Friday, December 01, 2006

Hot Supreme Court Battle Brewing; Government and 12 States Square Off Over Global Warming Case

ABC News
Hot Supreme Court Battle Brewing
Government and 12 States Square Off Over Global Warming Case
By ARIANE DeVOGUE

Nov. 29, 2006— - The Supreme Court is set to enter the debate on global warming for the first time today when 12 states and several environmental groups argue that the Bush administration should regulate the release of carbon dioxide and other greenhouse gases from new motor vehicles.

The states are challenging a 2003 Environmental Protection Agency finding that, under the Clean Air Act, the agency does not have the authority for such regulation.

Government lawyers argue on behalf of the EPA that even if the administration had the authority to regulate, it would decline to do so at this time. They note the administration's policy aimed at global climate change in general does not include setting emissions standards for new cars.

In the briefs the lawyers write, "As ongoing scientific studies provide additional information about the problem and potential solutions, the United States stands ready to take further measures and to work with the rest of the world to address the phenomenon of climate change."

The 12 states believe that the effects of climate change caused by global warming will wreak havoc on coastal properties and increase emergency response costs due to sudden storms and floods.

In their briefs, they argue that the EPA does indeed have the authority to regulate the emissions. The lawyers charge, "The proper approach to discerning the Clean Air Act's meaning reveals that carbon dioxide and other air pollutants associated with climate change fit exactly within the Act's definition of 'air pollutants.'"

The states -- Massachusetts, California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Vermont, Oregon, Washington, Rhode Island, as well as the District of Columbia and American Samoa -- accuse the EPA of trying to "ignore" and "distort" the language of the Clean Air Act.

The stakes are high in the case. Environmental groups like the Community Rights Counsel hope the Court will send the case back to the EPA for reconsideration.

Executive director Douglas T. Kendall says, "This would force the agency to finally confront the science of global warning, which points only toward a need to regulate greenhouse gas emissions."

The government is urging the court to reject the case without even ruling on the merits by finding that the 12 states have no right to sue because they haven't shown sufficient proof that they would benefit from the regulations they seek. The government charges, "Nothing in the record suggests that so small a fraction of worldwide greenhouse gas emissions could materially affect the overall extent of global climate change."

The automobile industry fears a ruling against the government could eventually mean severe financial consequences.

William O'Keefe of the George Marshall Institute, which is aligned with the administration's position in this case, says "if the auto industry had to meet some standard for reduced auto emissions it would have to radically alter its fleet." O'Keefe worries that the implications of an adverse ruling would lead to additional regulations in other industries: "It could certainly open the door to other industries with costs not in the millions of dollars, but in the billions."

The case will be decided sometime next year.



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US warns of al-Qaeda cyber threat despite lack of edivence to corroborate the threat

BBC
US warns of al-Qaeda cyber threat

The US government has warned of an al-Qaeda call to attack US online stock market and banking services.

The threat, seen on an al-Qaeda website, applied to the whole of December.

It was said to be in revenge for the continued detention of suspects at the US prison camp in Guantanamo Bay.

A spokesman for the Department of Homeland Security, Russ Knocke, said there was no evidence to corroborate the threat.

He said the US Computer Emergency Readiness team had issued a "situational awareness report to industry stakeholders".

However, he said it had been issued out of what he called "an abundance of caution".

The warning said the threat called for attacks to begin Friday and run through the month of December.

It is described as an "aspirational threat" and the nature of the warning is particularly vague, the BBC's Guto Harri in New York says.

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Lawmakers warn White House on air ownership plan

Reuters
Lawmakers warn White House on air ownership plan
By John Crawley

WASHINGTON (Reuters) - A bipartisan group of U.S. lawmakers led by an incoming Democratic committee chairman has warned the White House not to proceed with a proposal to ease restrictions on foreign investment in U.S. airlines.

Rep. James Oberstar, a Minnesota Democrat who will lead the House of Representatives Transportation Committee beginning in January, and three other House members suspect the Bush administration may be planning an end run around Congress and urged White House Chief of Staff Josh Bolten to withdraw the plan entirely.

"Making the rule final in the face of bipartisan congressional opposition would be a very poor start to the 110th Congress," Oberstar wrote in a letter to Bolten on Wednesday.

New Jersey Democrat Jerry Costello, the incoming chairman of the House aviation subcommittee, and Republicans Frank Lobiondo of New Jersey and Ted Poe of Texas also signed the letter.

The Bush administration proposal a year ago to reverse a World War Two-era law and give overseas interests say in how the carriers they invest in are run stalled in August when Congress voted to block any attempt to change ownership rules.

European Union negotiators want greater leeway for international airline investors before approving an agreement with the United States that would, among other things, give American carriers more opportunities for transatlantic service, including greater access to London's Heathrow airport.

But the congressional vote to delay U.S. action has no teeth yet because it was included in transportation spending legislation that will not be finished before lawmakers adjourn after the lame-duck session in December, and will not likely be addressed again until February at the earliest.

Oberstar now suspects the administration may try to exploit the congressional leadership change and the unexpected inaction on the spending bill to quietly finalize the investment proposal.

Oberstar and his colleagues said it was their understanding that transportation planners could act soon on the change that has some support among U.S. airlines. There is little to no foreign investment in U.S. carriers now.

Transportation Department officials would not discuss their plans for the rule they say could inject new capital into the U.S. airline industry and invigorate competition, lowering prices and improving service.

Andrew Steinberg, the agency's assistant secretary for aviation and international affairs, told a conference of airport executives on Thursday the administration was committed to more robust international aviation markets for U.S. airlines, especially in Europe.

"We must, whenever possible, reach global solutions," Steinberg said.

Daniel Calleja Y Crespo, the European Commission's air transport director, told the same conference that the Europeans are willing to wait longer for a U.S. decision. "We have to be a little bit patient and hopefully in coming months make progress."




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Thursday, November 30, 2006

FEMA Ordered to Restore Evacuees’ Housing Aid

The New York Times
FEMA Ordered to Restore Evacuees’ Housing Aid
By SHAILA DEWAN

FEMA has to restore housing assistance and pay back rent to thousands of Hurricane Katrina evacuees who had been deemed ineligible for long-term housing assistance, a federal judge ruled yesterday.

