A Veteran's Iraq Message Upsets Army Recruiters

The New York Times
A Veteran's Iraq Message Upsets Army Recruiters
By MONICA DAVEY

DULUTH, Minn., Dec. 21 - As those thinking of becoming soldiers arrive on the slushy doorstep of the Army recruiting station here, they cannot miss the message posted in bold black letters on the storefront right next door.

"Remember the Fallen Heroes," the sign reads, and then it ticks off numbers - the number of American troops killed in Iraq, the number wounded, the number of days gone by since this war began.

The sign, put up by a former soldier, has stirred intense, though always polite, debate in this city along the edge of Lake Superior in northeastern Minnesota. In a way, many of the nation's vast and complicated arguments about war are playing out on a single block here, around a simple piece of wood.

The seven military recruiters here, six of whom have themselves served in Iraq, want the sign taken away. "It's disheartening," Staff Sgt. Gary J. Capan, the station's commander, said. "Everyone knows that people are dying in Iraq, but to walk past this on the way to work every day is too much."

But Scott Cameron, a local man who was wounded in the Vietnam War, says his sign should remain. Mr. Cameron volunteers for a candidate for governor of Minnesota whose campaign opened a storefront office next door to the recruiting station, and he has permission to post the message he describes as "not antiwar, but pro-veteran."

"We're still taking casualties from Vietnam, years later," Mr. Cameron said recently. "Is the same thing going to happen again?" Despite the location, he insists that his purpose is not to prevent new recruits from signing up for the Army, but to honor those who made sacrifices. Still, Mr. Cameron also says, "Before they join the military, people better know what they're getting into."

Clashes like this are emerging elsewhere, too, even as the Army wrestles with the challenge of recruiting during a war, a struggle that left it 8 percent shy of its goal to bring in 80,000 new active-duty soldiers in the most recent recruiting year.

Some of the conflicts are part of a growing number of planned "counterrecruiting" efforts by antiwar groups, parents and individuals. They have fought to prevent recruiters from getting access to students' contact information from schools or have set up their own booths near recruiters' at job fairs to tell potential recruits why they should not sign up.

At George Mason University in Virginia, an Air Force veteran was arrested this fall while standing near a recruitment table on campus, wearing a sign that said "recruiters lie." At Kent State University in Ohio, a former marine climbed a recruiter's rock-climbing display in October and unfurled a peace banner.

But some of the debates, like the one here, have played out far more quietly, seeming less staged, more ambiguous and more like the natural edges of the country's debate over war seeping out on their own.

Early this month, State Senator Steve Kelley, a candidate for governor of Minnesota from the Democratic-Farmer-Labor Party (the Democratic party in Minnesota, whose name is a vestige of its liberal heritage), held a grand opening for his new campaign office along Superior Street, a main thoroughfare in downtown Duluth. When Mr. Cameron, a Kelley volunteer, asked whether he could put his sign up in the window of the office, alongside the collage of campaign posters, Mr. Kelley agreed.

Mr. Cameron, who was shot in Vietnam in 1969 and says he has since undergone 46 operations to repair the damage, said he felt compelled to post his message to remind people of the soldiers now lost. Decades ago, he said, he did not speak his mind about Vietnam because he feared he might harm support for the troops. He is not, he said, "going to be silent again."

Although Mr. Cameron, 55, acknowledged that he opposed the war in Iraq, he insisted that his sign was not about that at all. Its intent, he said, is simple and apolitical: to remember the troops, to care for veterans, to recognize what is being lost each day. "This is for the veterans," he said. "And the way I understand it, this is what we're over there fighting for in the first place - for my right to put a sign right there."

A few days after the opening, the office drew a visit from next door. Sergeant Capan, 31, said his recruiters were upset and wanted the sign removed. One woman who had just returned from duty in Iraq, he said, found the sign especially disconcerting and impersonal. "It was upsetting to veterans who don't look at their friends and colleagues killed as numbers on a list," he said.

In truth, neither side agrees on what precisely the sign is saying. Each sees its message through its own prism.

Sergeant Capan said he wondered why, if Mr. Cameron was truly trying to send a "pro-veterans" message, he had not instead posted a sign listing how many soldiers had returned home from Iraq safely and placed it somewhere else - an Interstate highway, say, or the Capitol. And Mr. Cameron said he suspected that Sergeant Capan's true fear was not so much the well-being of his recruiters as how the sign might deter potential recruits.

Sergeant Capan dismissed that notion. "Overall recruiting is going well, and this sign has not detracted," he said, adding, "Everybody who's joining the Army knows that there are deaths at war."

Elsewhere, it is nearly impossible to gauge how more concerted counterrecruiting efforts have affected military recruiting, if at all, said S. Douglas Smith, a spokesman for Army Recruiting Command at Fort Knox, Ky.

"There's been a good bit of activity this year," Mr. Smith said of the counterrecruiting efforts. "But in terms of impact, it's very hard to say." In this fiscal year, the Army hopes to recruit more than 105,000 active-duty and reserve soldiers by next fall. As of the end of November, Mr. Smith said, the Army was slightly ahead of its year-to-date goals.

Back in Duluth, Mr. Kelley ultimately decided to leave Mr. Cameron's sign alone, despite the Army's request that it be removed.

Mr. Kelley, who describes the centerpiece of his campaign for governor as education, found himself in the awkward position of being thrust into the debate over war, an issue most candidates for state and local offices rarely have to confront.

"In the past, I have taken positions in support of free speech," he said the other day, explaining his decision to let the sign remain. "And I thought if I'm going to try to be consistent about free speech, how could I tell Scott to take the sign down?"

Since news of the sign was reported in local newspapers, response has been mixed. A woman from Missouri had two pizzas delivered to reward Sergeant Capan's recruiters, while a veteran wrote to say that the sergeant needed "psychological screening" for even suggesting the removal of a disabled veteran's tribute to "his fallen brothers and sisters."

Mr. Cameron, meanwhile, says he has been asked to make copies of his sign (which he had made for $100 at a local sign company) and is thinking of marketing them.

For now, the neighbors on Superior Street have agreed to disagree. An offering of cookies by Mr. Cameron was not accepted, Sergeant Capan said, but Sergeant Capan insisted that relations on the street remained polite nonetheless.

