Q&A on Domestic Spying Program
By KATHERINE SHRADER, Associated Press Writer
The Bush administration faces daily questions about a highly secretive program at the National Security Agency aimed at monitoring terror suspects. Is it legal? Who's targeted?
Some questions and answers about the domestic surveillance program launched shortly after Sept. 11, 2001:
Q: Can the NSA eavesdrop on Americans?
A: Generally, it is prohibited without a court order. But under a directive signed by President Bush, and renewed more than 30 times, the National Security Agency can monitor the international communications of people inside the country, when one party to the call or e-mail is believed to be involved with al-Qaida.
Q: How many people are affected?
A: Only a tight-knit group of government officials know, and they won't say. Attorney General Alberto Gonzales and other senior officials have insisted the program is "targeted" to go after only the most dangerous types of communications — those that may involve al-Qaida inside the United States.
Civil rights groups, scholars, lawyers for Muslim Americans, Democrats and others fear communications may have been more widely monitored.
Q: What did Bush's directive change?
A: In national security investigations, the program eliminated the need to go before a judge for approval of surveillance on U.S. residents.
Previously, government lawyers had to show the Foreign Intelligence Surveillance Court that there was "probable cause" a targeted person was an agent of a foreign power. A federal judge had to approve a warrant, and typically did. Bush's order allowed the NSA — not a judge — to approve the monitoring when officials had a "reasonable basis to believe" one party to the call or e-mail was linked to al-Qaida.
Q: Who decides who is monitored?
A: Last month, Gen. Michael V. Hayden, the government's No. 2 intelligence official, said an NSA shift supervisor makes the call. The former NSA director rephrased his answer this week, saying only a small group of senior military officers or civilian counterterror experts at NSA get to decide, using criteria that has not been disclosed.
Q: How does the surveillance work?
A: Officials won't say. But Hayden said the NSA is not vacuuming up vast amounts of communications and running searches on it. In 2003 alone, U.S. citizens spent 200 billion minutes on international calls. Ethically and practically, he said, the NSA can't be a "drift net."
Despite his words, opponents are concerned the NSA captures a lot.
Q: Has the program foiled terrorist attacks?
A: Administration officials say they have gotten valuable information that otherwise would have gone unnoticed. For security reasons, they do not provide specifics.
Q: Why the uproar?
A: For the administration's critics, the program harkens back to the Nixon administration's wiretapping. It also raises constitutional questions about whether the monitoring is an unreasonable search, prohibited under the Constitution's Fourth Amendment.
Q: Was Congress told?
A: The administration says that members of Congress were briefed more than a dozen times. However, only select lawmakers were present. Called the "Gang of Eight," they include the top Republicans and Democrats in the House and Senate and on the intelligence committees.
In the program's four years, the lawmakers included in that group have changed, so few — if any — attended all the briefings. And some privately say they weren't given all the information they needed.
Q: Has anyone who has been briefed on the program called for its halt?
No. Democrats, including California Rep. Jane Harman (news, bio, voting record), the intelligence committee's top Democrat, have complained about the size of the briefings and legal questions they want answered.
But none has said the program should end. Harman says she believes the program "is essential to U.S. national security."
Q: Did the White House consider asking Congress to change the law?
A: Yes. Although Bush says he has adequate legal authority now, Gonzales said the administration considered proposing changes to the Foreign Intelligence Surveillance Act in 2004. The attorney general said congressional leaders believed that move would jeopardize the program.
Some Democrats are quietly arguing the administration thought it was on shaky ground in 2003. A draft bill proposed giving legal cover to federal officials who conduct unauthorized surveillance ordered by the president or attorney general. That update to the Patriot Act, leaked to an interest group, was never introduced in Congress.
Q: Some people have sued the government, saying they believe their conversations might have been intercepted. How can they know?
A: They can't. At least two federal lawsuits are based on a belief that the individuals may have engaged in conversations that would have attracted the NSA's attention. If the courts allow the cases to proceed, the government may be forced to disclose information about the program and its targets.
Q: What is the NSA anyway?
A: The NSA is the largest of the nation's 15 spy agencies. Its 30,000 workers worldwide are charged with protecting U.S. information systems and eavesdropping on adversaries. They take pride in the nickname, "Never Say Anything," and adequate distance from Washington — the headquarters is at Fort Meade, Md. — to ensure a healthy population of Baltimore Ravens football fans.
Saturday, January 28, 2006
Friday, January 27, 2006
From John Kerry:
Yesterday, Senator Ted Kennedy and I told our colleagues that we supported a filibuster of Judge Alito's nomination for the Supreme Court. And we weren't alone. But the bottom line is that it takes more than two or three people to filibuster successfully. It's not "Mr. Smith Goes to Washington." If you want to stop Judge Alito from becoming Justice Alito, use your own email list and organize. We can't just preach to our own choir. We need to prove to everyone - from our friends and neighbors to our fellow Senators - that the American people know Judge Alito will take our country in the wrong direction, and they expect something to be done about it.
So I'm asking you to join Senator Kennedy, me, and concerned citizens across America who are signing this petition to support a filibuster. If there was ever a time to forward an email on to friends and family, this is it. One way or another, we're going to find out in the next few days if Judge Alito is going to become Justice Alito. You know where I stand. The time to make your voice heard is now. So please sign this filibuster petition and get as many friends as you can to do the same.
Sign the filibuster petition
If Judge Alito gets on the Supreme Court, it will be an incredible mistake for America. And remember, this is one mistake that we can never take back.
I voted against Justice Roberts, but I feel even more strongly about Judge Alito. Why? Rather than live up to the promise of "equal justice under the law," he has consistently made it harder for the most disadvantaged Americans to have their day in court. He routinely defers to excessive government power no matter how much government abuses that power. And, to this date, his only statement on record regarding a woman's right to privacy is that she doesn't have one.
There isn't a shred of doubt in my opposition to Judge Alito's nomination. I spent a lot of time over the last few years thinking about what kind of person deserves to sit on the highest court in the land, so I don't hesitate a minute in saying that Judge Alito is not that person. His entire legal career shows that, if confirmed, he will take America backward. People can say all they want that "elections have consequences." Trust me, I understand. But that doesn't mean we have to stay silent about Judge Alito's nomination.
Sign the filibuster petition
President Bush had the opportunity to nominate someone who would unite the country in a time of extreme division. He chose not to do this, and that is his right. But we have every right -- in fact, we have a responsibility -- to fight against a radical ideological shift on the Supreme Court. This nomination was a sellout to the demands of the extreme right wing of the Republican Party. The president gave no thought to what the American people really wanted - or needed. So now that the president and Judge Alito have proven they won't stand up for the majority of Americans, we have to stand up. We have to speak out. That's the true meaning of "advice and consent."
Posted by politicalstuff at 6:35 PM
Mayors asked to prep for bird flu
WASHINGTON (AP) — Many of the nation's mayors said Thursday it's a challenge making bird flu preparation a priority when their citizens are focused on other things like jobs, education and transportation.
"It's not something you hear about when you go to Wal-Mart: 'Mayor, we've got to do this," said Carlos Mayans, mayor of Wichita
Still, they say they're making preparations. (Related graphic: Understanding the bird flu)
"We're often confronted in local government with the fact that we have real, everyday needs right in front of us that have to be dealt with, but we also have the long-term kind of planning and investment that has to take place as well," said David Berger, mayor of Lima, Ohio. "A lot of that happens behind the scenes, happens quietly."
If a global pandemic does strike, the nation's cities and towns cannot expect the federal government to save them, members of The United States Conference of Mayors were told Thursday.
"Any community that fails to prepare — with the expectation that the federal government can or will offer a lifeline — will be tragically wrong," said Alex Azar, deputy secretary for the Department of Health and Human Services.
A flu virus currently circulating among birds, the H5N1 virus, has infected 148 people and killed 79, mostly in Southeast Asia. Scientists are concerned the virus could mutate and travel from person to person, which could lead to a pandemic.
Azar told the mayors they should plan for a worst-case scenario, the kind that occurred in 1918. Using that scenario, about 30% of their community would become ill, and half of those people would need significant medical attention. About 2% of the community would die.
"If you run a small business where you employ 100 people, or you're a principal of a school with 100 faculty members, you need to plan on how you would operate if 30 to 40 of your people are absent from your workforce" during each wave of a pandemic, he said.
Seattle Mayor Greg Nickels told the mayors that his city is planning for massive absenteeism by training workers to perform different jobs, expanding the use of telecommuting and looking at relaxing sick day policies,
"The question I think each of us is going to need to ask ourselves is: What are the local government services that are critical to provide? And how do we deliver those services when up to a third of your workforce is out sick?" Nickels said.
Congress recently approved $350 million in funding to help them plan for pandemic influenza. Each state will get a minimum of $500,000 with additional allocations based on population. Some of that money has already been sent out. About $250 million will be awarded later this year, but communities will be required to meet guidelines designed to measure performance, Azar said.
Mayans, the Wichita mayor, said he would heed Azar's message.
"I think we should make it a priority. I'm not saying that it's a front-burner in our part of the country, but it's certainly something we need to be aware of, because something could happen," he said.
Mayors of small towns also said they would raise the issue when they return home.
"I don't think our constituents think it's real. As with so many things, it seems to be so blown out of proportion. And, frankly, this generation has not witnessed anything like this," said Richard Ward of Hurst, Texas. "But I did take some notes during this meeting, and we are going to prepare."
Find this article at:
Posted by politicalstuff at 4:09 PM
Coulter jokes about poisoning Justice
LITTLE ROCK (AP) — Conservative commentator Ann Coulter, speaking at a traditionally black college, joked that Justice John Paul Stevens should be poisoned.