The judge, Richard J. Leon of Federal District Court for the District of Columbia, wrote that the agency also had to improve an appeals process that evacuees had long said was confusing, contradictory and amounted to an arbitrary denial of help.

“It is unfortunate, if not incredible, that FEMA and its counsel could not devise a sufficient notice system to spare these beleaguered evacuees the added burden of federal litigation to vindicate their constitutional rights,” Judge Leon wrote.

The suit was brought by Acorn, a housing advocacy group that runs the Katrina Survivors Association. Michael Kirkpatrick, a lawyer with Public Citizen who represented Acorn, said that as many as 11,000 families could be affected based on numbers that the Federal Emergency Management Agency provided in court papers.

A spokesman for the agency, Aaron Walker, said it had not decided whether to seek a stay of the decision.

Last spring, the agency began notifying thousands of families given emergency shelter that they did not qualify for long-term help with rent and utility payments. That surprised many families who had been given housing vouchers valid for a year.

For months, families who had lost everything struggled to understand why they had been rejected and how to appeal that decision.

In a process that Judge Leon called Kafkaesque, families received notification letters with “reason codes” instead of actual reasons, were given different information each time they called the agency help line or found that the agency had erroneously determined that their house had “insufficient damage” or that someone else in their household (often a roommate) had already applied for assistance.

Mayor Bill White of Houston, where many evacuees fled from the Gulf Coast, was so outraged that he sent building inspectors to New Orleans to certify that the evacuees’ houses were uninhabitable.

“Some families were told, ‘Reason for denial: Other,’ and there’s no explanation for what ‘other’ means,” Mr. Kirkpatrick said.

Some families received two letters with two different codes.

The judge said that the lack of clarity deprived evacuees of their rights of due process, pointing out that the agency had conceded that thousands of families had been incorrectly ruled ineligible.

In a statement after the decision, Mr. Walker of FEMA continued defending the process, saying the agency had given applicants 60 days to appeal and had listed the requirements.

“Additionally,” Mr. Walker wrote, “FEMA established a team dedicated to handling appeals on an expedited basis and initiated calls to applicants in an effort to help them understand what documentation was needed to process their case.”

The transfers of families from emergency housing to long-term help began last spring. Mayor White repeatedly persuaded the agency to delay evictions while it reviewed each family’s file.

The families who managed to stay in apartments financed by the agency until the end of August are entitled to the reinstatement of rent payments and reimbursement for three months’ back rent, the judge said.

All families deemed ineligible, no matter when, will receive more thorough explanations of the reasons and how to appeal their cases.




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Powell says world should recognize Iraq at civil war

Reuters
Powell says world should recognize Iraq at civil war
By Diala Saadeh

DUBAI (Reuters) - Former U.S. Secretary of State Colin Powell said on Wednesday Iraq had descended into civil war and urged world leaders to accept that "reality".

Powell's remarks came ahead of a meeting between Bush and Iraqi prime minister Nuri al-Maliki in the Jordanian capital to discuss the security developments in Iraq.

"I would call it a civil war," Powell told a business forum in the United Arab Emirates. "I have been using it (civil war) because I like to face the reality," added Powell.

He said world leaders should acknowledge Iraq was in civil war.

Powell outlined the case against Iraq at the U.N. Security Council ahead of the war, which was based broadly on intelligence that Iraq had weapons of mass destruction.

President George W. Bush denied on Tuesday that sectarian violence had reached the scale of civil war. He said the latest wave of violence was part of a nine-month-old pattern of attacks by al Qaeda militants aimed at fomenting sectarian tension.

Bush and Maliki are scheduled to hold crisis talks on Wednesday and Thursday.

Bush is under growing pressure to find a new policy to curb sectarian strife in Iraq and to secure an exit for 140,000 U.S. troops.

Powell, speaking at a world leaders forum in Dubai, said Washington should adopt a more balanced policy toward Iraq's political parties and sects to avoid marginalizing Sunni Muslims.

"We have to accept what all Iraqis accept, not to end up seeing a Shi'ite-dominated regime," he said.

However, Powell said troops had to continue their job in Iraq until their mission is done, but not to remain too long.

"The coming strategy has to be an Iraqi strategy, not American strategy," said Powell.



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Iraq panel recommends U.S. move away from combat role

Reuters
Iraq panel recommends U.S. move away from combat role

WASHINGTON (Reuters) - The Iraq Study Group has decided to recommend the U.S. military transition from a combat to a support role in Iraq roughly over the next year, a source familiar with the panel's deliberations said on Wednesday.

"The main thing is (the group is) calling for a transition from a combat role to a support role," said the source, who spoke on condition that he not be named. "It's basically a redeployment."

The source said the idea was to shift U.S. combat forces both to bases inside Iraq as well as elsewhere in the region as the military gradually moved away from combat operations, adding that this should happen over the next year or so.

The New York Times earlier reported that there was no timetable for the proposed U.S. pullback, but the source said: "there is a kind of indication in the report as to when that ought to be completed ... sometime within the next year."

The independent, bipartisan group also decided to call for a regional conference that could lead to direct U.S. talks with Iran and Syria, both accused by the United States of fomenting violence in Iraq, the source added.

Many in Washington have held out hope that the group's report would provide a way for the United States to extricate itself from an increasingly deadly and unpopular war or, at least, a set of recommendations on how to move forward that could attract support from both Democrats and Republicans.

Their conclusions are likely to carry significant political weight even if President Bush chooses to ignore them, especially after his fellow Republicans lost control of the U.S. Congress in November 7 elections largely because of deep public discontent with the Iraq war.




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Wednesday, November 29, 2006

Judge strikes down Bush on terror groups

Yahoo! News
Judge strikes down Bush on terror groups
By LINDA DEUTSCH, AP Special Correspondent

A federal judge struck down President Bush's authority to designate groups as terrorists, saying his post-Sept. 11 executive order was unconstitutionally vague, according to a ruling released Tuesday.

The Humanitarian Law Project had challenged Bush's order, which blocked all the assets of groups or individuals he named as "specially designated global terrorists" after the 2001 terrorist attacks.