"We're going to move on," he said. "We're soldiers."

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Powell Speaks Out on Domestic Spy Program

The New York Times
Powell Speaks Out on Domestic Spy Program
By STEVEN R. WEISMAN

WASHINGTON, Dec. 25 - Former Secretary of State Colin L. Powell said on Sunday that it would not have been "that hard" for President Bush to obtain warrants for eavesdropping on domestic telephone and Internet activity, but that he saw "nothing wrong" with the decision not to do so.

"My own judgment is that it didn't seem to me, anyway, that it would have been that hard to go get the warrants," Mr. Powell said. "And even in the case of an emergency, you go and do it. The law provides for that."

But Mr. Powell added that "for reasons that the president has discussed and the attorney general has spoken to, they chose not to do it that way."

"I see absolutely nothing wrong with the president authorizing these kinds of actions," he said.

Asked if such eavesdropping should continue, Mr. Powell said, "Yes, of course it should continue."

Mr. Powell said he had not been told about the eavesdropping activity when he served as secretary of state.

He spoke on the ABC News program "This Week" about the disclosure, first reported in The New York Times, that Mr. Bush had authorized the National Security Agency to intercept communications by Americans without approval from a special foreign intelligence court.

Though Mr. Powell stopped short of criticizing Mr. Bush, his suggestion that there was "another way to handle it" was another example of his parting company on a critical issue with the president he served for four years.

This fall, Mr. Powell broke with the administration on the issue of torture, endorsing a move by Senator John McCain, Republican of Arizona, to pass a measure in Congress banning cruel, inhuman and degrading treatment of detainees by all American authorities, including intelligence personnel. The White House at first opposed the measure but later accepted it.

Since leaving office at the end of Mr. Bush's first term, Mr. Powell has been involved in several business and public service ventures, including the establishment of the Colin Powell Center for Policy Studies at City College of New York, his alma mater.

On Iraq, Mr. Powell repeated earlier statements that differed somewhat from those of Mr. Bush, saying he did not know whether he would have advocated going to war with Iraq if he had known that the country had no stockpiles of illicit weapons.

Referring to the case for going to war if there were no such weapons, Mr. Powell said he would have told the president, "You have a far more difficult case, and I'm not sure you can make the case in the absence of those stockpiles."

Mr. Powell said he expected American troop levels to continue to go down in the coming year out of necessity, because it will become difficult to sustain the current high levels and because the effort to train Iraqis should be successful.

The main worry in Iraq, he said, is the growth of semi-independent militias with allegiance to sectarian groups within the Iraqi military.

Asked if the ethnic divisions in Iraq that were reinforced by the recent elections posed a threat of civil war, Mr. Powell said, "I think it is something we all have to be worried about."

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The End of Political Humor as We Know It

huffingtonpost.com
The End of Political Humor as We Know It
Tom D'Antoni

Hear ye! Hear ye! I proclaim the end of political humor. Sorry, Al. Sorry, Harry. Wait, are there any others? Please, don’t even mention O’Rourke, he hasn’t been funny since 1971.

Forget my post here from a couple weeks ago, funny though it was.

It’s not even funny to compare Bush to a monkey anymore.
Or to Alfred E. Neuman. It’s just not funny.

I’m sitting in a coffee shop in Portland, Oregon wondering if the wi-fi is sending my emails to the NSA, or to James Dobson or Pat Robertson or any other member of the Republican al-Qaeda (remember, that’s Osama for “the base”). Because you know, where as there may be dedicated professionals at NSA who have no agenda other than to protect the American republic, you have to remember that they work for crooks who would invade their mother’s grave if it had oil under it.

Gallows humor, that’s what it is. “What’s the worst that could happen?” we asked after the Diebold referendums in 2004. You’re looking at it. And it’s not funny.

We who are about to die write jokes.

Think about how many times in the past year or so you have said the words, “You can’t write something like that, nobody would believe it.” Believe it.

We Americans torture, kill, hate, steal, lie and ignore the Constitution. How long will it be before someone else who has a lot of weapons decides to retaliate? And when they do, if the current bunch is still holding power, how much worse will it be for you and me?

Say they attack us again. Say thousands of people die again. Not only will the Republicans (and Joe Lieberman) not take responsibility for not protecting us, but may give us a sequel to the “Patriot” Act that will allow them to suspend an election or two.

Bush will point to a Congressional authorization found in some small phrase stuck in some piece of legislation in the dead of night and passed by an unsuspecting Congress. His arrogant defense of NSA spying is merely a preview.

See? I’ve stopped being funny.

Ok, how’s this? Bush, Cheney and Rove walk into a bar.

There’s no punch line.

They’re not funny.

Korea is funny. T’ings wit a “K” sound are funny.” Sorry, I was channeling The Sunshine Boys.

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TweedleDumb and TweedleDumber

(for those of you who may possibly need a translation, RMN=Richard M Nixon, and W=George W Bush)

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Church-going Republican Judges

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Silent Night

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I only look like Santa

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Freedom of Speech

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What kind of Christmas greeting is that?

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Eavesdropping

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Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers; Continues the Executive's Sapping of Power From Congress and the Courts

findlaw.com
Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts
By EDWARD LAZARUS

Not so long ago, the debate over the constitutional doctrine of separation of powers in this country was a matter of fine distinctions.

In 1989, for instance, some worried that Congress' decision to have the executive put a few members of the judicial branch on the U.S. Sentencing Commission raised a separation of powers issue. These executive-appointed judges, after all, would arguably act as legislators - in that the Commission drafts the U.S. Sentencing Guidelines, for Congress' approval.

The Supreme Court, in Mistretta v. United States, approved the arrangement despite the separation-of-powers objection. But critics still worried. Yale Law Professor Stephen Carter eloquently explained why: Although permitting a few judicial officers to accept executive appointment to a non-judicial commission might not look too ominous, the Constitution's separation of powers was the nation's primary defense against tyranny. And tyranny, Carter concluded in an oft-quoted line, does not overwhelm a nation in an instant. No, he wrote, "tyranny creeps."

Lately, though, tyranny runs like a cheetah. How quaint concerns such as those of Mistretta's critics seem after the events of the last few years.

