Press Services puts an unsurprisingly more optimistic spin on it. Here's a quick overview of what the "Report on Progress toward Security and Stability in Afghanistan" for Congress found:

-The Afghanistan National Police (ANP) are improving, although at a slower pace than the Afghan National Army (ANA). It's hampered by lack of reform, corruption, insufficient U.S. military trainers and advisers, "and lack of unity of effort within the international community."

-"The Taliban regrouped after its fall from power and have coalesced into a resilient insurgency. It now poses a challenge to the Afghan Government's authority in some rural areas."

President Bush announced today that the United States will drop North Korea from its list of state sponsors of terrorism in exchange for the communist regime's cooperation in the Six Party Talks. After months of stalling and diplomatic wrangling, North Korea turned over a declaration of all its past nuclear activities today to China, the host of the Six Party Talks, which will share the information with the U.S, Russia, Japan, and South Korea. The de-listing of the North as a terror sponsor clears the way for food and fuel aid, desperately needed by its impoverished people, to be delivered. Until today, North Korea had been resisting releasing the new declaration, saying that it had already made a complete declaration of its nuclear activities at the end of last year. The Bush Administration disputed that and insisted that the North provide more details about its clandestine nuclear programs. It appears that Kim Jong-Il, the North's reclusive and eccentric leader, gave in to that demand today.

At the White House today, President Bush said that the new developments were the "beginning of a process of action for action."

"If North Korea continues to make the right choices, it can repair its relationship with the international community. If North Korea makes the wrong choices, the United States and its partners in the six-party talks will act accordingly.

If they don't fulfill their promises, more restrictions will be placed on them."

Critics of the announcement said that the North had routinely violated international agreements, including with the United States, and could not be trusted. Former Assistant Secretary of State and United Nations Ambassador John Bolton declared it, "shameful," saying the deal represented, "the final collapse of Bush's foreign policy."

Bolton is right to be suspicious, and it may well be that the agreement will not be able to be fully judged for several years and without full verification in the form of inspections. But the Bush Administration is content to call this a major diplomatic victory and is optimistically looking forward to putting the United States on firm footing with respect to the threat from North Korea before the president's term expires.

Congressman Bill Delahunt of Massachusetts today made an amazingly outrageous comment during a House hearing. Watch the clip below:

"I'm glad they finally have a chance to see you?" That would be Al Qaeda? Making matters worse, Delahunt offered an embarrassing effort to clean up his mess, saying he meant that he was happy to see Addington. Seriously.

"I'm sure they are watching. I'm glad they finally have a chance to see you, Mr. Addington, given your penchant for being unobtrusive."

Not much room for interpretation there Congressman.

A House Judiciary subcommittee is raking Bush administration lawyers over the coals to get at exactly what role they played in crafting policy on how to interrogate of terror detainees, and whether the president of the United States ever has the authority to, in the name of national defense, say - bury a detainee alive.

Members of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, particularly the Democratic ones, are frustrated with the lack of straightforward answers coming out of the mouths of Dick Cheney's chief of staff, David Addington - who is believed to have advocated the use of nearly unlimited authority by the executive branch in times of conflict - and John Yoo, the former administration lawyer turned law professor. Today's hearing is the last in a series of 3 held by the panel on the topic.

Congress is trying to get answers, in part, about a March 2003 memo in which the Justice Department memo gave military interrogators broad authority - similar to powers the CIA was given - to use extreme interrogation techniques and argued that wartime powers mostly exempted interrogators from laws banning such treatment. The 2003 81-page opinion was written by Yoo, then the second-ranking official at the Office of Legal Counsel at DOJ. The CIA memo from August 2002, also written by Yoo, is also known as the "Bybee memo."

After the jump are some highlights, some of which I paraphrased.

In a first of its kind ruling, the District of Columbia Circuit Court of Appeals has overturned the detention of a Guantanamo Bay detainee, ordering the government to give him a new hearing or release him. The detainee, Huzaifa Parhat, a Chinese Uighur captured in Afghanistan, has been held at Guantanamo for more than six years on suspicion of joining a Chinese Muslim group and attending an al-Qaeda training camp. The court's ruling was handed down last Friday.