"This law gave the president unfettered authority to create blacklists," said David Cole, a lawyer for the Washington, D.C.-based Center for Constitutional Rights that represented the group. "It was reminiscent of the McCarthy era."

The case centered on two groups, the Liberation Tigers, which seeks a separate homeland for the Tamil people in Sri Lanka, and Partiya Karkeran Kurdistan, a political organization representing the interests of Kurds in Turkey.

U.S. District Judge Audrey Collins enjoined the government from blocking the assets of the two groups. The same judge two years ago invalidated portions of the Patriot Act.

Both groups consider the Nov. 21 ruling a victory; both had been designated by the United States as foreign terrorist organizations.

Cole said the judge's ruling does not invalidate the hundreds of other designated terrorist groups on the list but "calls them into question."

Charles Miller, a spokesman for the U.S. Department of Justice, said, "We are currently reviewing the decision and we have made no determination what the government's next step will be."

A White House spokeswoman declined to immediately comment. At the time of his order creating the list, Bush declared that the "grave acts of terrorism" and the "continuing and immediate threat of future attacks" constituted a national emergency.

The judge's 45-page ruling was a reversal of her own tentative findings last July in which she indicated she would uphold wide powers asserted by Bush under an anti-terror financing law. She delayed her ruling then to allow more legal briefs to be filed.

She also struck down the provision in which Bush had authorized the secretary of the treasury to designate anyone who "assists, sponsors or provides services to" or is "otherwise associated with" a designated group.

However, she let stand sections of the order that penalize those who provide "services" to designated terrorist groups. She said such services would include the humanitarian aid and rights training proposed by the plaintiffs.

The Humanitarian Law Project planned to appeal that part of the ruling, Cole said.

"We are pleased the court rejected many of the constitutional arguments raised by the plaintiffs, including their challenge to the government's ban on providing services to terrorist organizations," Miller said Tuesday. "However, we believe the court erred in finding that certain other aspects of the executive order were unconstitutional."

The ruling was still considered a victory, Cole said.

"Even in fighting terrorism the president cannot be given a blank check to blacklist anyone he considers a bad guy or a bad group and you can't imply guilt by association," Cole said.

In 2004, Collins ruled that portions of the Patriot Act were too vague and, even after Congress amended the act in 2005, she ruled the provisions remained too vague to be understood by a person of average intelligence and were therefore unconstitutional.




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Bush says troops will stay till task accomplished

Reuters
Bush says troops will stay till task accomplished
By Alastair Macdonald

BAGHDAD (Reuters) - President Bush said on Tuesday the hand of al Qaeda lay behind sectarian violence racking Iraq, and he would not pull troops out "before the mission is complete".

Bush, speaking in the Baltic republics before a NATO summit, deflected talk of "civil war" -- a description which could increase pressure on him to withdraw U.S. forces.

"There is one thing I'm not going to do. I am not going to pull our troops off the battlefield before the mission is complete," he said in a speech at the University of Latvia.

In Baghdad, U.S. military spokesman Major General William Caldwell said there had been a "dramatic spike" in killings and said violence would rise but still did not meet the military's definition of civil war.

Car bombs close to west Baghdad's main Yarmouk hospital killed four people and wounded 40 on Tuesday. Five young Iraqi girls were killed in Ramadi and in Kirkuk a suicide bomber attacked the governor's convoy.

Iran's Supreme Leader Ayatollah Ali Khamenei told the visiting Iraqi president the U.S. occupation and U.S.-backed "agents" in the region were to blame for Iraq's violence.

Ferocious sectarian conflict between Sunnis and Shi'ites since the bombing of a Shi'ite shrine in February has eclipsed the Sunni insurgency as the main source of turmoil.

The New York Times and other U.S. news outlets have now adopted the term "civil war" to describe the violence.

The White House acknowledged on Monday Iraq was in a "new phase" but denied it amounted to civil war.

Asked at a news conference in Estonia what the difference was between the bloodshed and civil war, Bush said recent bombings were part of a pattern of al Qaeda attacks aimed at provoking conflict between religious groups.

"The plan of Mr. Zarqawi was to foment sectarian violence," he said, referring to the former leader of al Qaeda in Iraq killed by a U.S. air strike in June, Abu Musab al-Zarqawi.

"What you're seeing on TV started last February," he said. "It was an attempt by people to foment sectarian violence."

Caldwell said Iraq was not in a civil war because the government was functioning, it had the loyalty of its security forces and no group was trying to overthrow and replace it.

But he predicted "elevated levels of violence in the next couple of weeks ... al Qaeda, foreign terrorists and extremists do not want to let Iraqis decide their own future".

IRAN

Iraqi President Jalal Talabani was visiting Iran in the hope it can help stem the bloodletting. Anti-American President Mahmoud Ahmadinejad said on Monday Iran would do what it could.

Iranian television quoted Khamenei as telling Talabani on Tuesday: "The first step to resolve the insecurity in Iraq is the withdrawal of the occupiers and handing over the security issues to the Iraqi government, which is backed by the people.

"Some U.S. agents in the region are the middle men for implementing American policies and creating an insecure Iraq."

Bush said the Iraqi government was free to talk to Iran, but U.S. conditions for direct talks with Tehran remained unchanged -- it must suspend nuclear fuel enrichment.

Washington is keen to stop Iran's nuclear program, which it suspects aims to produce atomic weapons. Iran denies it.

The United States is facing calls to engage Tehran to help end the bloodshed, and Bush and Iraqi Prime Minister Nuri al-Maliki are due to meet in Jordan this week. U.S. officials say contacts with Iran and Syria will be on their agenda.

U.N. Secretary-General Kofi Annan proposed on Tuesday an international conference among Iraqi political parties and said again that Syria and Iran, needed to be engaged.

"We should bring them (Syria and Iran) in and get them to work with us in resolving the issue, and let them assume some of the responsibility," Annan told reporters in New York.

Six Iraqi's, including five girls ranging in age from infant to teenager, were killed on Tuesday during a firefight between a U.S. patrol and suspected insurgents in Ramadi, western Iraq, the U.S. military said.

"In a very tragic way, today reminds us that insurgents' actions throughout Iraq are felt by all," said military spokesman Marine Lt. Col. Bryan Salas.