Coulter had told the Philander Smith College audience Thursday that more conservative justices were needed on the Supreme Court to change the current law on abortion. Stevens is one of the court's most liberal members.
"We need somebody to put rat poisoning in Justice Stevens' creme brulee," Coulter said.
"That's just a joke, for you in the media."
Coulter has made a career of writing and lecturing on her strongly conservative views.
At one point during her address, which was part of a lecture series, some audience members booed when she cut off two questioners. "I'm not going to be lectured to," Coulter told one man in a raised voice.
She drew more boos when she said the crack cocaine problem "has pretty much gone away."
Find this article at:
Posted by politicalstuff at 4:05 PM
Thursday, January 26, 2006
Administration Flip-Flopped on FISA
So this is how good journalism operates in the 21st century: credible blogger digs up great scoop, the always-out-in-front Knight Ridder runs with it, and the "papers of record" finally take notice. And the blogger gets proper credit.
Glenn Greenwald has been pursuing the warrantless eavesdropping story at Unclaimed Territory, where he argued on Tuesday that "The Administration's new FISA defense is factually false." And he's got the goods:
In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:
to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .
In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.
He has a lot of documentation and some good arguments at his site. Persuasive stuff. KR followed up on Wednesday:
President Bush, Attorney General Alberto Gonzales and other top officials now argue that warrantless eavesdropping is necessary in part because complying with the FISA law is too burdensome and impedes the government's ability to rapidly track communications between suspected terrorists.
In its 2002 statement, the Justice Department said it opposed a legislative proposal to change FISA to make it easier to obtain warrants that would allow the super-secret National Security Agency to listen in on communications involving non-U.S. citizens inside the United States.
Today, senior U.S. officials complain that FISA prevents them from doing that.
The Washington Post kicks in on Thursday: "The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard."
The Los Angeles Times, according to Daily Kos diarist EZ Rider, will also be weighing in later today:
[A] Justice Department spokesman confirmed Wednesday the administration opposed changing the law in 2002 in part because it did not want to publicly debate the issue.
``There was a conscious choice not to have a public discussion about it. It could have exposed the program. This was a military defense intelligence program,'' said the spokesman, who asked not be named because of the sensitivity surrounding the still-classified presidential order on wiretapping.
Posted by politicalstuff at 1:58 AM
Patriot Act Talks Hit Roadblock On Privacy Issue
By Charles Babington
Washington Post Staff Writer
Efforts to resolve House and Senate differences over a revised USA Patriot Act have reached a stalemate, a key committee chairman said yesterday. That means the current version of the law is likely to remain in place through next month or longer unless Senate Democrats and a handful of Republicans drop their demands for greater privacy safeguards in a proposed renewal, the chairman said.
But another senator said that the Bush administration continues to discuss possible changes, and that a resolution of the impasse is still possible.
The law, passed in the wake of the Sept. 11, 2001, terrorist attacks, makes it easier for federal agents to secretly tap phones, obtain library and bank records, and search the homes of suspected terrorists. Many major provisions were scheduled to expire Dec. 31, but lawmakers extended them to Feb. 3 in hopes of resolving a House-Senate impasse on how to renew the act, with some changes, for four years.
Senate Democrats objected to the revision that emerged from a conference committee last year. When four Republicans joined them, they had a filibuster-proof contingent, preventing the proposal from winning Senate passage.
The chief House negotiator -- Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) -- has said his chamber is finished with talks, dimming hopes for a breakthrough. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) had accepted the House-Senate compromise as a less-than-perfect option. Yesterday, he told colleagues that it probably is the best deal they can get.
"I can tell you, after talking to Chairman Sensenbrenner, that the House feels that they've gone as far as they can go on compromises on the act," Specter told colleagues. "And I think the reality may be that we're looking at either the current act extended [beyond Feb. 3], or the conference report," which continues to draw opposition from most Senate Democrats and four Republicans.
One of the four -- Sen. John E. Sununu (R-N.H.) -- said in an interview yesterday that in recent days he has held discussions with administration officials focused on "the few specific areas where we think the conference report can be improved." If a compromise cannot be reached by Feb. 3, he said, another short-term extension may provide the needed time.
The main disagreements center on provisions that allow FBI agents to obtain records on terrorism suspects, who have very limited options for challenging such searches. Specter has said the law allows adequate "judicial review" of proposed searches. But Sununu and his allies say the law makes it virtually impossible for targeted people to prevail, even if they have no ties to terrorism.
Posted by politicalstuff at 1:57 AM
White House Dismissed '02 Surveillance Proposal
By Dan Eggen
Washington Post Staff Writer
The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.
The proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a "reasonable suspicion" they were connected to terrorism -- a lower standard than the "probable cause" requirement in the statute that governs the warrants.
The administration has contended that it launched a secret program of warrantless domestic eavesdropping by the National Security Agency in part because of the time it takes to obtain such secret warrants from federal judges under the Foreign Intelligence Surveillance Act (FISA).
The wiretapping program, ordered by President Bush in 2001, is used when intelligence agents have a "reasonable basis to believe" that a target is tied to al Qaeda or related groups, according to recent statements by administration officials. It can be used on U.S. citizens as well as foreign nationals, without court oversight.
Democrats and national security law experts who oppose the NSA program say the Justice Department's opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.
"It's entirely inconsistent with their current position," said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. "The only reason to do what they've been doing is because they wanted a lower standard than 'probable cause.' A member of Congress offered that to them, but they turned it down."
But Justice Department officials disagreed, saying the standard the department opposed in 2002 is legally different from the one used by the NSA.
"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."
Justice officials also said that even under a different standard, the process of obtaining a surveillance warrant would take longer than is necessary for the NSA to efficiently track suspected terrorists.
The DeWine amendment -- first highlighted this week by Internet blogger Glenn Greenwald and widely publicized yesterday by the Project on Government Secrecy, an arm of the Federation of American Scientists -- is the latest point of contention in a fierce political and legal battle over the NSA monitoring program.
Many Democrats and some Republicans, along with legal experts from both sides, have criticized the program as a clear violation of the 1978 FISA law, which makes it a crime to conduct domestic surveillance without a criminal or intelligence warrant. The administration argues that Bush acted legally under the congressional authorization to use military force against al Qaeda, and that FISA would be unconstitutional if it constrains his power as commander in chief.
During separate appearances this week, Gonzales and Gen. Michael V. Hayden, the deputy intelligence chief, also said the legal requirements under FISA made it difficult for intelligence agents to act quickly enough in many cases.
Under the NSA program, Hayden said, "the trigger is quicker and a bit softer than it is for a FISA warrant."
During Senate debate over DeWine's amendment in July 2002, James A. Baker, the Justice Department's counsel for intelligence policy, said in a statement that the Bush administration did not support the proposal "because the proposed change raises both significant legal and practical issues."
Baker said it was "not clear cut" whether the proposal would "pass constitutional muster," and "we could potentially put at risk ongoing investigations and prosecutions" if the amendment was later struck down by the courts. He also said Justice had been using FISA aggressively and played down the notion that the probable cause standard was too high.
A DeWine spokesman declined to comment on the issue yesterday.
Also yesterday, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) sent a list of 15 sharply worded questions to Gonzales in preparation for a Feb. 6 hearing on the legality of the NSA program. Specter asks, among other things, why the government did not ask Congress for new legislation to allow the spying.
Posted by politicalstuff at 1:56 AM
The New York Times
E.P.A. Seeks to Phase Out a Toxic Chemical
By MICHAEL JANOFSKY
WASHINGTON, Jan. 25 — The Environmental Protection Agency has asked DuPont and seven other chemical companies to stop using a toxic substance in the making of everyday products, including Teflon-coated pans, that has been linked in some studies to cancer, strokes and other health problems.
Announcing the voluntary program, officials of the agency said Wednesday that full compliance by the companies and their overseas affiliates would lead to a 95 percent reduction by 2010 in use of the substance, perfluorooctanoic acid, or PFOA, and to their total elimination by 2015.
DuPont immediately pledged to join the program, saying it had already reduced its PFOA manufacturing emissions by 94 percent and had developed new technologies that could reduce PFOA content in products by more than 97 percent. The other companies are expected to commit to the program as well. They are 3M/Dyneon, Arkema, Asahi, Ciba, Clariant, Daikin and Solvay Solexis.
PFOA makes high-performance plastics resistant to fire, grease and stains. Its presence may be best known in Teflon, made by DuPont, but it is also found in fabrics, leather, automobile parts, wire insulation and microwave popcorn bags.
Uncertainties still surround the way PFOA exposure affects humans, and as part of the new program, the companies will provide test data so that those questions can be explored.
"The science is still coming in, but the concern is there, so acting now to minimize future releases of PFOA is the right thing to do," said Susan B. Hazen, acting assistant administrator of the agency's Office of Prevention, Pesticides and Toxic Substances.
Posted by politicalstuff at 1:55 AM
Rumsfeld rejects criticism on harm to US military
By Will Dunham
WASHINGTON (Reuters) - Defense Secretary Donald Rumsfeld defended the state of U.S. military on Wednesday after charges by a former Pentagon chief that wars in Iraq and Afghanistan have left it so stretched that potential enemies may be tempted to challenge America.
"Anyone with an ounce of sense would see it exactly opposite," Rumsfeld said of a report by William Perry, defense secretary from 1994-97, and other senior officials who served under former Democratic President Bill Clinton.
That report and another commissioned by the Pentagon were the latest to warn of a looming crisis for the all-volunteer military amid large ongoing troop deployments to Iraq and Afghanistan.
But Rumsfeld refused to give an inch. "The force is not broken," Rumsfeld told a Pentagon briefing. "This armed force is enormously capable."