Parhat petitioned the D.C. Circuit court under the protocol established by the Military Commissions Act of 2006, which the Supreme Court ruled unconstitutional last week. Under the act, the D.C. Circuit is the court designated by Congress to review so-called combatant status review tribunals. In its ruling, the Supreme Court said that Congress had improperly suspended the writ of habeas corpus in the case of the detainees, granting them access for the first time to U.S. civilian courts. But Parhat's case seems to confirm that the process set up by Congress in the act can indeed work; and that the Supreme Court's decision to essentially shut down the review process was premature.

David Remes, a lawyer representing several Guantanamo Bay detainees, said that the decision would be significant in the cases of other detainees pending before various federal courts. "[The decision] makes clear that the government can be required to transfer or release an individual if it is determined that the individual has been improperly classified as an enemy combatant." This is what Congress intended in setting up the review system. But the decision may also, ironically, be the last of its kind, as no one is really sure what form the new court review process mandated by the Court will take. The Supreme Court, in attempting to extend more legal rights to Guantanamo Bay detainees, may have actually brought a system capable of impartially weighing the evidence against them to a screeching halt.

Anbar Province, once Iraq's wild and lawless west, is about to be handed over to Iraqi security forces by the U.S. military. Anbar is the largest of Iraq's 18 provinces and the home of some of the fiercest fighting of the war and the insurgency. Cities like Ramadi, al-Qaim, near the Syrian border, and Fallujah were once virtual no-go zones for U.S. military personnel. Now they are deemed peaceful enough to entrust their control to the rapidly improving Iraqi Army and police forces.

The U.S. poured resources into Anbar as part of the troop surge, aiming to break the Sunni-led insurgency there and in Baghdad. They found local tribes increasingly more willing to work with government and coalition forces, after years of brutal domination by al-Qaeda linked foreign militants in the region. Dubbed the "Anbar Awakening," the tribes' turn toward the coalition continues and is largely responsible for breaking the back of al-Qaeda in Iraq and for the reduction in violence throughout the country.

The handover is more evidence of the success of the Bush Administration's troop surge. Violence against U.S. personnel and Iraqi civilians has come way down in recent months, helping to secure not only Iraq, but funding for the war through 2009. Iraq has been surpassed by the economy and especially high gas prices as the main issues in the presidential race as coverage has faded from the national news and cable shows due to the improving situation there. There is still much work to be done in Iraq, reports indicate that four Americans, two troops and two civilians, were killed this morning in Baghdad. But despite these isolated incidents, it is increasingly clear that Iraq is on the right path toward relative stability and responsible governance.

Update: The Obama campaign released this statement last night, via email:

"Barack Obama welcomes a debate about terrorism with John McCain, who has fully supported the Bush policies that have taken our eye off of al Qaeda, failed to bring Osama bin Laden to justice, and made us less safe. The fact that John McCain's top advisor says that a terrorist attack on American soil would be a 'big advantage' for their political campaign is a complete disgrace, and is exactly the kind of politics that needs to change. Barack Obama will turn the page on these failed policies and this cynical and divisive brand of politics so that we can unite this nation around a common purpose to finish the fight against al Qaeda," said Obama campaign spokesman Bill Burton.

The Obama campaign holds a conference call with 9/11 Commission member Richard Ben-Veniste today to discuss Black's remarks.

John McCain is doing damage control today after campaign adviser Charlie Black told Fortune magazine that a major terrorist attack on the U.S. could benefit his candidate. From Reuters/AOL News:

Fortune Magazine said Black, in discussing how national security is McCain's strong suit, had said when asked about another terrorist attack on U.S. soil that, "Certainly it would be a big advantage to him."

McCain quickly denounced the remarks, and, of course, wondered about the context:

"If he said that -- and I do not know the context -- I strenuously disagree," McCain told reporters at a news conference in Fresno.

"I cannot imagine why he would say it. It's not true," McCain said, adding that he has worked hard since the September 11 attack to prevent another such attack.

What's really eerie is that McCain and I are in agreement here. I had planned to write a story today about McCain's dimming electoral chances, and the headline I thought of yesterday morning was, "Even an Orange Alert Can't Save McCain."