A man blew himself up next to the convoy of Kirkuk governor Abdul-Rahman Mustafa, killing a passerby and wounding 12 people.

"It was the third assassination attempt on my life, but it will not stop me doing my job," Mustafa told Reuters.

(Additional reporting by Caren Bohan and Paul Taylor in Tallinn)



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Immigration files missing

Yahoo! News
Immigration files missing

About 30,000 applications from immigrants seeking citizenship were processed by the government even though thousands of background files used to determine eligibility were missing, congressional investigators found.

Details of the investigation by the Government Accountability Office were released by Republican Sens. Chuck Grassley of Iowa and Susan Collins of Maine Tuesday.

According to the GAO, 14 Citizenship and Immigration Services offices were missing 110,000 so-called alien files, or A-files. Such files contain applications and other documents of some noncitizens and serve as the primary file for the immigrant and help determine eligibility.

Grassley and Collins said the citizenship and immigration offices, which are part of the Department of Homeland Security, rely on A-files to help determine eligibility for immigration benefits. The files are used by homeland security and law enforcement agencies during criminal investigations and to decide whether someone should remain in the U.S.

The GAO said the citizenship and immigration agency may not have consulted A-files when processing 30,000 naturalization applications in 2005. A-files were checked in 96 percent of the naturalization cases processed that year. The agency manages 55 million A-files.

In addition, the number of applications processed without consulting A-files could have been less because workers sometimes don't record whether they've consulted the files, the GAO said.

Spokesmen at Department of Homeland Security and Citizenship and Immigration Services could not be reached immediately Tuesday evening.

Grassley and Collins said they requested the investigation after the Homeland Security agency granted U.S. citizenship to a suspected terrorist, without checking an A-file, in 2002.

"It only takes one missing file of somebody with links to a terrorist organization to become an American citizen," Grassley said in a news release.

The missing files also cause delays for immigrants with no security issues from becoming U.S. citizens, the senators said.

The senators said the agency agreed with the GAO to require workers to record whether an A-file was used to process a naturalization application and to use an automated file tracking system.

___

On the Net: To read a copy of the report: http://grassley.senate.gov/



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Judge rules insurance covers New Orleans homeowners

Reuters
Judge rules insurance covers New Orleans homeowners
By Jeffrey Jones

NEW ORLEANS (Reuters) - A Louisiana federal judge has ruled many New Orleans homeowners whose houses sustained water damage after Hurricane Katrina are not excluded from coverage under their insurance policies, a judgment that represents a loss for the insurance industry.

In an 85-page judgment, U.S. District Court Judge Stanwood Duval denied motions by some insurers seeking to stop policyholders from receiving claims they said were prevented by exclusion language spelled out in the policies.

The insurance companies argued the industry standard wording for what constitutes a flood covers any inundation of dry land by water.

But in his decision, which insurers are expected to appeal, Duval drew a distinction between flooding that occurs naturally and the destructive force of the water that rushed into the city when the levees gave way.

He also said insurers' definitions of the word "flood" were ambiguous and did not necessarily include man-made causes, such as levee failures.

"It is the considered opinion of the Court that because the policies are all-risk, and because 'flood' has numerous definitions, it reasonably could be limited to natural occurrences," Duval wrote.

One exception was State Farm Fire & Casualty Co., whose policy language specifically spelled out exclusion of flood coverage regardless of the cause.

Several levees and footwalls in and around New Orleans breached after the deadly August 29, 2005 storm, submerging 80 percent of the city and causing severe damage to more than 150,000 homes. Some studies have blamed the failures on poor design and maintenance of the flood barriers.

The judgment covers four separate cases under an umbrella for levee and canal failure proceedings and involved State Farm, Travelers Property Casualty Co. of America, Encompass Insurance Co. and a host of others.

"In the New Orleans area, everyone who bought insurance from a company other than State Farm at the moment now stands the prospect of getting full coverage under their homeowners policy for their damages, to the extent those damages were the result of water being released from the levee," John Ellison, co-lead counsel for the plaintiffs, said on Tuesday.

The decision runs counter to that of a judge in Mississippi, who ruled in August that a couple from that state, whose home was hit with $130,000 of damage from Katrina, was not covered by their policy due to the exclusion of flood coverage.

One insurance industry official said he believed the ruling will be overturned on appeal, as it appears to ignore that companies are using the well-established standards accepted by federal regulators.

If it stands, it will force insurers to restrict coverage and raise rates in the hurricane-ravaged Gulf Coast and slow the recovery, said Robert Hartwig, chief economist with the Insurance Information Institute.

However, companies have already raised rates even without paying the water damage claims yet, Ellison said.

Katrina cost insurers about $41 billion in claims, the largest event in the history of the industry, with homes accounting for nearly half of the total.



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Hail to the chief

Boston Globe
Hail to the chief
By Charlie Savage

Dick Cheney's mission to expand -- or 'restore' --the powers of the presidency

ANN ARBOR, MICH. -- In July 1987, then-Representative Dick Cheney, the top Republican on the committee investigating the Iran-contra scandal, turned on his hearing room microphone and delivered, in his characteristically measured tone, a revolutionary claim.

President Reagan and his top aides, he asserted, were free to ignore a 1982 law at the center of the scandal. Known as the Boland Amendment, it banned US assistance to anti-Marxist militants in Nicaragua.

"I personally do not believe the Boland Amendment applied to the president, nor to his immediate staff," Cheney said.

Most of Cheney's colleagues did not share his vision of a presidency empowered to bypass US laws governing foreign policy. The committee issued a scathing, bipartisan report accusing White House officials of "disdain for the law."

Cheney refused to sign it. Instead, he commissioned his own report declaring that the real lawbreakers were his fellow lawmakers, because the Constitution "does not permit Congress to pass a law usurping Presidential power."

The Iran-contra scandal was not the first time the future vice president articulated a philosophy of unfettered executive power -- nor would it be the last. The Constitution empowers Congress to pass laws regulating the executive branch, but over the course of his career, Cheney came to believe that the modern world is too dangerous and complex for a president's hands to be tied. He embraced a belief that presidents have vast "inherent" powers, not spelled out in the Constitution, that allow them to defy Congress.