"So I'd read very carefully what these reports are saying and ask yourself the question: Do the authors of them really have a clear understanding of what's gone on in this department in the last five years?" Rumsfeld said.
Perry's report forecast problems recruiting new soldiers and retaining current ones as troops face repeated overseas combat tours, and cited critical equipment shortfalls. It said the Army and Marine Corps cannot sustain the current operational tempo indefinitely without sustaining real damage.
"If the strain is not relieved, it will have highly corrosive and long-term effects on the military," Perry told a news conference.
"We believe that the Bush administration has broken faith with the American soldier and Marine," the report said, citing poor planning for bringing stability to Iraq, too few troops there to do so at an acceptable level of risk, and inadequate equipment and protection for deployed troops.
It said these failures caused "a real risk of 'breaking the force.'"
The report's contributors included former Secretary of State Madeleine Albright; former national security adviser Samuel Berger; retired Army Gen. John Shalikashvili, former chairman of the Joint Chiefs of Staff; and retired Army Gen. Wesley Clark, former supreme allied commander of NATO.
"The absence of a credible strategic reserve in our ground forces increases the risk that potential adversaries will be tempted to challenge the United States," the report said.
"Although the United States can still deploy air, naval, and other more specialized assets to deter or respond to aggression, the visible overextension of our ground forces could weaken our ability to deter aggression."
Albright said the situation limited U.S. options in dealing with the likes of North Korea and Iran.
Rumsfeld said he had not read the report but argued its criticisms were "either out of date or just misdirected."
"I would say that it (the military) is not only capable of functioning in a very effective way and, therefore, ought to increase the deterrent rather than weaken it. In addition, it's battle-hardened and is not a peacetime force that has been in barracks or garrisons," Rumsfeld said.
The separate report, commissioned by the Pentagon, also warned of damage to the Army amid the ongoing deployments and suggested the forecast decrease in the number of troops in Iraq this year was intended to reduce the strain on the Army. It was written by Andrew Krepinevich, a retired Army officer and leading think tank expert.
(Additional reporting by Vicki Allen)
Posted by politicalstuff at 1:52 AM
Wednesday, January 25, 2006
The Other Big Brother: The Pentagon has its own domestic spying program. Even its leaders say the outfit may have gone too far.
The Other Big Brother
The Pentagon has its own domestic spying program. Even its leaders say the outfit may have gone too far.
By Michael Isikoff
Jan. 30, 2006 issue - The demonstration seemed harmless enough. Late on a June afternoon in 2004, a motley group of about 10 peace activists showed up outside the Houston headquarters of Halliburton, the giant military contractor once headed by Vice President Dick Cheney. They were there to protest the corporation's supposed "war profiteering." The demonstrators wore papier-mache masks and handed out free peanut-butter-and-jelly sandwiches to Halliburton employees as they left work. The idea, according to organizer Scott Parkin, was to call attention to allegations that the company was overcharging on a food contract for troops in Iraq. "It was tongue-in-street political theater," Parkin says.
But that's not how the Pentagon saw it. To U.S. Army analysts at the top-secret Counterintelligence Field Activity (CIFA), the peanut-butter protest was regarded as a potential threat to national security. Created three years ago by the Defense Department, CIFA's role is "force protection"—tracking threats and terrorist plots against military installations and personnel inside the United States. In May 2003, Paul Wolfowitz, then deputy Defense secretary, authorized a fact-gathering operation code-named TALON—short for Threat and Local Observation Notice—that would collect "raw information" about "suspicious incidents." The data would be fed to CIFA to help the Pentagon's "terrorism threat warning process," according to an internal Pentagon memo.
A Defense document shows that Army analysts wrote a report on the Halliburton protest and stored it in CIFA's database. It's not clear why the Pentagon considered the protest worthy of attention—although organizer Parkin had previously been arrested while demonstrating at ExxonMobil headquarters (the charges were dropped). But there are now questions about whether CIFA exceeded its authority and conducted unauthorized spying on innocent people and organizations. A Pentagon memo obtained by NEWSWEEK shows that the deputy Defense secretary now acknowledges that some TALON reports may have contained information on U.S. citizens and groups that never should have been retained. The number of reports with names of U.S. persons could be in the thousands, says a senior Pentagon official who asked not be named because of the sensitivity of the subject.
CIFA's activities are the latest in a series of disclosures about secret government programs that spy on Americans in the name of national security. In December, the ACLU obtained documents showing the FBI had investigated several activist groups, including People for the Ethical Treatment of Animals and Greenpeace, supposedly in an effort to discover possible ecoterror connections. At the same time, the White House has spent weeks in damage-control mode, defending the controversial program that allowed the National Security Agency to monitor the telephone conversations of U.S. persons suspected of terror links, without obtaining warrants.
Last Thursday, Cheney called the program "vital" to the country's defense against Al Qaeda. "Either we are serious about fighting this war on terror or not," he said in a speech to the Manhattan Institute, a conservative think tank. But as the new information about CIFA shows, the scope of the U.S. government's spying on Americans may be far more extensive than the public realizes.
It isn't clear how many groups and individuals were snagged by CIFA's dragnet. Details about the program, including its size and budget, are classified. In December, NBC News obtained a 400-page compilation of reports that detailed a portion of TALON's surveillance efforts. It showed the unit had collected information on nearly four dozen antiwar meetings or protests, including one at a Quaker meetinghouse in Lake Worth, Fla., and a Students Against War demonstration at a military recruiting fair at the University of California, Santa Cruz. A Pentagon spokesman declined to say why a private company like Halliburton would be deserving of CIFA's protection. But in the past, Defense Department officials have said that the "force protection" mission includes military contractors since soldiers and Defense employees work closely with them and therefore could be in danger.
CIFA researchers apparently cast a wide net and had a number of surveillance methods—both secretive and mundane—at their disposal. An internal CIFA PowerPoint slide presentation recently obtained by William Arkin, a former U.S. Army intelligence analyst who writes widely about military affairs, gives some idea how the group operated. The presentation, which Arkin provided to NEWSWEEK, shows that CIFA analysts had access to law-enforcement reports and sensitive military and U.S. intelligence documents. (The group's motto appears at the bottom of each PowerPoint slide: "Counterintelligence 'to the Edge'.") But the organization also gleaned data from "open source Internet monitoring." In other words, they surfed the Web.
That may have been how the Pentagon came to be so interested in a small gathering outside Halliburton. On June 23, 2004, a few days before the Halliburton protest, an ad for the event appeared on houston.indymedia.org, a Web site for lefty Texas activists. "Stop the war profiteers," read the posting. "Bring out the kids, relatives, Dick Cheney, and your favorite corporate pigs at the trough as we will provide food for free."
Four months later, on Oct. 25, the TALON team reported another possible threat to national security. The source: a Miami antiwar Web page. "Website advertises protest planned at local military recruitment facility," the internal report warns. The database entry refers to plans by a south Florida group called the Broward Anti-War Coalition to protest outside a strip-mall recruiting office in Lauderhill, Fla. The TALON entry lists the upcoming protest as a "credible" threat. As it turned out, the entire event consisted of 15 to 20 activists waving a giant BUSH LIED sign. No one was arrested. "It's very interesting that the U.S. military sees a domestic peace group as a threat," says Paul Lefrak, a librarian who organized the protest.
Arkin says a close reading of internal CIFA documents suggests the agency may be expanding its Internet monitoring, and wants to be as surreptitious as possible. CIFA has contracted to buy "identity masking" software that would allow the agency to create phony Web identities and let them appear to be located in foreign countries, according to a copy of the contract with Computer Sciences Corp. (The firm declined to comment.)
Pentagon officials have broadly defended CIFA as a legitimate response to the domestic terror threat. But at the same time, they acknowledge that an internal Pentagon review has found that CIFA's database contained some information that may have violated regulations. The department is not allowed to retain information about U.S. citizens for more than 90 days—unless they are "reasonably believed" to have some link to terrorism, criminal wrongdoing or foreign intelligence. There was information that was "improperly stored," says a Pentagon spokesman who was authorized to talk about the program (but not to give his name). "It was an oversight." In a memo last week, obtained by NEWSWEEK, Deputy Defense Secretary Gordon England ordered CIFA to purge such information from its files—and directed that all Defense Department intelligence personnel receive "refresher training" on department policies.
That's not likely to stop the questions. Last week Democrats on the Senate intelligence committee pushed for an inquiry into CIFA's activities and who it's watching. "This is a significant Pandora's box [Pentagon officials] don't want opened," says Arkin. "What we're looking at is hints of what they're doing." As far as the Pentagon is concerned, that means we've already seen too much.
Posted by politicalstuff at 1:12 AM
The New York Times
After Subpoenas, Internet Searches Give Some Pause
By KATIE HAFNER
Kathryn Hanson, a former telecommunications engineer who lives in Oakland, Calif., was looking at BBC News online last week when she came across an item about a British politician who had resigned over a reported affair with a "rent boy."
It was the first time Ms. Hanson had seen the term, so, in search of a definition, she typed it into Google. As Ms. Hanson scrolled through the results, she saw that several of the sites were available only to people over 18. She suddenly had a frightening thought. Would Google have to inform the government that she was looking for a rent boy - a young male prostitute?
Ms. Hanson, 45, immediately told her boyfriend what she had done. "I told him I'd Googled 'rent boy,' just in case I got whisked off to some Navy prison in the dead of night," she said.
Ms. Hanson's reaction arose from last week's reports that as part of its effort to uphold an online pornography law, the Justice Department had asked a federal judge to compel Google to turn over records on millions of its users' search queries. Google is resisting the request, but three of its competitors - Yahoo, MSN and America Online - have turned over similar information.