How quaint they seem, especially, after last's week revelation that President Bush has spent the last four years authorizing and re-authorizing the warrantless wiretapping of domestically originating phone calls made by American citizens, even though Congress appears to have made such wiretapping a criminal offense when it passed the Foreign Intelligence Surveillance Act (FISA) in the 1970s.

How a Bloated Executive Has Sapped Power From Congress and The Federal Courts

Over the past four years, the executive has repeatedly tried to make sure the federal courts and the legislative branch have no oversight at all as to whom it detains, on what ground, for how long, and under what conditions -- including conditions of extreme torture such as waterboarding.

The Bush Administration took power from the courts by spuriously arguing that Guantanamo detainees had no access to the Great Writ of habeas corpus - a contention that the Supreme Court handily rejected, but that kept the issue tied up in litigation for years. It would have been more honest for the Administration to suspend habeas corpus for these prisoners, and accept the brunt of public criticism for doing so.

The Bush Administration has also tried to moot cases before courts can rule on crucial issues of detention -- allowing the supposedly dangerous American citizen Yaser Hamdi to go live in Saudi Arabia, and indicting American citizen Jose Padilla on charges very different from the "dirty bomb" allegations that supposedly justified detaining him for years.

And the Bush Administration took power from Congress by acting as if the Congressionally-ratified Geneva Convention does not apply. Meanwhile, its CIA has reportedly administered a network of secret foreign prisons -- unbeknownst to the courts and, it seems, to Congress (or much of it).

Now, once again, the President has bypassed the federal courts and Congress entirely - with the Executive refusing even to avail itself of the separate, secret FISA court convened by Congress as the only entity with the power to authorize clandestine surveillance of espionage or terrorism suspects.

Importantly, the question now before the country is not some marginal blurring of lines between the three departments of government. The question is whether the Executive department will overwhelmingly dominate the other two - and, especially, the federal courts. President Bush claims Congressional leaders, at least, knew of his warrantless wiretapping, but no court was told.

The Bush Administration has taken the position that it has inherent constitutional authority to exempt itself from all legal constraint when the President invokes his commander-in-chief authority to respond to external national security threats. Surely, this position is wrong.

The Executive's Tactics: "Paper," Conceal, Trot Out the Paper

The Administration's M.O. in all such initiatives seems to be consistent. Within the Executive Branch, it uses the Department of Justice's Office of Legal Counsel - which used to serve as a neutral arbiter on questions of Executive power - as a veritable department of justification: a place where Executive Branch ideologues concoct defenses, no matter how one-sided or incomplete, for every act the President would like to undertake. It is from OLC, for instance, that the notorious torture memos came - and now, the justification for warrantless wiretaps.

In this way, the President can always claim that he was acting within his legal authority as the Justice Department itself defined it. But as the attorneys currently staffing OLC are not inclined to see any constitutional constraint on Presidential power at all, it is absurd to rely on their supposedly drawing the boundaries of the authority within which the President can operate.

In their view, there are no such boundaries. Yet they have produced lengthy analyses to "paper" this simple, incredible view, which might have been expressed in a single naked, unpersuasive sentence.

Next, the Administration shrouds its conduct in a thick veil of secrecy so that not only us ordinary folk, but even high-ranking Congressional officials will have no idea what power the President is actually exercising. And of course, the Administration has terrified potential whistleblowers through threats of investigation and prosecution. That means two more potential groups who might have argued for, or set, boundaries are silenced: Members of Congress, and the small group of those last few conscientious persons within the Administration who still believe it ought to comply with the Constitution, and are willing to say so.

Then, when the Administration's actions finally come to light, its officials trot out whatever legal justifications its lawyers have cooked up. In the past, these justifications have either been rejected by the courts (as when the Supreme Court emphatically rejected the Administration's view of its authority over enemy combatants) or exposed as astonishingly weak (as with the notorious "torture memos"). But OLC did, at least, give the Administration some paper to wave around, with lawyers' names on top.

These "legal" explanations are also invariably accompanied by an insistence that everything the Administration is doing is a necessary component of the amorphous war on terror, and that the American people can and should trust their President to do the right thing. But this argument simply can't justify the Executive's usurpation of power: After all, America has faced crises before without deciding to revert to monarchy.

The Wiretapping: Different Issue, Same Modus Operandi

This latest episode - of warrantless wiretapping - exhibits the same m.o. The Administration is not yet releasing its internal legal analysis for why the President could flout Congress's scheme for authorizing secret surveillance of terrorism suspects. But the contours of this analysis are becoming clearer.

As a first line of defense, the Administration is claiming that Congress, when it enacted its Authorization of the Use of Military Force (AUMF) in the immediate aftermath of 9/11, gave the President a free pass to end-run the FISA court.

This argument is risible. As a general matter, the law strongly disfavors such implied repeals of existing statutes: If a law is meant to decimate prior law, it ought to say that's what it's doing, and generally, it does. And especially when the prior law relates to constitutional rights - here, Fourth Amendment rights - its repeal ought to be crystal clear, so that repeal can immediately be challenged in court.

In addition, nothing in the debate over AUMF suggests that Congress had anything like the NSA surveillance program in mind when it gave Bush the go-ahead to attack Al Qaeda in Afghanistan. After all, that decision was a no-brainer, at the time. What Congressperson was gaming out what would happen years ahead? And again, where in the silence is authorization found?

By this logic, the Administration could invoke the AUMF to override pretty much any federal statute. And that's surely wrong.

Moreover, on a more specific level, Congress purposefully limited the AUMF to the use of force against persons directly connected to Al Qaeda. From what has emerged, the Administration's secret wiretapping program appears to cover a multitude of persons who would not qualify as targets under the AUMF - and, thus, the AUMF rationale falls of its own weight.

The President's real argument, however, is not based on the AUMF, but - once again -- on what he claims is his inherent constitutional powers as commander-in-chief. Here, the President's claim seems breathtaking in scope. He appears to be claiming that the President may disregard every law as he - in his own discretion - deems necessary, to fight a war on terror that has no clearly defined scope, nor any clearly defined foe, nor any knowable end point.

Furthermore, under this theory, it would appear that Congress has no power to curb the President's authority -- because the President alone has the power to define the terrorist threat and the means necessary to combat it.