Cheney bypassed acts of Congress as defense secretary in the first Bush administration. And his office has been the driving force behind the current administration's hoarding of secrets, its efforts to impose greater political control over career officials, and its defiance of a law requiring the government to obtain warrants when wiretapping Americans. Cheney's staff has also been behind President Bush's record number of signing statements asserting his right to disregard laws.

A close look at key moments in Cheney's career -- from his political apprenticeship in the Nixon and Ford administrations to his decade in Congress and his tenure as secretary of defense under the first President Bush -- suggests that the newly empowered Democrats in Congress should not expect the White House to cooperate when they demand classified information or attempt to exert oversight in areas such as domestic surveillance or the treatment of terrorism suspects.

Peter Shane, an Ohio State University law professor, predicted that Cheney's long career of consistently pushing against restrictions on presidential power is likely to culminate in a series of uncompromising battles with Congress.

"Cheney has made this a matter of principle," Shane said. "For that reason, you are likely to hear the words 'executive privilege' over and over again during the next two years."

Cheney declined to comment for this article. But he has repeatedly said his agenda includes restoring the presidency to its fullest powers by rolling back "unwise" limits imposed by Congress after the Vietnam War and the Watergate scandal.

"In 34 years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," Cheney said on ABC in January 2002. "I feel an obligation...to pass on our offices in better shape than we found them to our successors."

Cheney's ideal of presidential power is the level of power the office briefly achieved in the late 1960s, the era of what historian Arthur Schlesinger Jr. called the "imperial presidency."

Early in the Cold War, presidents began invoking national security to seize greater power from Congress. This concentration of authority peaked under President Richard Nixon, who famously asserted that "when the president does it, that means it's not illegal." But Watergate reawakened Congress, which passed new laws to regulate presidential power.

Cheney was a close observer of that era. He landed his first job in the federal government in 1969, when Donald Rumsfeld hired him as an assistant at the Office of Economic Opportunity. The antipoverty agency, set up by Congress during the Johnson administration, was unpopular among conservatives, and Rumsfeld's and Cheney's job was to help Nixon impose greater political control over the office.

A chief target was the agency's legal aid program, headed by Terry Lenzner. Now a private investigator, Lenzner said in a recent interview that the White House pressured him to fire lawyers who filed class-action lawsuits on behalf of the poor. But Lenzner said he could not fire them because of the way Congress had written the agency's statute.

"I was being told, 'You have to put a stop to this, you have to control these lawyers,'" Lenzner recalled. "But I said that 'If I do what you want me to do, it will violate the law.'"

The orders to fire lawyers, Lenzner said, came from other White House aides, not Rumsfeld or Cheney personally. Still, in November 1970, Rumsfeld summoned Lenzner to his office, and, with Cheney at his side, fired Lenzner because he was unwilling to follow orders.

In August 1974, Nixon resigned rather than face impeachment by Congress. The new president, Gerald Ford, asked Rumsfeld to be his White House chief of staff, and Rumsfeld again made Cheney his deputy. A year later, Rumsfeld became secretary of defense, and Cheney replaced him as Ford's top aide.

In his new role, Cheney was exposed to national security issues from the perspective of a White House that wanted to preserve secrets in the face of congressional demands for more openness. Soon after Rumsfeld and Cheney took on their new posts, Congress passed a bill to strengthen the Freedom of Information Act. The bill allowed judges to review classified documents to determine if they were being shielded for political purposes.

In October 1974, Ford vetoed the legislation, telling Congress that the bill "would violate constitutional principles." Congress, however, overrode his veto, and lawmakers soon threatened to impose further limits on presidential power.

In December 1974, The New York Times reported that the CIA had engaged in an illegal domestic spying program for two decades, tapping phones, opening mail, and breaking into homes of antiwar protesters. The article, by investigative reporter Seymour Hersh, prompted a congressional uproar.

In a memo to Ford, obtained at the Ford Presidential Library in Ann Arbor, Mich., Cheney urged the swift creation of a presidential commission to investigate the CIA. Cheney wrote that doing so was "the best prospect for heading off congressional efforts to further encroach on the executive branch."

Ford created the commission, but Congress moved in anyway. A Senate committee chaired by Idaho Democrat Frank Church began demanding access to secret documents. But Cheney soon saw a chance to convince the public that investigating intelligence operations was dangerous and unwise.

In May 1975, Hersh wrote an article discussing how US submarines eavesdropped on the Soviet Union's undersea cables. Fearing that the article had damaged national security, Cheney pushed the idea of indicting the reporter using the 1917 Espionage Act.

Making an example out of Hersh, Cheney wrote, would "create an environment" that might intimidate both the press and Congress. "Can we take advantage of it to bolster our position on the Church Committee investigation? To point out the need for limits on the scope of the investigations?" Cheney wrote. The idea, however, was scrapped to avoid attracting the Soviets' attention to Hersh's article.

The next spring, after revelations that the National Security Agency had monitored the phone calls of American civil rights and antiwar activists, Congress drafted legislation to require warrants for domestic surveillance. Cheney's allies, including Defense Secretary Rumsfeld and then-CIA director George H.W. Bush, opposed such a bill as a derogation of presidential power. But Ford decided not to fight it.

Congress passed the warrant requirement as the Foreign Intelligence Surveillance Act of 1978 -- the same law that the Bush-Cheney administration later bypassed with its warrantless wiretapping program.

After Ford lost the 1976 presidential election to Jimmy Carter, Cheney returned to Wyoming and in 1978 won a seat in Congress, where he specialized in intelligence matters. During the Iran-contra hearings, Cheney failed to convince a majority of his colleagues that the Reagan administration was justified in ignoring the Boland Amendment, but he moved quickly to block new congressional encroachments on what he saw as a president's exclusive turf.

When the Senate passed a bill forcing presidents to notify Congress of all covert operations within 48 hours, Cheney led a successful fight to defeat the bill in the House. He argued that Congress was prone to leaks and had no authority to force the commander-in-chief to share information about covert operations.

"The 48-hour bill would 'get back' at President Reagan by tying the hands of all future presidents," Cheney wrote in a May 1988 Wall Street Journal column. "That approach will achieve nothing useful."