The government and the cooperating companies say the search queries cannot be traced to their source, and therefore no personal information about users is being given up. But the government's move is one of several recent episodes that have caused some people to think twice about the information they type into a search engine, or the opinions they express in an e-mail message.
The government has been more aggressive recently in its efforts to obtain data on Internet activity, invoking the fight against terrorism and the prosecution of online crime. A surveillance program in which the National Security Agency intercepted certain international phone calls and e-mail in the United States without court-approved warrants prompted an outcry among civil libertarians. And under the antiterrorism USA Patriot Act, the Justice Department has demanded records on library patrons' Internet use.
Those actions have put some Internet users on edge, as they confront the complications and contradictions of online life.
Jim Kowats, 34, a television producer who lives in Washington, has been growing increasingly concerned about the government's data collection efforts. "I'm not a conspiracy theorist, I just feel like it's one step away from ... what's the next step?" Mr. Kowats said. "The government's going to start looking into all this other stuff."
Until last year, Mr. Kowats worked at the Discovery Channel, and a few years ago, in the course of putting together a documentary on circumcision, he and his colleagues were doing much of the research online. "When you're researching something like that and you look up the word 'circumcision,' you're going to end up with all kinds of pictures of naked children," he said. "And that can be misconstrued."
"There're so many things you can accidentally fall into when you're surfing on the Internet," he said. "I mean, you can type in almost anything and you're going to end up with something you didn't expect."
Privacy is an elusive concept, and when it comes to what is considered acceptable, people tend to draw the line at different points on the privacy spectrum.
Ming-Wai Farrell, 25, who works for a legal industry trade association in Washington, is one of those who draw the line somewhere in the middle. They are willing to part with personal information as long as they get something in return - the convenience of online banking, for example, or useful information from a search engine - and as long as they know what is to be done with the information.
Yet these same people are sometimes appalled when they learn of wholesale data gathering. Ms. Farrell said she would not be able to live without online banking, electronic bill paying or Google, but she would consider revising her Web activity if she had to question every search term, online donation or purchase.
"It's scary to think that it may just be a matter of time before Googling will invite an F.B.I. agent to tap your phone or interrogate you," Ms. Farrell said.
Mike Winkleman, 27, a law student who lives in Miami and, like Ms. Farrell, belongs to the generation of people who came of age with the Internet, said he would like to think that the erosion of his privacy was for "a good cause, like national security or preventing child porn," he said. "But I can't help but feel that for each inch I give, a mile will be taken."
But Josh Cohen, a financial adviser in Chicago, identifies more closely with a subset of Internet users who see the loss of at least some privacy as the price they pay for being on the Web. Mr. Cohen, 34, said he was willing to accept that tradeoff in the pursuit of national security.
"We as U.S. citizens have got to start making concessions," he said. "In order for the government to catch people that prey on children, or fight the war on terror, they are going to need the help of the search engines."
Mr. Cohen said he doubted there would be much compromising of his individual privacy because the amount of data collected by the government was so voluminous. "My rationale tells me that with close to 300 million people in the U.S., and about 45 to 50 percent of households having Internet access, that I don't need to be too concerned with my search engine behavior," he said.
Susan P. Crawford, a professor at the Cardozo School of Law in New York, agreed that the sheer volume of information obtained by the government was likely to dilute privacy threats.
"More experienced Internet users would understand that in the mountain of search-related data available in response to a subpoena, it is very unlikely that anything referring to them personally would be revealed," Professor Crawford said.
She likened one's online activity to walking down the street. "We walk down the street all the time and we can be seen there," she said. "We also move around online, and can be 'seen' to some extent there as well. But we continue to go for walks."
Nevertheless, last week's court motion is giving some people pause. Sheryl Decker, 47, an information technology manager in Seattle, said she was now thinking twice about what she said in her personal e-mail correspondence. "I have been known to send very unflattering things about our government and our president," Ms. Decker said. "I still do, but I am careful about using certain phrases that I once wouldn't have given a second thought."
Ms. Decker's caution is being echoed by others. Genny Ballard, 36, a professor of Spanish at Centre College in Danville, Ky., said she had grown more conscious about what she typed into the Google search box. "Each time I put something in, I think about how it could be reconstructed to mean that I have more than an academic curiosity," Ms. Ballard said.
To be sure, Google is citing a number of reasons for resisting the government's subpoena, including concern about trade secrets and the burden of compliance. While it does not directly assert that surrendering the data would expose personal information, it has told the government that "one can envision scenarios where queries alone could reveal identifying information about a specific Google user, which is another outcome that Google cannot accept."
Ms. Hanson, who did the "rent boy" search, said that although she was aware that personal information was not being required in the Google case, she remained uneasy.
She pointed to a continuing interest she has in the Palestinian elections. "If I followed my curiosity and did some Web research, going to Web sites of the parties involved, I would honestly wonder whether someone in my government would someday see my name on a list of people who went to 'terrorist' Web sites," she said.
Mr. Kowats, the television producer, shares that fear. "Where does it stop?" he said. "What about file sharing? Scalping tickets? Or traveling to Cuba? What if you look up abortion? Who says you can't look up those things? What are the limits? It's the little chipping away. It's a slippery slope."
David Bernstein and Michael Falcone contributed reporting for this article.
Posted by politicalstuff at 1:05 AM
Politics Alleged In Voting Cases
Justice Officials Are Accused of Influence
By Dan Eggen
Washington Post Staff Writer
The Justice Department's voting section, a small and usually obscure unit that enforces the Voting Rights Act and other federal election laws, has been thrust into the center of a growing debate over recent departures and controversial decisions in the Civil Rights Division as a whole.
Many current and former lawyers in the section charge that senior officials have exerted undue political influence in many of the sensitive voting-rights cases the unit handles. Most of the department's major voting-related actions over the past five years have been beneficial to the GOP, they say, including two in Georgia, one in Mississippi and a Texas redistricting plan orchestrated by Rep. Tom DeLay (R) in 2003.
The section also has lost about a third of its three dozen lawyers over the past nine months. Those who remain have been barred from offering recommendations in major voting-rights cases and have little input in the section's decisions on hiring and policy.
"If the Department of Justice and the Civil Rights Division is viewed as political, there is no doubt that credibility is lost," former voting-section chief Joe Rich said at a recent panel discussion in Washington. He added: "The voting section is always subject to political pressure and tension. But I never thought it would come to this."
Attorney General Alberto R. Gonzales and his aides dispute such criticism and defend the department's actions in voting cases. "We're not going to politicize decisions within the department," he told reporters last month after The Washington Post had disclosed staff memoranda recommending objections to a Georgia voter-identification plan and to the Texas redistricting.
The 2005 Georgia case has been particularly controversial within the section. Staff members complain that higher-ranking Justice officials ignored serious problems with data supplied by the state in approving the plan, which would have required voters to carry photo identification.
Georgia provided Justice with information on Aug. 26 suggesting that tens of thousands of voters may not have driver's licenses or other identification required to vote, according to officials and records. That added to the concerns of a team of voting-section employees who had concluded that the Georgia plan would hurt black voters.
But higher-ranking officials disagreed, and approved the plan later that day. They said that as many as 200,000 of those without ID cards were felons and illegal immigrants and that they would not be eligible to vote anyway.
One of the officials involved in the decision was Hans von Spakovsky, a former head of the Fulton County GOP in Atlanta, who had long advocated a voter-identification law for the state and oversaw many voting issues at Justice. Justice spokesman Eric W. Holland said von Spakovsky's previous activities did not require a recusal and had no impact on his actions in the Georgia case.
Holland denied a request to interview von Spakovsky, saying that department policy "does not authorize the media to conduct interviews with staff attorneys." Von Spakovsky has since been named to the Federal Election Commission in a recess appointment by President Bush.
In written answers to questions from The Post, Holland called allegations of partisanship in the voting section "categorically untrue." He said the Bush administration has approved the vast majority of the approximately 3,000 redistricting plans it has reviewed, including many drawn up by Democrats.
Holland and other Justice officials also emphasize the Bush administration's aggressive enforcement of laws requiring foreign-language ballot information in districts where minorities make up a significant portion of the population. Since 2001, the division has filed 14 lawsuits to provide comprehensive language programs for minorities, including the first aimed at Filipino and Vietnamese voters, he said.
"We have undertaken the most vigorous enforcement of the language minority provisions of the Voting Rights Act in its history," Holland said.
Some lawyers who have recently left the Civil Rights Division, such as Rich at the Lawyers' Committee for Civil Rights Under Law and William Yeomans at the American Constitution Society, have taken the unusual step of publicly criticizing the way voting matters have been handled. Other former and current employees have discussed the controversy on the condition of anonymity for fear of retribution.
These critics say that the total number of redistricting cases approved under Bush means little because the section has always cleared the vast majority of the hundreds of plans it reviews every year.
The Bush administration has also initiated relatively few cases under Section 2, the main anti-discrimination provision of the Voting Rights Act, filing seven lawsuits over the past five years -- including the department's first reverse-discrimination complaint on behalf of white voters. The only case involving black voters was begun under the previous administration and formally filed by transitional leadership in early 2001.
By comparison, department records show, 14 Section 2 lawsuits were filed during the last two years of Bill Clinton's presidency alone.
Conflicts in the voting-rights arena at Justice are not new, particularly during Republican administrations, when liberal-leaning career lawyers often clash with more conservative political appointees, experts say. The conflicts have been further exacerbated by recent court rulings that have made it more difficult for Justice to challenge redistricting plans.