This is not a constitutional design I recognize. Wasn't one of the Framers' primary concerns to avoid the concentration of such power in a king-like chief executive? Didn't the Framers believe that such a concentration of power was deeply corrupting? And hasn't history only reinforced those lessons?

Revision of the Law May Be Necessary, but Ignoring and Circumventing It Was Not

This issue, it's important to note, is not a political one, and should not be divisive. It may be that this country needs to revise its laws to respond effectively to terrorist threats - and that is the policy issue on which right and left will predictably differ, just as they have on the USA Patriot Act.

But what we all should be able to agree on, is that the Executive's simply opting to act illegally -- without even asking its own same-party Congress to change the law - is wrong.

Perhaps FISA needs to be revamped. Notably, it already contains exceptions for emergencies and the FISA court has a long history of working cooperatively with the intelligence agencies, But some say that the kind of "data mining" the government absolutely must do won't pass muster under current FISA court standards, and that therefore, FISA must be amended.

I don't know whether these claims are true; I'm willing to hear arguments on both sides. It's the missing debate on this, that is the national shame here.

Unilateral Executive Power Is Tyranny, Plain and Simple

I might even accept, for the purposes of argument, that, in the panicky aftermath of 9/11, it was understandable for the President to act unilaterally to protect against a potential second-wave attack, regardless of constitutional limits.

But over four years have passed, and there has been copious time for deliberation and, if necessary, Congressional action. In this context, it simply cannot be that the President, acting alone, has the permanent authority he now claims to override a carefully-wrought congressional scheme for fighting terrorism, and enact his own set of secret rules.

Naturally, such a scheme implicates civil liberties, as enshrined in our Constitution. It is not the President's job, alone, to make the nation's trade-offs between security and privacy. Congress ought to legislate, and if it goes too far, the Supreme Court ought to make sure its legislation stays within constitutional bounds.

But even worse, such a scheme threatens basic democratic principles. This Administration wants virtually unlimited power with essentially no accountability. I might almost be able to stomach Bush's "just trust me" claims of Executive power, if the President could be made truly accountable for his decisions down the road. But Bush wants the power with no public debate and a minimum of public disclosure.

I wouldn't trust any Administration with such a blank check. And this isn't just any Administration. It's an Administration with a deeply troubling history of mistakes and obfuscation, an Administration that seems to expand its definition of terrorism however it finds convenient, an Administration that brooks none of the internal dissent that might check authoritarian impulses.

Against that backdrop, the new revelations of warrantless wiretapping, and the Administration's latest set of explanations, sound less like a plan to fight terror than like tyranny's engines, raring to go.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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NSA Spying Broader Than Bush Admitted

Yahoo! News
NYT: NSA Spying Broader Than Bush Admitted

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

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

The story did not name the companies.

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

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

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

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

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NY Transit Strike: MTA's Violating Taylor Law

New York Daily News
NY Transit Strike: MTA's Violating Taylor Law
by Juan Gonzalez

Gov. Pataki and Mayor Bloomberg have vowed drastic penalties for the striking members of the Transport Workers Union for violating the Taylor Law.

Yet the mayor and the governor have been completely silent about violations of the same Taylor Law by their own appointed officials at the Metropolitan Transportation Authority.

The most well-known portion of the law, Section 210, states that "no public employee or employee organization shall engage in a strike."

That is not, however, the only provision of the law. Other sections also provide protections to public employees.

City union leaders and state lawmakers keep trying to point that out. They say the MTA itself trampled a key provision of the Taylor Law by demanding that TWU President Roger Toussaint accept an inferior pension plan for future members of his union as a condition of a new labor contract.

Section 201 of the law clearly states that "no such retirement benefits shall be negotiated pursuant to this article, and any benefits so negotiated shall be void."

Only the Legislature has the legal authority to approve changes in public employee pension systems.

Not the MTA. Not the mayor. And not the governor all by himself.

That's the way it always has been.

MTA officials have claimed for several days that reforming the union's pension plan became themain unresolved issue to a settlement.

"That's what's known as an impermissible subject of bargaining," said Assemblyman Richard Brodsky (D-Westchester), who is chairman of the Assembly committee that oversees the MTA.

Sure, unions and public agencies sometimes agree, as part of an overall labor settlement, to jointly petition the Legislature for pension changes, but management can't simply force a union to accept a worse retirement plan.

"If the governor is going to be a tough guy about the Taylor Law with the union, he should be tough as well on the law when it comes to the MTA," Brodsky said yesterday.

This crippling strike could be over in hours if Pataki ordered the MTA to adhere to the same Taylor Law he wants the union to respect.

Toussaint said as much to a group of 40 city labor leaders in a telephone conference around noon yesterday. He repeated it a few hours later in a meeting with several dozen black political and religious leaders and in a press conference later in the afternoon.

His plea is now being taken up by many leaders eager to bring labor peace back to the city.

Municipal union leaders, headed by teachers union chief Randi Weingarten, urged the mayor and the governor to set aside the pension issue for now. Meanwhile, several state legislators made the same pitch in Albany.

If there are reforms needed in public employee pensions, they say, they should be negotiated with all the unions involved in the city's retirement system, not by singling out the transit workers union as a test case.

But even before Toussaint spoke, Pataki delivered yet another blistering criticism of the strikers. Worse, he tried to escalate the conflict by urging no further contract talks until theunion returns to work.

In two previous illegal transit strikes during the past 50 years, union leaders and public officials always kept negotiating until they reached a settlement.

Thankfully, MTA Chairman Peter Kalikow moved forward yesterday with serious mediation efforts that continued late last night. Kalikow appears to be the only top MTA official eager to reach a deal.

His boss Pataki, on the other hand, is eager to prove to the nation what a tough-guy President he would make. In Toussaint and his 33,000 union members, he sees his ticket to fame.

So what if the public has to endure a few more days of a transit strike that never should have happened in the first place? Who will listen to a bunch of union members engaged in an illegal strike, the governor and the mayor seem to think.

We'll soon find out if they're right.

Juan Gonzalez is a Daily News columnist. Email Juan at jgonzalez@edit.nydailynews.com.