The next year, Cheney became defense secretary under President George H.W. Bush. In his new position, Cheney again pushed for an expansive view of presidential power -- most dramatically in late 1990, when Cheney urged Bush to launch the Gulf War without asking Congress for authorization.

For all major overseas wars from 1789 to 1950, presidents obeyed the constitutional provision giving Congress alone the power to declare war. But in Korea and Vietnam, Presidents Truman, Johnson, and Nixon defied this constraint. They asserted that the commander-in-chief had "inherent" power to take the country to war on his own.

Seeking to restore its constitutional role, Congress passed the War Powers Resolution in 1973, requiring presidents to consult Congress when sending troops into battle.

After Saddam Hussein invaded Kuwait in August 1990, Bush sent 500,000 US troops to Saudi Arabia. As they prepared to attack the Iraqi forces, Cheney told Bush that it was unnecessary and too risky to seek a vote in Congress.

"I was not enthusiastic about going to Congress for an additional grant of authority," Cheney recalled in a 1996 PBS "Frontline" documentary. "I was concerned that they might well vote 'no' and that would make life more difficult for us."

But Bush rejected Cheney's advice and asked Congress for a vote in support of the war. The resolution passed -- barely. Had Congress voted no, Cheney later said, he would have urged Bush to launch the Gulf War regardless.

"From a constitutional standpoint, we had all the authority we needed," Cheney said in the 1996 documentary. "If we'd lost the vote in Congress, I would certainly have recommended to the president that we go forward anyway."

As the Gulf War proceeded, Cheney fought with Congress on other fronts. After civilian Pentagon lawyers clashed with military attorneys over the handling of any bodies contaminated by biological weapons, Cheney asked Congress to change the law to place all military attorneys under the control of civilian political appointees. Congress rejected Cheney's proposal. But in March 1992, Cheney's deputy issued an administrative order defying the expressed will of Congress.

At the same time, Cheney was thwarting Congress by refusing to issue contracts for the V-22 Osprey, a plane that was plagued with technical problems. Cheney opposed the V-22 program, but Congress appropriated funds for it.

By refusing to issue contracts, Cheney revived a Nixon-era tactic of "impounding" funds -- refusing to spend money for programs that he didn't like. Congress had passed a law in 1974 to ban impoundment. Cheney, who later said he believes the anti-impoundment law unconstitutionally infringes on executive power, ignored it.

But Congress forced Cheney to back down in July 1992, when his top assistant, David Addington, was nominated to be the Pentagon's general counsel and came before a Senate confirmation hearing.

"How many ways are there around evading the will of Congress? How many different legal theories do you have?" Senator Carl Levin, Democrat of Michigan, thundered at Cheney's aide.

"I do not have any, senator," said Addington. He was confirmed only after promising that the Pentagon would restore the military lawyers' independence and issue V-22 contracts as quickly as possible.

Cheney left government after Bill Clinton was elected president in 1992, but he returned as a deeply influential vice president eight years later. His aide Addington became a dominant member of the administration's legal team, and together, Cheney and Addington made the assertion of sweeping executive powers a hallmark of George W. Bush's presidency.

One of Cheney's first acts as vice president was to convene an energy policy task force, inviting energy company lobbyists to suggest a package of tax breaks and other incentives for their companies.

When Congress and watchdog groups requested his task force's records, Cheney successfully fought a court battle to keep them secret, arguing that presidents needed greater power to solicit candid advice. The decision gutted the Federal Advisory Committee Act, a 1972 law in which Congress tried to require such policymaking to be subject to public scrutiny.

After the attacks of Sept. 11, 2001, military lawyers objected to the administration's assertion that a president has the power to detain and interrogate terrorism suspects outside the restrictions of the Geneva Conventions. In response, the administration renewed Cheney's attempt to put military lawyers under the control of civilian appointees.

Citing a need for secrecy, the administration also erected new roadblocks to Freedom of Information Act requests, restricted access to historic presidential records, and threatened to prosecute journalists who published classified information using the 1917 anti-spying law -- the same idea Cheney toyed with in 1975.

In signing statements and legal memos, the administration, with Cheney and Addington as its driving force, has repeatedly used the war on terrorism to advance the idea that the president has vast "inherent" authority to bypass laws enacted by Congress. Even when Congress voted, a week after the 9/11 attacks, to authorize the use of military force against Al Qaeda, the administration quickly seized the moment to lay down its marker.

"[Congress cannot] place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response," the Justice Department asserted in a September 2001 memo solicited by the White House. "These decisions, under our Constitution, are for the president alone to make."

The following year, the administration drew up secret legal opinions informing military and CIA interrogators that the president has the power to authorize them to violate laws banning torture.

"In order to respect the president's inherent constitutional authority to manage a military campaign against Al Qaeda and its allies, [the anti-torture law] must be construed as not applying to interrogations undertaken pursuant to his commander-in-chief authority," said an August 2002 memo, which was leaked to the media only after the abuse of Iraqi prisoners at Abu Ghraib came to light.

Then, in December 2005, The New York Times revealed that the administration was wiretapping Americans' international phone calls and e-mails without warrants, violating the 1978 surveillance law.

Three days later, Cheney sat down with reporters and laid out his belief "in a strong, robust executive authority." Bypassing the warrant law, he asserted, was "consistent with the constitutional authority of the president."

Cheney also indicated that he hopes to establish further precedents for the expansion of presidential authority. Listing other statutory constraints on presidential power, he said they "will be tested at some point." When Cheney was asked whether he believed that the pendulum of executive power had swung back far enough in the direction he desired, or whether it needed to swing back further, he demurred.

"I do think that to some extent now, we've been able to restore the legitimate authority of the presidency," he replied.



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Treasury ordered to make bills recognizable to blind people

USA TODAY
Treasury ordered to make bills recognizable to blind people

WASHINGTON (AP) — The government discriminates against blind people by printing money that all looks and feels the same, a federal judge said Tuesday in a ruling that could change the face of American currency.

U.S. District Judge James Robertson ordered the Treasury Department to come up with ways for the blind to tell bills apart. He said he wouldn't tell officials how to fix the problem, but he ordered them to begin working on it.