William Bradford Reynolds, the civil rights chief during the Reagan administration, opposed affirmative-action remedies and court-ordered busing -- and regularly battled with career lawyers in the division as a result. During the administration of George H.W. Bush, the division aggressively pushed for the creation of districts that were more than 60 percent black in a strategy designed to produce more solidly white and Republican districts in the South.
These districts were widely credited with boosting the GOP in the region during the 1994 elections.
Rich, who worked in the Civil Rights Division for 37 years, said the conflicts in the current administration are more severe than in earlier years. "I was there in the Reagan years, and this is worse," he said.
But Michael A. Carvin, a civil rights deputy under Reagan, said such allegations amount to "revisionist history." He contended that the voting section has long tilted to the left politically.
Carvin and other conservatives also say the opinions of career lawyers in the section frequently have been at odds with the courts, including a special panel in Texas that rejected challenges to the Republican-sponsored redistricting plan there. The Supreme Court has since agreed to hear the case.
"The notion that they are somehow neutral or somehow ideologically impartial is simply not supported by the evidence," Carvin said. "It hasn't been the politicos that were departing from the law or normal practice, but the voting-rights section."
In Mississippi in 2002, Justice political appointees rejected a recommendation from career lawyers to approve a redistricting plan favorable to Democrats. While Justice delayed issuing a final decision, a panel of three GOP federal judges approved a plan favorable to a Republican congressman.
The division has also issued unusually detailed legal opinions favoring Republicans in at least two states, contrary to what former staff members describe as a dictum to avoid unnecessary involvement in partisan disputes. The practice ended up embarrassing the department in Arizona in 2005, when Justice officials had to rescind a letter that wrongly endorsed the legality of a GOP bill limiting provisional ballots.
In Georgia, a federal judge eventually ruled against the voter identification plan on constitutional grounds, likening it to a poll tax from the Jim Crow era. The measure would have required voters to pay $20 for a special card if they did not have photo identification; Georgia Republicans are pushing ahead this year with a bill that does not charge a fee for the card.
Holland called the data in the case "very straightforward," and said it showed statistically that 100 percent of Georgians had identification and that no racial disparities were evident.
But an Aug. 25 staff memo that recommended opposing the plan disparaged the quality of the state's information and said that only limited conclusions could be drawn from it.
"They took all that data and willfully misread it," one source familiar with the case said. "They were only looking for statistics that would back up their view."
Mark Posner, a former longtime Civil Rights Division lawyer who teaches election law at American University, noted that Justice could have taken as many as 60 more days -- rather than seven hours -- to issue an opinion because of the new data.
Staff writer Thomas B. Edsall and researcher Julie Tate contributed to this report.
Posted by politicalstuff at 1:03 AM
Closed-Door Deal Makes $22 Billion Difference; GOP Negotiators Criticized for Change In Measure on HMOs
Closed-Door Deal Makes $22 Billion Difference
GOP Negotiators Criticized for Change In Measure on HMOs
By Jonathan Weisman
Washington Post Staff Writer
House and Senate GOP negotiators, meeting behind closed doors last month to complete a major budget-cutting bill, agreed on a change to Senate-passed Medicare legislation that would save the health insurance industry $22 billion over the next decade, according to the nonpartisan Congressional Budget Office.
The Senate version would have targeted private HMOs participating in Medicare by changing the formula that governs their reimbursement, lowering payments $26 billion over the next decade. But after lobbying by the health insurance industry, the final version made a critical change that had the effect of eliminating all but $4 billion of the projected savings, according to CBO and other health policy experts.
That change was made in mid-December during private negotiations involving House Ways and Means Chairman Bill Thomas (R-Calif.), Senate Finance Committee Chairman Charles E. Grassley (R-Iowa) and the staffs of those committees as well as the House Energy and Commerce Committee. House and Senate Democrats were excluded from the meeting. The Senate gave final approval to the budget-cutting measure on Dec. 21, but the House must give it final consideration early next month.
The change in the Medicare provision underscores a practice that growing numbers of lawmakers from both parties want addressed. More than ever, Republican congressional lawmakers and leaders are making vital decisions, involving far-reaching policies and billions of dollars, without the public -- or even congressional Democrats -- present.
The corruption scandal involving Republican former lobbyist Jack Abramoff and the bribery plea of former congressman Randy "Duke" Cunningham (R-Calif.) have prompted calls for a restructuring of lobbying rules and congressional practices that make lobbying easier.
A prime target for changes are the closed-door negotiations known as conference committees, where members of the House and Senate hash out their differences over competing versions of legislation. House and Senate Democrats last week proposed that all such conference committees meet in the open and that any changes be made by a vote of all conferees.
"It happens in the dead of night when lobbyists get a [Republican lawmaker] in the corner and say, 'We've got to have this,' " said Rep. Fortney "Pete" Stark (Calif.), the Democrats' point man on Medicare issues. "It's a pattern that just goes on and on, and at some point the public's going to rise up."
Grassley disputed the CBO's interpretation of the change as "ridiculous," dismissing what appears to be a major insurance industry victory as merely a mistake in CBO calculations, not a substantive policy change. He said he accepted the policy change because he "didn't see a big difference from the Senate position and the conference position."
But other lobbyists and aides said too much important work is being done in these closed-door conclaves. That is especially true with the budget-cutting bill containing the change in the Medicare reimbursement formula that is nearing final passage.
"I have worked many [budget] bills, and this was the most closed that I've ever seen," said one prominent Republican health care lobbyist, who spoke on the condition of anonymity for fear of jeopardizing his access to Congress.
Another health care lobbyist, not involved with the issue, said the result was a major victory for health insurers: "That's a $22 billion difference; $22 billion is a lot of money."
If no one can say which lawmakers made the change, there is no doubt who instigated it. Last month, as House and Senate negotiators sat down to finalize the budget-cutting bill, the insurance industry moved to thwart the Senate's "risk adjustment" provision.
"It is our understanding that CBO is scoring significant savings from this new adjustment," officials from America's Health Insurance Plans (AHIP) wrote in urgent talking points sent to Capitol Hill. "The savings . . . are best viewed as a new and unanticipated payment reduction."
Since managed-care companies first began working through Medicare in the 1990s, the government has recognized an issue in the way the companies are paid for their participation. Private insurers attract healthier seniors than the traditional government-run Medicare system, so their payment rates -- based on the elderly population as a whole -- exceed the actual cost of treatment.
In 2003, the government began lowering payments to Medicare HMOs to account for their healthier population of beneficiaries. But to keep those HMOs from fleeing the system, the Bush administration added a "hold harmless" payment that negated that cut.
The White House intended to phase out that payment through 2010, a plan written into law by the version of the budget-cutting bill that passed the Senate in November. But to secure those savings, the Senate also required yearly audits to account for "coding creep" or "upcoding" that health policy experts say physicians and hospitals working for the HMOs have used that, wittingly or unwittingly, make their patients appear sicker than they are.
The insurance industry lobby has denied such a problem exists, saying that the huge savings that CBO and other health care analysts have projected would never materialize. Even so, the industry fought the changes tooth and nail, said health care aides in the House and Senate.
Karen Ignani, chief executive of AHIP, said the industry would have liked the yearly audit provision to be removed. Instead, it got what the CBO sees as a strict time limit. According to the final bill language, the results of a risk adjustment analysis are to be "incorporated into the risk scores only for 2008, 2009 and 2010."
The original Senate measure was supposed to reduce payments to Medicare HMOs by $2.9 billion in 2010, $3.3 billion in 2012 and $4.5 billion in 2015. Now, CBO scorekeepers think savings will peak at $2.9 billion in 2010. By 2012, the government will be paying the HMOs $100 million more than now scheduled, and $900 million more by 2014.
Republican aides involved in the change dismiss its significance, saying the CBO is reading too much into it. The Bush administration had planned to phase out "hold harmless" payments through 2010, and negotiators wanted to make the audit adjustments coincide with that time frame, the aides said.
Grassley agreed: "If CBO continues to say there needs to be a legislative requirement to conduct the analyses past 2010, then I look forward to passing legislation continuing the reports and achieving even bigger budget savings."
Posted by politicalstuff at 1:01 AM
Campaign Finance Law May Have A Loophole
Some Issue Ads Could Be Exempt, Justices Say
By Charles Lane
Washington Post Staff Writer
The Supreme Court issued a unanimous opinion yesterday that suggests some political advertisers may eventually be entitled to an exemption from regulations imposed by the 2002 Bipartisan Campaign Reform Act.
In an unsigned opinion issued six days after the justices heard oral arguments in the case, the court threw out a 2004 federal court ruling that had barred all challenges to a key provision of the law by corporate or union advertisers.
The justices said that the decision by a three-judge panel of the U.S. District Court in Washington was a misinterpretation of the Supreme Court's 2003 decision upholding the law, which is also known as the McCain-Feingold law, named after its two Senate sponsors, John McCain (R-Ariz.) and Russell Feingold (D-Wis.).
The court ordered the three-judge panel to redo the case and say specifically which kinds of corporate-paid ads may qualify for an exemption.
Yesterday's ruling leaves the law unchanged through the 2006 election cycle. But it creates the real possibility that the courts could later devise a loophole for many corporate or union advertisements. The challengers get a second try in the courts now; if that produces a broad definition of exempt advertising, then the McCain-Feingold provision could be significantly undercut, election law analysts said.
The decision also avoided a potentially sticky situation in which the court, without the departing Justice Sandra Day O'Connor, would have tied 4 to 4 on the merits of the case. Although the justices' votes in the conference after last week's oral arguments are not known, their past opinions on campaign finance, plus the comments during argument of the new chief justice, John G. Roberts Jr., suggested that such an even split was likely.