2005 New York Daily News

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Alito Defended Officials From Wiretap Suits

Yahoo! News
Alito Defended Officials From Wiretap Suits

By DONNA CASSATA, Associated Press Writer

Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps when he worked for the Reagan Justice Department, documents released Friday show.

He advocated a step by step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.

The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.

The Associated Press had requested documents related to Alito under the Freedom of Information Act.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. The FBI had received information about a conspiracy to destroy utility tunnels in Washington and kidnap Henry Kissinger, then national security adviser.

In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.

"The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.

"When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook," the brief said.

Signing the document was Rex E. Lee, then the solicitor general, officials from the Justice Department and Alito, then the assistant to the solicitor general.

That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court held.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

The decision was consistent with the Supreme Court's unanimous ruling in 1972 that it was unconstitutional for the government to conduct wiretaps without court approval despite the Nixon administration's argument that domestic anti-war groups and other radicals were a threat to national security.

Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity.

"There are also strong reasons to believe that our chances of success will be greater in future cases," he wrote. He noted then-Justice William H. Rehnquist would be a key vote and would recuse himself from the Nixon-era case.

The incremental legal strategy is consistent with the approach Alito advocated on chipping away abortion rights. In memos released Friday and last month, Alito said abortion rights should be overturned but recommended a roadmap of dismantling them piece by piece instead of a "frontal assault on Roe v. Wade."

He said of his plan: "It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open."

The documents were among 45 released by the National Archives Friday as the Christmas weekend approached. A total of 744 pages were made public.

Abortion and the president's authority on eavesdropping will be central issues when the Senate Judiciary Committee opens confirmation hearings on Alito's nomination Jan. 9.

Sen. Patrick Leahy (news, bio, voting record) of Vermont, the top Democrat on the committee, said the latest documents "fill in more blanks and deepen the impression of activism that colors Judge Alito's career" and raise issues critical to the panel.

"One of the most important, and one of the most timely, is the issue of unchecked presidential authority and the particular issue of warrantless eavesdropping on the American people," Leahy said.

Another committee Democrat, Sen. Charles Schumer (news, bio, voting record) of New York, released a letter to Alito in which he questioned whether the nominee believes in absolute immunity for the attorney general and other government officials "from suits based on even willful unconstitutional acts."

Schumer vowed to question Alito on the issue and warned that if he refused to answer questions, it would make it harder for members of the panel to support his confirmation.

Bush picked Alito to take the Supreme Court seat held by Associate Justice Sandra Day O'Connor, who is retiring. The federal appellate court judge has been seeking to assure senators that he would put his private views aside when it came time to rule on abortion as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's constitutional right to an abortion.

The June abortion memo contained the same Alito statements as one dated May 30, 1985, which the National Archives released in November — but with a forward note from Reagan administration Solicitor General Charles Fried acknowledging the volatility of the issue and saying it had to be kept quiet.

"I need hardly say how sensitive this material is, and ask that it have no wider circulation," Fried wrote.

___

Alito documents on the Net: http://www.archives.gov

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Who told the worst political untruth of 2005? It’s a shame the list of contenders is so long.

MSNBC.com
Big Lies
Who told the worst political untruth of 2005? It’s a shame the list of contenders is so long.
WEB-EXCLUSIVE
By Eleanor Clift
Newsweek

Dec. 22, 2005 - Every holiday season, we on "The McLaughlin Group" hand out news awards. Some categories, like "Biggest Winner," are easy (My choice was Chief Justice John Roberts, with the oil companies as runner-up). Others are a struggle to fill, like who to insult with the “Overrated” award.

In compiling this year’s list, I had the highest number of entries for the category, “Biggest Lie.” I chose the White House declaration that Karl Rove and Scooter Libby had nothing to do with leaking the identity of a covert CIA agent. They were the principal participants in the effort to discredit former ambassador Joe Wilson because he had raised doubts about one of the pillars of their argument for war, namely that Iraq had tried to buy yellowcake uranium to make a bomb.

Another favorite—heard all the time from the White House—is that “everybody saw the same intelligence we did.” Members of Congress don’t see the President’s Daily Briefing (one of them was the glossed-over pre-9/11 document that warned “Bin Laden Determined to Strike Inside the U.S.”), and they didn’t see all the qualifying caveats about Iraq’s alleged weapons of mass destruction, or the doubts about the credibility of the sources the administration was relying on.

Bush is good at stating the obviously untrue. “We do not torture,” he declared despite ample evidence to the contrary from Abu Ghraib to Guantanamo to secret prisons in Eastern Europe. Vice President Cheney went to Capitol Hill repeatedly to lobby for the U.S. right to torture, capitulating only when the vote went against him 90 to 9. Sen. John McCain, who was tortured when held prisoner during the Vietnam War, took on Bush’s No. 2 and stood up for democratic principles. It’s a wonder Cheney has any credibility left after assuring the country in May, “the insurgency is in its last throes.”

The revelation that President Bush authorized spying on American citizens without warrants is a late entry to the year’s “Biggest Lies” list. Bush says he bypassed the law because of the need for speed. He may believe that, but the facts say otherwise.

The Foreign Intelligence Surveillance Act of 1978 established a special FISA secret court designed to act expeditiously. The executive branch can tap anybody’s phone and not even get a warrant until 72 hours after the fact. The FISA court isn’t picky; it’s only turned down five requests out of 19,000 in its quarter-century existence. Bush publicly and proudly says he will continue to break the law. The Washington Post reported that one FISA court judge has resigned in apparent protest, and the others are asking why we have a secret court when it is ignored.

Bush’s explanation is riddled with lies. He says our enemies are watching and threatens The New York Times, which broke the spying story, with legal action. It takes a vivid imagination to believe that Osama bin Laden and his buddies are keeping up with the niceties of FISA courts and would otherwise have no idea their phones might be tapped. Bush says he talks to Congress all the time and that there was plenty of congressional oversight. Not true. The Gang of Eight (leaders of both parties in the House and Senate, plus the chair and ranking members of the Intelligence Committees) were forbidden to take notes or discuss what they were told with colleagues or staff. Democratic Sen. Jay Rockefeller’s hand-written letter to Cheney expressed uneasiness about the program. Rockefeller couldn’t have its legality evaluated by staff. He couldn’t even have the letter typed because of the secrecy. That hardly qualifies as congressional oversight.