READ THE RULING: Judge's memorandum order

The American Council of the Blind has proposed several options, including printing bills of differing sizes, adding embossed dots or foil to the paper or using raised ink.

"Of the more than 180 countries that issue paper currency, only the United States prints bills that are identical in size and color in all their denominations," Robertson wrote. "More than 100 of the other issuers vary their bills in size according to denomination, and every other issuer includes at least some features that help the visually impaired."

Government attorneys argued that forcing the Treasury Department to change the size of the bills or add texture would make it harder to prevent counterfeiting. Robertson was not swayed.

"The fact that each of these features is currently used in other currencies suggests that, at least on the face of things, such accommodations are reasonable," he wrote.

He said the government was violating the Rehabilitation Act, which prohibits discrimination on the basis of disability in government programs. The opinion came after a four-year legal fight.

Electronic devices are available to help blind people differentiate between bills, but many complain that they are slow, expensive and unreliable. Visually impaired shoppers frequently rely on store clerks to help them.

"It's just frankly unfair that blind people should have to rely on the good faith of people they have never met in knowing whether they've been given the correct change," said Jeffrey A. Lovitky, attorney for the plaintiffs in the lawsuit.

Others have developed ways to cope with the similarly shaped bills. Melanie Brunson, a member of the American Council of the Blind, told the court that she folds her bills into different shapes: $1 bills stay straight, $5 bills are folded in half left to right, $10 bills in half top to bottom and $20 in quarters.

The Treasury Department had no comment on the ruling Tuesday. The government has 10 days to decide whether to appeal.

U.S. bills have not always been the same size. In 1929, the government standardized the size and shrank all bills by about 30% to lower manufacturing costs and help distinguish between genuine and counterfeit notes.

Since then, the Treasury Department has worked to stay ahead of counterfeiters. Security threads and microprinting were introduced in 1990. The portraits were enlarged in 1996, and an infrared feature was added to encourage the development of electronic readers for the blind.

The latest redesign is underway. New $10 bills, featuring splashes of orange, yellow and red, hit the market this year, following similar changes to the $20 bill in 2003 and the $50 bill in 2004. The $5 facelift is due in 2008.

In court documents, government attorneys said changing the way money feels would be expensive. Cost estimates ranged from $75 million in equipment upgrades and $9 million annual expenses for punching holes in bills to $178 million in one-time charges and $50 million annual expenses for printing bills of varying sizes.

Any change to the dollar's design could ripple into the vending machine industry, which participated in discussions regarding previous redesigns. The American Council of the Blind is not seeking changes to the $1 bill, according to court documents.

The Treasury Department spent $4.2 billion on printing over the past decade, Robertson said. Adding a raised number to the bills would have increased costs less than 5% over that period, he said.

"If additional savings could be gained by incorporating the new feature into a larger redesign, such as those that took place in 1996 or 2004, the total burden of adding such a feature would be even smaller," Robertson wrote.

Find this article at:
http://www.usatoday.com/news/washington/2006-11-28-currency_x.htm?csp=34





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The meaning of the term “obvious” might not be obvious

The New York Times
Prior Art, Teaching, Skill? It Must Be a Patent Case
By LINDA GREENHOUSE

WASHINGTON, Nov. 28 — To be eligible for a patent, an invention must be novel, useful and, according to the statute, not “obvious” to a person of “ordinary skill” in the field. While the meaning of the term “obvious” might appear to be obvious, a lively and surprisingly entertaining Supreme Court argument on Tuesday demonstrated that it is anything but.

The question was how patent examiners and judges should evaluate the obviousness of a new product that combines, albeit in a novel way, two or more existing products. Since most inventions use elements of what patent law calls “prior art,” this case presents the court with what is widely viewed as its most important patent case in years.

The patent in dispute is for an adjustable gas pedal, designed to work in vehicles equipped with electronic engine controls. In the past, gas pedals that could be adjusted for the driver’s comfort worked mechanically. The new version, produced by a Canadian company, the KSR International Company, under contract to General Motors, combined an adjustable pedal with an electronic sensor.

Claiming that it had already patented such a product, a rival company, Teleflex Inc., sued. KSR argued that Teleflex’s patent was invalid because the combination of the two elements was obvious. A federal district judge in Detroit agreed, and dismissed the infringement suit.

But the United States Court of Appeals for the Federal Circuit, which has jurisdiction over all patent appeals, overturned that decision. It ordered the district court to reconsider the case under a test that makes obviousness harder to prove — and therefore makes patents easier to obtain and defend. It is the validity of that test that is at issue in the case, KSR International Co. v. Teleflex Inc., No. 04-1350.

The Federal Circuit’s test for obviousness is usually referred to as the teaching-suggestion-motivation test. Under the test, a patent cannot be rejected as obvious unless the party challenging it can show that at the time of the invention, there existed a “teaching, suggestion, or motivation” that would have led a person familiar with the field to put existing products together. Meeting that test often requires a jury trial, making patent litigation prolonged and expensive.

James W. Dabney, the lawyer representing KSR, told the justices that the Federal Circuit had improperly displaced “skill and ingenuity” as the benchmark for obtaining a patent and replaced it with what amounted to an “entitlement” to patent protection. But the Supreme Court itself “has rejected time and time again the notion that someone who was the first simply to take advantage of the known capability of technology was entitled to a patent,” he added.

The federal Patent and Trademark Office agrees with the critique and entered the case on the side of KSR. Thomas G. Hungar, a deputy solicitor general, told the justices that “as the sole means of proving obviousness, the teaching-suggestion-motivation test is contrary to the Patent Act, irreconcilable with this court’s precedents, and bad policy.”

Mr. Hungar added, “It asks the wrong question and, in cases like this one, it produces the wrong answer.”

But as Chief Justice John G. Roberts Jr. pointed out, the Federal Circuit had a rationale for adding its distinctive gloss to the concept of obviousness. “They say obviousness is deceptive in hindsight,” the chief justice observed to Mr. Dabney. “In hindsight, everybody says, ‘I could have thought of that,’ ” he said, adding that in the Federal Circuit’s view, “if you don’t have the sort of constraint that their test imposes, it’s going to be too easy to say that everything was obvious.”