In that event, the lower court's ruling would have been affirmed -- but without creating a binding precedent. Or, the Supreme Court would have had to rehear the matter -- with the vote of only one justice -- O'Connor's likely replacement, Samuel A. Alito Jr. -- still in play.
"This is a delaying tactic by the Supreme Court," said Richard L. Hasen, a professor of election law at Loyola University in Los Angeles. "However, with the Supreme Court changing and the realistic potential that the new justices will be more sympathetic" to critics of campaign finance regulation, yesterday's decision "could be the opening salvo in a battle to scale back the regulation of campaign finance."
At issue in the case, Wisconsin Right to Life Inc. v. Federal Election Commission , No. 04-1581, was the claim by a Wisconsin antiabortion group that ads it wanted to broadcast in the state during the 2004 election were not covered by McCain-Feingold. The ads would have urged the public to tell Feingold, who was up for reelection, not to support a filibuster of President Bush's judicial nominees.
The law requires that corporations and labor unions not use their general funds to buy "electioneering communications" that run in the days just before an election. Instead, they must buy the messages with money raised according to federal contribution limits and disclosure requirements.
As defined by the law, an "electioneering communication" includes any ad that mentions the name of a candidate. This definition, which was meant to do away with unregulated "sham" issue ads said to be influencing too many races, was upheld by the Supreme Court in 2003.
But some corporations, including ideologically motivated groups such as Wisconsin Right to Life, say that the definition violates their First Amendment right to broadcast non-election-related grass-roots lobbying ads such as their proposed messages about Feingold, and that the content of political ads must be considered case by case. This position was backed by the AFL-CIO and the American Civil Liberties Union.
The three-judge panel dismissed Wisconsin Right to Life's lawsuit, saying it was foreclosed by the Supreme Court's 2003 ruling upholding McCain-Feingold. But in yesterday's opinion, read by Roberts, the court said that ruling "did not purport to resolve future as-applied challenges" -- the legal term for case-by-case challenges.
Separately yesterday, the court steered clear of another dispute over campaign finance rules for state judicial elections. Without comment or public dissent, the justices declined to hear an appeal by the chairperson of the Minnesota Board on Judicial Standards, who was asking them to uphold ethics rules banning personal fundraising or partisan activity by judicial candidates. Instead, the justices let stand a federal appeals court ruling that struck down the rules as a violation of free speech.
The case was Dimick v. Republican Party of Minnesota , No. 05-566.
And in the latest sign that its move in favor of states' rights may have stalled, the court ruled 5 to 4 that state agencies do not have sovereign immunity from efforts by federal bankruptcy trustees to recover debtors' assets that have been transferred to the agencies.
In a series of recent 5 to 4 rulings, the court's conservative majority had insulated the states from lawsuits for monetary damages under various federal laws. But yesterday, O'Connor joined the court's four liberal justices in supporting federal authority.
The case was Central Virginia Community College v. Katz , No. 04-885.
Posted by politicalstuff at 12:56 AM
White House Got Early Warning on Katrina
By Joby Warrick
Washington Post Staff Writer
In the 48 hours before Hurricane Katrina hit, the White House received detailed warnings about the storm's likely impact, including eerily prescient predictions of breached levees, massive flooding, and major losses of life and property, documents show.
A 41-page assessment by the Department of Homeland Security's National Infrastructure Simulation and Analysis Center (NISAC), was delivered by e-mail to the White House's "situation room," the nerve center where crises are handled, at 1:47 a.m. on Aug. 29, the day the storm hit, according to an e-mail cover sheet accompanying the document.
The NISAC paper warned that a storm of Katrina's size would "likely lead to severe flooding and/or levee breaching" and specifically noted the potential for levee failures along Lake Pontchartrain. It predicted economic losses in the tens of billions of dollars, including damage to public utilities and industry that would take years to fully repair. Initial response and rescue operations would be hampered by disruption of telecommunications networks and the loss of power to fire, police and emergency workers, it said.
In a second document, also obtained by The Washington Post, a computer slide presentation by the Federal Emergency Management Agency, prepared for a 9 a.m. meeting on Aug. 27, two days before Katrina made landfall, compared Katrina's likely impact to that of "Hurricane Pam," a fictional Category 3 storm used in a series of FEMA disaster-preparedness exercises simulating the effects of a major hurricane striking New Orleans. But Katrina, the report warned, could be worse.
The hurricane's Category 4 storm surge "could greatly overtop levees and protective systems" and destroy nearly 90 percent of city structures, the FEMA report said. It further predicted "incredible search and rescue needs (60,000-plus)" and the displacement of more than a million residents.
The NISAC analysis accurately predicted the collapse of floodwalls along New Orleans's Lake Pontchartrain shoreline, an event that the report described as "the greatest concern." The breach of two canal floodwalls near the lake was the key failure that left much of central New Orleans underwater and accounted for the bulk of Louisiana's 1,100 Katrina-related deaths.
The documents shed new light on the extent on the administration's foreknowledge about Katrina's potential for unleashing epic destruction on New Orleans and other Gulf Coast cities and towns. President Bush, in a televised interview three days after Katrina hit, suggested that the scale of the flooding in New Orleans was unexpected. "I don't think anybody anticipated the breach of the levees. They did anticipate a serious storm," Bush said in a Sept. 1 interview on ABC's "Good Morning America."
The reports echo warnings given around the same time by Max Mayfield, head of the National Hurricane Center, who began sounding the alarm when forecasters first placed Katrina on a collision with the Gulf Coast on the evening of Aug. 26. But the FEMA and NISAC reports provided much more detail and covered a wider range of possible consequences, from damaged ports and oil terminals to spikes in energy prices.
The White House declined to comment yesterday on the specifics of the reports but noted that the president has repeatedly acknowledged his displeasure with preparations for Katrina. "No one was pleased with the response by the government -- federal, state or local," spokesman Trent Duffy said. "We have already taken steps to be better prepared for future hurricanes, as you saw in the response to the hurricanes that followed Katrina."
The disclosure of the reports comes as the Senate Homeland Security and Governmental Affairs Committee prepares to convene new hearings today into the federal government's performance during Katrina. Sen. Joseph I. Lieberman (Conn.), the committee's ranking Democrat, responded to the documents in a statement saying the administration's failure to fully heed the warnings of its analysts "compounded the tragedy."
"Two to three days before Katrina hit the Gulf Coast, it became clear that it would be the 'Big One' everyone has been talking about for years," Lieberman said.
Posted by politicalstuff at 12:49 AM
Photos of Bush With Abramoff Are Withheld
White House Calls Pictures Irrelevant to Ethics Inquiry
By Jim VandeHei and Susan Schmidt
Washington Post Staff Writers
Several White House officials have been briefed about pictures of President Bush and Republican lobbyist Jack Abramoff taken since 2001 but will not release them on grounds that they are not relevant to the ongoing money-for-favors investigation, aides said yesterday.
"Trying to say there's more to it than the president taking a picture in a photo line is just absurd," White House spokesman Scott McClellan told reporters. Bush, he said, does not recall meeting Abramoff and did not do any favors for the disgraced lobbyist.
Abramoff, who recently pleaded guilty in the growing bribery and corruption scandal, was with Bush about a dozen times when pictures were taken by the official White House photographer or other participants over the past five years, according to a source familiar with Abramoff's legal situation. Abramoff, this source said, displayed at least five of them on his office desk and has told people the president talked about his children's names as well as personal details about their schooling during one encounter.
The source said Abramoff has more than half a dozen photos with Bush, including one of the two men shaking hands, but has no intention of releasing them. The existence of the Bush-Abramoff photos was first reported by Washingtonian magazine, which reviewed five photos but was not permitted to publish them.
No evidence has emerged thus far suggesting Bush had a close relationship with Abramoff or that he or any of his top White House aides did anything to improperly assist his clients, according to people familiar with the investigation. Several lower-level administration officials, however, have been caught up in the scandal, including the top procurement official. The federal probe is expected to zero in on Abramoff's dealing with the Interior Department as it unfolds in coming months.
But public photographs could damage Bush's efforts to insulate himself from a scandal that has scorched numerous other Republicans. A vivid image of Bush shaking hands and smiling with Abramoff would provide fuel for news coverage and commentary, even if such "grip-and-grin" shots are commonplace for most politicians.
Jennifer Palmieri, a former Clinton communications aide, said, "If TV is showing a picture of George Bush and Jack Abramoff, it immediately brings the poster boy for abuse into the Oval Office."
The photos "change the dynamic to the extent that the White House lets it change the dynamics," said Mark Corallo, a veteran GOP communications official who is advising White House senior adviser Karl Rove in the CIA leak case. To minimize possible damage, Corallo said, the White House should release all of the photos immediately, explain how the photos are part of the normal meet-and-greet with supporters and show how Bush was a victim of Abramoff's schemes.
Mary Matalin, an informal White House adviser, said the photos should not be released and that, if they are, voters are savvy enough to realize the images are not evidence of a Bush role in the scandal. A top White House aide said it would set a terrible precedent if the president were to release photos from private events.
But Democrats said that precedent is established. In 1997, congressional and public pressure forced the Clinton White House to release videotapes of Bill Clinton hosting meet-and-greet coffees with big contributors.
Abramoff was no stranger to the Bush White House. He had served as one of Bush's top fundraisers and assisted the Interior Department during the president's transition to power in 2000.
The source familiar with Abramoff's situation said the lobbyist has not provided investigators any evidence the president was aware of any issues or interested in helping him. The source said most of the assistance to Abramoff came from Interior officials and elsewhere.
Abramoff's lobbying team did discuss contacting an official in the White House office of intergovernmental affairs in 2002 when trying to get Congress to approve funds for a tribal school, e-mails obtained by The Washington Post show. But it is not clear if the official was helpful.