The cavalier attitude toward the checks and balance of a democratic society is a pattern with this administration. Bush and Cheney regard Congress and the judiciary as obstacles, not as equal branches of government. The polls show that a majority of Americans no longer trust this team, which is why Bush and Cheney are hitting back hard at their critics. If they lose this round over spying, the spillover effect will be devastating for their war policy and on any domestic agenda they hope to salvage. We have no mechanism to deal with a president who has lost the trust and confidence of the American people and has three years remaining in office. Impeachment is a nonissue; it’s not going to happen with Republicans in control of the House and Senate.

What will happen is more open insurrection on the part of senators—both Democrats and Republicans. Confirmation hearings for Supreme Court nominee Samuel Alito are scheduled to begin the first week in January. In the weeks since being named by Bush, there have been a series of stories about Alito’s early writings as a member of the Reagan administration. Alito wants us to believe he was a callow young thirtysomething who advocated far-right positions to curry favor for a job. The White House is telling senators that Alito didn’t mean all those things he wrote about disregarding privacy rights and overturning Roe v. Wade—another big lie. No wonder this year’s list was so easy to put together.

URL: http://www.msnbc.msn.com/id/10578257/site/newsweek/from/RSS/

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Bush’s Snoopgate

MSNBC.com
Bush’s Snoopgate

The president was so desperate to kill The New York Times’ eavesdropping story, he summoned the paper’s editor and publisher to the Oval Office. But it wasn’t just out of concern about national security.

WEB-EXCLUSIVE
By Jonathan Alter
Newsweek

Dec. 19, 2005 - Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.

No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on Dec. 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president’s desperation.

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that “the fact that we are discussing this program is helping the enemy.” But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a “shameful act,” it was the work of a patriot inside the government who was trying to stop a presidential power grab.

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

What is especially perplexing about this story is that the 1978 law set up a special court to approve eavesdropping in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact. Since 1979, the FISA court has approved tens of thousands of eavesdropping requests and rejected only four. There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extraconstitutional action.

This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.

In the meantime, it is unlikely that Bush will echo President Kennedy in 1961. After JFK managed to tone down a New York Times story by Tad Szulc on the Bay of Pigs invasion, he confided to Times editor Turner Catledge that he wished the paper had printed the whole story because it might have spared him such a stunning defeat in Cuba.

This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story.

URL: http://www.msnbc.msn.com/id/10536559/site/newsweek/from/RSS/

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The 'I Word'

MSNBC.com
The 'I Word'
Expect 2006 to offer up Nixon-era nastiness and a chorus of calls to impeach Bush.
WEB EXCLUSIVE
By Howard Fineman
Newsweek

Dec. 21, 2005 - In the first weeks and months after 9/11, I am told by a very good source, there was a lot of wishing out loud in the White House Situation Room about expanding the National Security Agency’s ability to instantly monitor phone calls and e-mails between American callers and possible terror suspects abroad. “We talked a lot about how useful that would be,” said this source, who was “in the room” in the critical period after the attacks.

Well, as the world now knows, the NSA—at the prompting of Vice President Dick Cheney and on official (secret) orders from President Bush—was doing just that. And yet, as I understand it, many of the people in the White House’s own Situation Room—including leaders of the national-security adviser’s top staff and officials of the FBI—had no idea that it was happening.

As best I can tell—and this really isn’t my beat—the only people who knew about the NSA’s new (and now so controversial) warrantless eavesdropping program early on were Bush, Cheney, NSA chief Michael Hayden, his top deputies, top leaders of the CIA, and lawyers at the Justice Department and the White House counsel’s office hurriedly called in to sprinkle holy water on it.

Which presents the disturbing image of the White House as a series of nesting dolls, with Cheney-Bush at the tiny secret center, sifting information that most of the rest of the people around them didn’t even know existed. And that image, in turn, will dominate and define the year 2006—and, I predict, make it the angriest, most divisive season of political theater since the days of Richard Nixon.

We are entering a dark time in which the central argument advanced by each party is going to involve accusing the other party of committing what amounts to treason. Democrats will accuse the Bush administration of destroying the Constitution; Republicans will accuse the Dems of destroying our security.

Some thoughts on where all of this is headed:

# The president says that his highest duty is to protect the American people and our homeland. And it is true that, as commander in chief, he has sweeping powers to, as his oath says, “faithfully execute the office” of president. But the entity he swore to “preserve, protect and defend” isn’t the homeland per se—but the Constitution itself.

# The Patriot Act will be extended, but it’s just the beginning, not the end, of the never-ending argument between the Bill of Rights and national security. The act primarily covers the activities of the FBI; the sheer volume of intelligence-gathering across the government has yet to become apparent, and voters will blanch when they see it all laid before them. The department most likely to get in trouble on this: the Pentagon, which doesn’t have a tradition of limiting inquiries, and which, in the name of protecting domestic military installations, will want to look at everyone.

# If you thought the Samuel Alito hearings were going to be contentious, wait till you see them now. Sen. Arlen Specter, the prickly but brilliant chairman of the Senate Judiciary Committee, has said that the issue of warrantless spying by the NSA—and the larger question of the reach of the president’s wartime powers—is now fair game for the Alito hearings. Alito is going to try to beg off but won’t be allowed to. And members who might have been afraid to vote against Alito on the abortion issue might now have another, politically less risky, reason to do so.

# Arguably the most interesting—and influential—Republicans in the Senate right now are the libertarians. They’re suspicious of the Patriot Act and, I am guessing, pivotal in any discussion of the NSA and others' spy efforts. Most are Westerners (Craig, Hagel, Murkowski) and the other is Sen. John Sununu. He is from New Hampshire, which, as anyone who has spent time there understands, is the Wild West of the East Coast. All you have to do is look at its license plate slogan: “Live Free or Die.” It’ll be interesting to see how other nominal small-government conservatives—Sen. George Allen of Virginia comes to mind—handle the issue.