Former chief procurement officer David H. Safavian was charged in September with lying to federal officials about his dealings with the lobbyist in connection with Abramoff's efforts to gain access to property administered by the General Services Administration. A second high-ranking administration official, former deputy Interior secretary J. Steven Griles, has also come under scrutiny in the probe. Griles, who was offered a job by Abramoff, has said he did not try to intercede on behalf of Abramoff's clients, but e-mails released by a Senate committee show numerous contacts between Griles and Abramoff or his associates.
In May 2001, several of Abramoff's tribal clients joined state legislators at a White House event arranged by Grover Norquist, an anti-tax lobbyist and friend of Abramoff. In an interview, Norquist said he does not recall Abramoff being at the White House session.
Several former Abramoff associates said the lobbyist boasted and apparently overstated his access to powerful politicians, including Bush. When Susan Ralston, Abramoff's former secretary, was hired by Rove, the lobbyist told associates he got her the job. Other officials said it was Ralph Reed, a former lobbyist who is running for governor in Georgia and has been tainted by the scandal, who helped her make the move.
Posted by politicalstuff at 12:47 AM
Study: Army stretched to breaking point
WASHINGTON (AP) — Stretched by frequent troop rotations to Iraq and Afghanistan, the Army has become a "thin green line" that could snap unless relief comes soon, according to a study for the Pentagon.
Andrew Krepinevich, a retired Army officer who wrote the report under a Pentagon contract, concluded that the Army cannot sustain the pace of troop deployments to Iraq long enough to break the back of the insurgency. He also suggested that the Pentagon's decision, announced in December, to begin reducing the force in Iraq this year was driven in part by a realization that the Army was overextended.
As evidence, Krepinevich points to the Army's 2005 recruiting slump — missing its recruiting goal for the first time since 1999 — and its decision to offer much bigger enlistment bonuses and other incentives.
"You really begin to wonder just how much stress and strain there is on the Army, how much longer it can continue," he said in an interview. He added that the Army is still a highly effective fighting force and is implementing a plan that will expand the number of combat brigades available for rotations to Iraq and Afghanistan.
The 136-page report represents a more sobering picture of the Army's condition than military officials offer in public. While not released publicly, a copy of the report was provided in response to an Associated Press inquiry.
Illustrating his level of concern about strain on the Army, Krepinevich titled one of his report's chapters, "The Thin Green Line."
He wrote that the Army is "in a race against time" to adjust to the demands of war "or risk 'breaking' the force in the form of a catastrophic decline" in recruitment and re-enlistment.
Col. Lewis Boone, spokesman for Army Forces Command, which is responsible for providing troops to war commanders, said it would be "a very extreme characterization" to call the Army broken. He said his organization has been able to fulfill every request for troops that it has received from field commanders.
The Krepinevich assessment is the latest in the debate over whether the wars in Iraq and Afghanistan have worn out the Army, how the strains can be eased and whether the U.S. military is too burdened to defeat other threats.
Rep. John Murtha, the Pennsylvania Democrat and Vietnam veteran, created a political storm last fall when he called for an early exit from Iraq, arguing that the Army was "broken, worn out" and fueling the insurgency by its mere presence. Administration officials have hotly contested that view.
George Joulwan, a retired four-star Army general and former NATO commander, agrees the Army is stretched thin.
"Whether they're broken or not, I think I would say if we don't change the way we're doing business, they're in danger of being fractured and broken, and I would agree with that," Joulwan told CNN last month.
Krepinevich did not conclude that U.S. forces should quit Iraq now, but said it may be possible to reduce troop levels below 100,000 by the end of the year. There now are about 136,000, Pentagon officials said Tuesday.
For an Army of about 500,000 soldiers — not counting the thousands of National Guard and Reserve soldiers now on active duty — the commitment of 100,000 or so to Iraq might not seem an excessive burden. But because the war has lasted longer than expected, the Army has had to regularly rotate fresh units in while maintaining its normal training efforts and reorganizing the force from top to bottom.
Krepinevich's analysis, while consistent with the conclusions of some outside the Bush administration, is in stark contrast with the public statements of Defense Secretary Donald Rumsfeld and senior Army officials.
Army Secretary Francis Harvey, for example, opened a Pentagon news conference last week by denying the Army was in trouble. "Today's Army is the most capable, best-trained, best-equipped and most experienced force our nation has fielded in well over a decade," he said, adding that recruiting has picked up.
Rumsfeld has argued that the experience of fighting in Iraq and Afghanistan has made the Army stronger, not weaker.
"The Army is probably as strong and capable as it ever has been in the history of this country," he said in an appearance at the Paul H. Nitze School of Advanced International Studies in Washington on Dec. 5. "They are more experienced, more capable, better equipped than ever before."
Krepinevich said in the interview that he understands why Pentagon officials do not state publicly that they are being forced to reduce troop levels in Iraq because of stress on the Army. "That gives too much encouragement to the enemy," he said, even if a number of signs, such as a recruiting slump, point in that direction.
Krepinevich is executive director of the Center for Strategic and Budgetary Assessments, a non-profit policy research institute.
He said he concluded that even Army leaders are not sure how much longer they can keep up the unusually high pace of combat tours in Iraq before they trigger an institutional crisis. Some major Army divisions are serving their second yearlong tours in Iraq, and some smaller units have served three times.
Michael O'Hanlon, a military expert at the private Brookings Institution, said in a recent interview that "it's a judgment call" whether the risk of breaking the Army is great enough to warrant expanding its size.
"I say yes. But it's a judgment call, because so far the Army isn't broken," O'Hanlon said.
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Posted by politicalstuff at 12:46 AM
Democrat blasts Bush before State of the Union
By Donna Smith
WASHINGTON (Reuters) - Senate Democratic Leader Harry Reid on Tuesday urged President George W. Bush to "swagger" less and show more honesty and humility in his annual State of the Union speech to the nation next week.
In a speech at a liberal think tank, Reid gave a scathing assessment of the state of the nation under Bush and the Republican-controlled Congress.
"Republicans run good campaigns, but when it comes to actually governing and protecting Americans, they have a record of incompetence," Reid told an audience at the Center for American Progress.
Reid's speech was part of an effort to lay the groundwork for the November congressional election in which Democrats hope to win control of Congress or at least shrink the Republican majority.
Reid took aim at the president's national security record, saying Bush "must unite the nation behind our most important goal -- keeping our people and way of life safe. We need to hear honesty and humility from the commander in chief, not swagger from the campaigner-in-chief."
Bush is to deliver his State of the Union address before Congress on January 31 and lay out his priorities for the year. He is expected to talk about national security and suggest expansion of tax-free "Health Savings Accounts" to help people pay medical expenses.
Reid accused Bush of making promises in past State of the Union speeches and doing the opposite. In 2003, Reid said, Bush promised not to pass the nation's current bills on to the next generation.
Noting that the government will breach the $8.184 trillion debt limit next month, Reid accused Bush of "bankrupting our country and placing an enormous tax on our children and grandchildren, simply so he can hand out tax breaks to special interests and the wealthy."
The White House has asked Congress to raise the credit limit by mid-February, saying the Treasury would have to take extraordinary measures to keep paying bills for everything from Social Security and national defense. Since 2002, Congress has raised the debt ceiling by $2.2 trillion.
Reid also urged Bush to offer a plan to fix the new Medicare prescription drug program for the elderly. Since the plan was launched on January 1, many poor and elderly people have been snagged by problems that have made it difficult for them to get their prescription costs covered.
About half of the states have stepped in to pay the costs of people who have run into problems. The drug plan relies on private insurers, pharmacies and healthcare companies to provide coverage to Medicare's 42 million beneficiaries.
Posted by politicalstuff at 12:45 AM
White House accused of foot-dragging in Katrina probe
By Donna Smith
WASHINGTON (Reuters) - Sen. Joseph Lieberman, the top Democrat on the Senate panel investigating the government's botched response to Hurricane Katrina, on Tuesday accused administration officials of failing to cooperate and trying to run out the clock on the congressional probe.
"The problems begin at the White House, where there has been a near total lack of cooperation that has made it impossible, in my opinion, for us to do the thorough investigation we have a responsibility to do," Lieberman said in a hearing held by the Senate Homeland Security Committee.
The Connecticut Democrat said the administration has delivered few of the documents requested by the committee and hindered it's ability to obtain information from agencies involved in preparing and responding to the hurricane.
"There's been no assertion of executive privilege; just a refusal to answer," Lieberman said.
"My staff believes that (the Department of Homeland Security) has engaged in a conscious strategy of slow walking our investigation in the hope that we would run out of time to follow the investigation's natural progression to where it leads."
The committee has held several hearings on Katrina and chairman Susan Collins, a Maine Republican, said it is entering the final phase of the probe. The next few hearings will focus on the "most troubling aspects" of the response to the hurricane, which devastated Gulf coast states and flooded New Orleans.
White House spokesman Scott McClellan insisted the administration was cooperating with the probe. "There are thousands of documents that have been provided to the committee, there are numerous administration officials who have gone before the committee and testified," he said.
But Lieberman said key documents were missing that could explain why a Department of Homeland Security warning about the potential dangers of the storm went unheeded.
A Federal Emergency Management Agency document dated August 27 -- two days before the storm hit -- warned of the potential for heavy damage, widespread power outages and possible flooding in New Orleans.
Lieberman said the White House received the report several hours before the storm made landfall.
"What happened to that report?" he asked. "Why was the President left so uninformed that he said four days later: 'I don't think anyone anticipated the breach of the levees.'"
Posted by politicalstuff at 12:43 AM
US "outsourced" torture: investigator
By Jon Boyle
STRASBOURG, France (Reuters) - The United States flew detainees to countries where they would be tortured and European governments probably knew about it, the head of a European human rights investigation said on Tuesday.
But Swiss senator Dick Marty said in a preliminary report for the Council of Europe human rights watchdog that he had found no irrefutable evidence to confirm allegations that the CIA operated secret detention centers in Europe.
His report kept pressure on the U.S. Central Intelligence Agency over the charges that it flew prisoners through European airports to jails in third countries, but Washington denied any wrongdoing and critics said the report contained nothing new.
"There is a great deal of coherent, convergent evidence pointing to the existence of a system of 'relocation' or 'outsourcing of torture'," Marty told the 46-nation Council, based in the eastern French city of Strasbourg.
"It is highly unlikely that European governments, or at least their intelligence services, were unaware."
At the State Department in Washington, spokesman Sean McCormack dismissed the report as "same old reports wrapped up in some new rhetoric. There's nothing new here."
The September 11 attacks on U.S. landmarks sparked a U.S. global war on terrorism against al Qaeda and led to the invasion of Iraq. Public opinion has hardened in Europe since deadly bomb attacks in London last July and in Madrid in March, 2004.
But the allegations about the CIA, first made by newspapers and human rights groups late last year, have put pressure on the United States and European governments to explain their actions and those of their secret services.
Marty said it had been proved that "individuals have been abducted, deprived of their liberty and transported to different destinations in Europe, to be handed over to countries in which they have suffered degrading treatment and torture."
He estimated more than 100 people had been subject to the process known as "rendition."
NO "SMOKING GUN" ON SECRET JAILS
Romania, Poland, Ukraine, Kosovo, Macedonia and Bulgaria have faced accusations that the CIA used detention centers on their soil.
Marty acknowledged there was no firm evidence of detention centers in Europe similar to the one at Guantanamo Bay in Cuba, where hundreds of people judged by the U.S. military to be illegal combatants are held without charge.
But he said U.S. media had faced government pressure not to publish further accusations, and he expected newly received European satellite and flight data to boost his investigation.
The United States has not denied or confirmed the existence of secret detention centers.
U.S. Homeland Security Secretary Michael Chertoff told reporters in Paris he had not seen Marty's report but "the government acts in accordance with the law and with respect to the sovereignty of host countries in which it operates."
"The authorities are free to investigate what they want to investigate but we should not allow ourselves to be distracted from the need to identify, prevent and protect against terrorist acts of violence," he added.
The State Department's McCormack insisted the United States "does not torture," respects the sovereignty of European allies and does not transfer suspects to countries where there is reasonable expectation they might be subjected to torture without first seeking assurances they will not be tortured.
There may be differences between Europe and America on these issues, but "we are fighting the same fight, we share the same core values. And what we need is discussion and dialogue about how to deal with the issues that confront us," McCormack told a news briefing.
He said if Europeans had more questions on this issue, the United States would try to answer them.
Denis MacShane, a British member of parliament and former minister for Europe, told reporters Marty's report "has more holes than a Swiss cheese." A British government spokesman said there seemed to be no new facts.
European Security Commissioner Franco Frattini urged EU members to cooperate fully with Marty's probe but said it was too early to draw conclusions.
Poland said the report left no "basis for thinking such camps or prisons existed on Polish territory."
(Additional reporting by Ingrid Melander in Brussels, Kate Baldwin in London and Paul Carrel in Paris)
Posted by politicalstuff at 12:38 AM
Tuesday, January 24, 2006
Law Firm's Defamation Claim Found to Trump Critics' Internet Anonymity
Shannon P. Duffy, The Legal Intelligencer
Ruling on one of the most important First Amendment issues of the day, a Philadelphia judge has ruled that a valid defamation claim trumps any right to speak anonymously on the Internet.
In his 19-page opinion in Klehr Harrison Harvey Branzburg & Ellers v. JPA Development Inc., Common Pleas Judge Albert W. Sheppard Jr. ordered the operator of two now-defunct Web sites to turn over the identities of the anonymous authors of comments on the sites that allegedly defamed a Philadelphia law firm.
Sheppard chose not to apply tests developed by New Jersey and Delaware courts, relying instead on Pennsylvania's existing discovery rules for guidance.
In the suit, the Klehr Harrison firm complains that its reputation was severely disparaged by comments on the two sites that falsely accused its lawyers of being "thieves," committing "fraud" and "lying" to a judge.
According to court papers, the Internet sites were operated by Gerasimos "Jerry" Pantelidis and focused on discussions of a real estate dispute involving the Barclay Hotel in which Pantelidis was pitted against a mortgage company.
Pantelidis had purchased the Barclay in a bankruptcy court sale, and a mortgage company owned by Michael Karp had loaned Pantelidis about $8 million.
A dispute later arose when Karp's company threatened to foreclose on the mortgage due to its fears that Pantelidis was not making sufficient progress in his renovation efforts.
Pantelidis, in a suit against Karp, claims he was satisfying all of the mortgage agreement's requirements, but because of the foreclosure threat, he was forced to sell the hotel at a wholesale price to developer Allan Domb.
The litigation between Pantelidis and Karp is ongoing, and a nonjury trial that began last year is set to resume Jan. 30.
But a new lawsuit began when Klehr Harrison, which represents one of Karp's companies, claimed that Pantelidis was defaming the firm on two Internet sites.
Sheppard has ruled that numerous statements on the Internet sites are "defamation per se" because they amount to accusations of criminal conduct.
One of the sites, according to court papers, included a link to a "guest book" that contained numerous anonymous comments, many of which sharply criticized Klehr Harrison.
Pantelidis has testified that he was the administrator of the guest book site and controlled its contents.
But when lawyers for Klehr Harrison demanded to know the identities of the anonymous commentators, lawyers for Pantelidis refused to turn them over, arguing that disclosure of their identities would violate their constitutional right to engage in anonymous speech.
Sheppard sided with Klehr Harrison and ordered that the identities of all comment authors be disclosed.
Pantelidis appealed that ruling, and Sheppard has now handed down an opinion explaining his reasoning.
Sheppard found that courts have adopted a variety of approaches in tackling the issue of anonymous speech on the Internet.
In Dendrite International v. Doe, the New Jersey Superior Court held in 2001 that there is a "well established First Amendment right to speak anonymously."
In Dendrite, a public corporation brought a defamation action against numerous John Doe defendants for messages posted on an Internet bulletin board that accused the company and its president of altering accounting methods to overstate revenue.
The company sought limited discovery for the purposes of ascertaining all of the John Does' identities, but the New Jersey Superior Court denied the request and announced a three-prong test.
Under the test, a defamation plaintiff seeking the identities of anonymous Internet subscribers must show it has taken efforts to notify the anonymous posters that they are the subject of an application for an order of disclosure; identify to the court statements made by the posters; and establish a prima facie cause of action for defamation against the posters.
If the test is met, the Dendrite court said, the trial court must "balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to proceed."
The Dendrite standard was adopted in a modified form by the Delaware Supreme Court in its 2005 decision in Doe v. Cahill in which the plaintiff, an elected official, complained about anonymous postings on an Internet blog that impugned his leadership abilities.
Expressing more concern for the rights of anonymous Internet speakers, the Cahill court warned that "there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics."
The Cahill court retained the notification provision of the Dendrite test, as well as the provision that requires the plaintiff to set forth a prima facie cause of action against the anonymous poster.
But the court made the test significantly more difficult for plaintiffs by holding that the identities of anonymous defendants may not be disclosed unless the plaintiff can "support his defamation claim with facts sufficient to defeat a summary judgment motion."
Now Sheppard has decided to apply neither the Dendrite nor the Cahill test, finding instead that Pennsylvania's existing discovery rules provide adequate guidance.
Sheppard took his cue from a law review article by Professor Michael S. Vogel of the University of Illinois College of Law titled: "Unmasking 'John Doe' Defendants: The Case Against Excessive Hand-Wringing over Legal Standards" published in 2004 in the Oregon Law Review.
In the article, Vogel complained that courts were rushing to apply new standards to discovery issues related to anonymous posters to the Internet.
"The threat to core First Amendment free speech rights from too readily identifying anonymous speakers is real, and should be taken seriously by the courts. At the same time, however, the new standards offer little real protection for anonymous speech beyond what the courts can provide under existing rules," Vogel wrote.
Sheppard agreed, saying, "the implementation of new standards for cases involving plaintiff's efforts to learn the identities of anonymous Internet posters will likely do more harm than good."
Instead, Sheppard said, "this court believes that a balancing of John Does' First Amendment rights against the plaintiff's rights to the information sought is built into our commonwealth's existing civil procedure."
As a result, Sheppard decided that the defense request for a protective order is governed by Pennsylvania Rule of Evidence 4011, which prohibits discovery that is sought "in bad faith" or would "cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party."
Sheppard found there was "no evidence that [the] plaintiff has sought the identities of the anonymous posters (or poster) in bad faith."
Turning to the question of whether the discovery would cause the defendants unreasonable burden, Sheppard found that he was forced to consider the anonymous posters' First Amendment rights.
Sheppard found that courts "have repeatedly held that the right to speak anonymously is subsumed within the constitutional right to speak freely."
Nonetheless, Sheppard found that free speech "is not absolute," and that "defamatory and libelous speech enjoys no constitutional protection."
Sheppard concluded that since many of the anonymous statements in the "guest book" amounted to defamation per se, they are not entitled to First Amendment protection.
"While the posters are undeniably entitled to First Amendment rights, the defamatory per se statements are not entitled to First Amendment protection," Sheppard wrote.
Posted by politicalstuff at 3:21 PM