# For months now, I have been getting e-mails demanding that my various employers (NEWSWEEK, NBC News and MSNBC.com) include in their poll questionnaires the issue of whether Bush should be impeached. They used to demand this on the strength of the WMD issue, on the theory that the president had “lied us into war.” Now the Bush foes will base their case on his having signed off on the NSA’s warrantless wiretaps. He and Cheney will argue his inherent powers and will cite Supreme Court cases and the resolution that authorized him to make war on the Taliban and Al Qaeda. They will respond by calling him Nixon 2.0 and have already hauled forth no less an authority than John Dean to testify to the president’s dictatorial perfidy. The “I word” is out there, and, I predict, you are going to hear more of it next year—much more.

URL: http://www.msnbc.msn.com/id/10564288/site/newsweek/from/RSS/

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Latest tax tool: 'Internet shaming'

USA TODAY
Latest tax tool: 'Internet shaming'
By Ben Jones, USA TODAY

Tax scofflaws, beware. State governments are combining new technology with old-fashioned shame to goad delinquent taxpayers to pay up.

At least 18 states have launched websites to post the names of people and businesses that owe back taxes. Maryland calls its website "Caught in the Web." In South Carolina, it's "Debtor's Corner." Wisconsin on Jan. 3 will launch "website of Shame."

Advocates of so-called Internet shaming say it's an inexpensive way to capture millions of dollars at a time when many states have tight budgets and seek politically viable ways to find more revenue.

"Raising taxes is a very radioactive strategy," says Sujit CanagaRetna, a fiscal analyst with the Council of State Governments, a non-partisan group that provides policy information to states. "This is another way to bring in more (of) what is owed to the state in an innovative way that has proven to be fairly successful. It's gathering more popularity across the country."

Georgia's online delinquent tax list has collected at least $19.6 million since it went up in February 2004. Colorado's website has raked in $11 million. Kansas went online in March.

"NOTICE OF PENDING INTERNET POSTING," began the letter the Wisconsin Department of Revenue recently sent to more than 7,000 people and businesses who owe the state at least $25,000 each in sales, income, corporate or other taxes. Wisconsin is owed $771 million in back taxes, about 7% of the $11.5 billion it collected last year. The state isn't expecting the website to recoup all of it. Its goal: $1.5 million a year.

The threat of online exposure is working. At least 88 Wisconsin residents and 21 businesses have agreed to settle debts totaling $7.9 million. "The real success of the program is before the postings are made," says Geraldine Conrad, spokeswoman for the Illinois Department of Revenue. "People are motivated to pay."

Some tax specialists worry about the Internet shaming trend. "How are people going to be compensated when, inevitably, mistakes are made?" says Pete Sepp, spokesman for the National Taxpayers Union, a non-partisan watchdog group.

Jones reports for The Post-Crescent in Appleton, Wis.

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FEMA Slows Search for Kids From Katrina

washingtonpost.com
FEMA Slows Search for Kids From Katrina

By Ceci Connolly
Washington Post Staff Writer

Efforts to locate 500 children still classified as missing after Hurricane Katrina are stalled because the Federal Emergency Management Agency, citing privacy laws, has refused to share its evacuee database with the National Center for Missing and Exploited Children, according to investigators tracking the cases.

Not until the White House and Justice Department intervened earlier this month did Department of Homeland Security officials agree to a compromise that grants FBI agents limited access to information that may provide clues to many of the unresolved cases.

In recent days, FEMA has released data that helped close 15 cases. Yesterday, after inquiries from The Washington Post, the agency sent the FBI a computer disk with the names of 570,000 evacuees.

But as the four-month anniversary of the worst natural disaster in U.S. history approaches, congressional leaders, law enforcement authorities and family advocates say FEMA's slow response has meant that many families that could have been reunited this holiday season instead remain apart.

"We are deeply disappointed by the low priority FEMA assigned to the cases of missing children," Sens. Susan Collins (R-Maine) and Joseph I. Lieberman (D-Conn.) wrote yesterday to FEMA's acting director, R. David Paulison. "And while FEMA may not have sole responsibility to investigate cases of missing children, it should do what is in its power to assist other agencies in completing the investigations."

Officials believe it is likely that many of the 500 children are safe, perhaps even in the care of a family member. But a case is not closed until the relative who reported the child missing learns the youngster's whereabouts and is assured the child is unharmed.

Under U.S. privacy laws, FEMA is prohibited from releasing information such as names and Social Security numbers to anyone.

"The information that people provide us when they are in the midst of, or recovering from, a life-altering event includes Social Security number, income levels, very personal information," said FEMA spokeswoman Nicol Andrews. "We take our charge to protect that information very seriously."

Cornelius J. Armstead, 25, said he has spent the past four months wondering and worrying about what happened to his 2-year-old son, who was with his mother a mile away when New Orleans flooded.

"The storm came. We all evacuated. I don't know which way they went," he said, recounting his frantic attempt to get to the housing project where his son and the child's mother lived. "I tried to get to them, but the water rose so high."

After calling the Red Cross, several shelters and acquaintances, Armstead said, he dialed the missing-children hotline, 800-THE-LOST. "I call it every day," he said.

When Katrina struck the Gulf Coast on Aug. 29, the Justice Department and Louisiana officials asked the National Center for Missing and Exploited Children to handle missing-person reports.

At the height of the chaos, the hotline received 5,500 reports of missing children. Many cases were particularly challenging because few families had managed to save photographs of the children. Others could not provide a telephone number or a permanent address, said the center's president, Ernie Allen. Time was critical, he said, because "we know predators will seek out these unaccompanied, unprotected children."

Although the majority of children are likely to be with adults, some may be with a relative who does not have legal custody of the child. Some may be runaway teens, said Walter Fahr, manager of the Louisiana Clearinghouse for Missing and Exploited Children. Other scenarios are worse, he said.

"We are working on at least one case in which the mother says the child was with her evacuating from New Orleans in the floodwaters and the child slipped out of a life vest," he said. "She's still hanging on to the hope this child is alive."

The center, created by Congress 21 years ago to serve as a quasi-governmental clearinghouse for missing children, dispatched teams of former law enforcement officers to the four affected states and negotiated agreements with the Red Cross and U.S. Postal Service to share evacuee information.

In early October, as leads began to dwindle, the center requested access to FEMA's list of the 2.8 million families that had applied for federal disaster assistance. FEMA balked, saying it was illegal to share the private information. Lawyers at the center argued that because it was working on behalf of the Justice Department "it would fall within one of the exceptions of the Privacy Act for this limited purpose," Allen said. For years, investigators for the center have had access to FBI databases.

On Oct. 25, the center provided the list of 1,600 children missing at the time to FEMA and made its request for the database in writing. On Nov. 23, nearly three months after Katrina hit, FEMA rejected it.

FEMA did, however, run the center's names of missing children through its computers. It found 652 instances in which at least one identifier -- such as a surname or address -- matched an entry on the center's missing persons list, Andrews said. FEMA staff spent the weekend of Dec. 3 calling all 652. They reached 505 and made about 80 "exact matches," she said.

But experts at the center and the FBI said FEMA's social workers are not trained to resolve difficult cases, such as those in which the custody of the child is in dispute.

"That's not what FEMA's business is; that's what the national center does and what the FBI does," said David Johnson, chief of the FBI's Crimes Against Children Unit. "I would want somebody who knows something about children's issues from a criminal perspective talking to the person and child, doing more verification."

When FEMA finally agreed to turn over its list of matches, it contained only 150 names, he said, of which 15 resulted in locating a missing child.

On Dec. 5, White House aides and an official at the Justice Department pressed FEMA to turn over more records, according to congressional investigators and a letter from a high-ranking Justice official.

Soon after, a trickle of additional names began arriving from FEMA, Allen said. Finally, the FBI received the list of 570,000 names, although about half appear to be duplicates, Allen said.

Yesterday evening, according to the center, the FBI searched that list for Armstead's son and the child's mother, Tyra McElvin. There was no match.

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File the Bin Laden Phone Leak Under 'Urban Myths

washingtonpost.com
File the Bin Laden Phone Leak Under 'Urban Myths'

By Glenn Kessler
Washington Post Staff Writer

President Bush asserted this week that the news media published a U.S. government leak in 1998 about Osama bin Laden's use of a satellite phone, alerting the al Qaeda leader to government monitoring and prompting him to abandon the device.

The story of the vicious leak that destroyed a valuable intelligence operation was first reported by a best-selling book, validated by the Sept. 11 commission and then repeated by the president.

But it appears to be an urban myth.

The al Qaeda leader's communication to aides via satellite phone had already been reported in 1996 -- and the source of the information was another government, the Taliban, which ruled Afghanistan at the time.

The second time a news organization reported on the satellite phone, the source was bin Laden himself.

Causal effects are hard to prove, but other factors could have persuaded bin Laden to turn off his satellite phone in August 1998. A day earlier, the United States had fired dozens of cruise missiles at his training camps, missing him by hours.

Bush made his assertion at a news conference Monday, in which he defended his authorization of warrantless monitoring of communications between some U.S. citizens and suspected terrorists overseas. He fumed that "the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak." He berated the media for "revealing sources, methods and what we use the information for" and thus helping "the enemy" change its operations.

White House spokesman Scott McClellan said Monday that the president was referring to an article that appeared in the Washington Times on Aug. 21, 1998, the day after the cruise missile attack, which was launched in retaliation for the bombings of two U.S. embassies in Africa two weeks earlier. The Sept. 11 commission also cited the article as "a leak" that prompted bin Laden to stop using his satellite phone, though it noted that he had added more bodyguards and began moving his sleeping place "frequently and unpredictably" after the missile attack.

Two former Clinton administration officials first fingered the Times article in a 2002 book, "The Age of Sacred Terror." Daniel Benjamin and Steven Simon wrote that after the "unabashed right-wing newspaper" published the story, bin Laden "stopped using the satellite phone instantly" and "the United States lost its best chance to find him."

The article, a profile of bin Laden, buried the information about his satellite phone in the 21st paragraph. It never said that the United States was listening in on bin Laden, as the president alleged. The writer, Martin Sieff, said yesterday that the information about the phone was "already in the public domain" when he wrote the story.

A search of media databases shows that Time magazine had first reported on Dec. 16, 1996, that bin Laden "uses satellite phones to contact fellow Islamic militants in Europe, the Middle East and Africa." Taliban officials provided the information, with one official -- security chief Mulla Abdul Mannan Niazi -- telling Time, "He's in high spirits."

The day before the Washington Times article was published -- and the day of the attacks -- CNN producer Peter Bergen appeared on the network to talk about an interview he had with bin Laden in 1997.

"He communicates by satellite phone, even though Afghanistan in some levels is back in the Middle Ages and a country that barely functions," Bergen said.

Bergen noted that as early as 1997, bin Laden's men were very concerned about electronic surveillance. "They scanned us electronically," he said, because they were worried that anyone meeting with bin Laden "might have some tracking device from some intelligence agency." In 1996, the Chechen insurgent leader Dzhokhar Dudayev was killed by a Russian missile that locked in to his satellite phone signal.

That same day, CBS reported that bin Laden used a satellite phone to give a television interview. USA Today ran a profile of bin Laden on the same day as the Washington Times's article, quoting a former U.S. official about his "fondness for his cell phone."

It was not until Sept. 7, 1998 -- after bin Laden apparently stopped using his phone -- that a newspaper reported that the United States had intercepted his phone calls and obtained his voiceprint. U.S. authorities "used their communications intercept capacity to pick up calls placed by bin Laden on his Inmarsat satellite phone, despite his apparent use of electronic 'scramblers,' " the Los Angeles Times reported.

Officials could not explain yesterday why they focused on the Washington Times story when other news organizations at the same time reported on the satellite phone -- and that the information was not particularly newsworthy.

"You got me," said Benjamin, who was director for counterterrorism on the National Security Council staff at the time. "That was the understanding in the White House and the intelligence community. The story ran and the lights went out."

Lee H. Hamilton, vice chairman of the Sept. 11 commission, gave a speech in October in which he said the leak "was terribly damaging." Yesterday, he said the commission relied on the testimony of three "very responsible, very senior intelligence officers," who he said "linked the Times story to the cessation of the use of the phone." He said they described it as a very serious leak.

But Hamilton said he did not recall any discussion about other news outlets' reports. "I cannot conceive we would have singled out the Washington Times if we knew about all of the reporting," he said.

A White House official said last night the administration was confident that press reports changed bin Laden's behavior. CIA spokesman Tom Crispell declined to comment, saying the question involves intelligence sources and methods.

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