The chief justice’s comment came early in the argument; any implication that he was sympathetic to the appeals court proved premature. When it came time for the lawyer for Teleflex, Thomas C. Goldstein, to take the podium, Chief Justice Roberts made clear his disdain for the Federal Circuit’s approach.

The test “adds a layer of Federal Circuit jargon that lawyers can then bandy back and forth,” he said, adding, “It seems to me that it’s worse than meaningless because it complicates the inquiry rather than focusing on the statute.”

When Mr. Goldstein noted that “every single major patent bar association in the country has filed on our side,” the chief justice interjected: “Well, which way does that cut? That just indicates that this is profitable for the patent bar.” And when Mr. Goldstein referred to experts who had testified that the Teleflex patent was not obvious, the chief justice asked: “Who do you get to be an expert to tell you something’s not obvious? I mean, the least insightful person you can find?”

Chief Justice Roberts made the comments with a smile, and the courtroom audience responded with laughter. Mr. Goldstein, an experienced Supreme Court advocate, was unfazed at finding himself the straight man in a courtroom comedy. He kept returning to his theme, which was that the Federal Circuit’s test, properly understood, served the function of focusing the inquiry.

“Invention isn’t at the end when you put the two things together,” Mr. Goldstein said. “Invention is finding the problem, deciding what pieces of the prior art to use, and deciding how to put them together.” He warned that there would be “genuine, dramatic instability” if the court disavowed the approach the Federal Circuit has used nearly since its creation in 1982.

Congress created the centralized court for the purpose of reducing instability in the patent system. Underlying the legal arguments was the deeper question of how patent law has fared in the court’s hands — whether, as Justice Stephen G. Breyer put it, “they’ve leaned too far in the direction of never seeing a patent they didn’t like.” There was, Justice Breyer said, “a huge argument going on.” With that observation, Mr. Goldstein readily agreed.





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Tuesday, November 28, 2006

Supreme Court to decide what makes an antitrust case

USA TODAY
Supreme Court to decide what makes an antitrust case

WASHINGTON (AP) — The Supreme Court pressed both sides Monday in the opening arguments of a case that businesses of all stripes care deeply about: how hard should it be to get evidence that a company might be violating antitrust laws?

The case, Bell Atlantic v. Twombly, stems from the deregulation of the telecommunications industry in the 1980s and 1990s, with some experts citing it as the most important antitrust case to reach the Supreme Court in 20 years.

The case is being closely watched by numerous companies, including airlines, credit card issuers and trade associations representing the wireless communications and pharmaceutical industries, all of whom have submitted or signed onto friend-of-the-court briefs.

The plaintiff in this case is represented by Milberg Weiss, known for its class-action lawsuits alleging securities fraud against major corporations. The firm filed a lawsuit in 2003 on behalf of William Twombly and all individuals in the continental United States who bought local telephone and Internet service between February 1996 and the present.

The suit alleged that the incumbent local telephone companies, or regional Bells, illegally conspired to prevent competition by excluding new local phone companies from their territories and agreeing not to compete against each other in each other's markets.

As part of the original court-ordered breakup of AT&T in 1982, seven regional telephone companies were created to provide local service. The 1996 Telecommunications Act allowed those regional Bells to offer long-distance calling, in addition to local service, in exchange for allowing competitors access to their networks.

The original seven incumbent local phone companies have been reduced to four through mergers and acquisitions: Verizon Communications (VZ), which was formed by the merger of Bell Atlantic and GTE in 2000; BellSouth (BLS); Qwest Communications International (Q), which bought Pacific Bell; and AT&T (T), which was bought by local phone provider SBC Communications. AT&T has also offered to buy BellSouth, but that deal has not been approved.

A federal district court dismissed Twombly's case, finding that Twombly did not allege sufficient facts to indicate that a conspiracy would likely be proven during a trial. But Twombly argued that a conspiracy could be inferred from the so-called "parallel conduct," or behavior, of the defendants.

The Second Circuit Court of Appeals reversed the district court, however, finding in October 2005 that a plaintiff must submit only a "short and plain statement of the claim" and not a detailed set of facts in order to survive a motion to dismiss.

The regional Bells appealed to the Supreme Court. A low standard, corporations say, would enable "meritless" and "abusive" cases to go forward, forcing many businesses to settle those cases rather than endure the expense of litigation, including the discovery process in which defendants must produce documentation of certain facts for the plaintiff.

Under the standard upheld by the appeals court, "you can go sue half the firms in the economy," Justice Stephen Breyer said Monday.

A higher standard, however, could make it too difficult for individuals to bring valid antitrust cases, Twombly argued, because the only way a plaintiff can get evidence of an agreement among companies to restrict competition is through the discovery process.

If antitrust cases are dismissed too quickly, evidence of such agreements will rarely end up in the hands of plaintiffs, Twombly argued.

Twombly's attorney also said that the telephone companies' refusal to compete against each in each other's territories went against their economic self-interest, which could imply a conspiracy.

Justice John Paul Stevens pressed Michael Kellogg, the attorney arguing the case for the phone companies, on why such allegations were not sufficient for the case to continue.

"How you can say this is not a statement of fact I find mind-boggling," Stevens said.


Find this article at:
http://www.usatoday.com/money/industries/telecom/2006-11-27-scotus-antitrust_x.htm?csp=34




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Gates may take Pentagon job in December

USA TODAY
Gates may take Pentagon job in December

WASHINGTON (AP) — Robert Gates, the former CIA director who is President Bush's choice to replace Donald Rumsfeld as defense secretary, is likely to assume the Pentagon post before year's end if he is confirmed by the Senate as expected, officials said Monday.

Eric Ruff, the Pentagon press secretary, said Gates will have his confirmation hearing before the Senate Armed Services Committee early next week, with a vote expected by the full Senate by Dec. 12 or 13. In preparation for the hearing, Gates is receiving a series of briefings by senior Pentagon officials, Ruff said.

Even if Gates is confirmed as expected, it is unclear when he would be sworn in to his new duties, Ruff said.

"It's somewhat of a fluid situation," he said.

Another administration official, who would discuss the Gates matter only on condition of anonymity, said that if confirmation goes as expected, then Gates would be sworn in well before the end of the year. No date is set.

Bush announced Rumsfeld's resignation and Gates' nomination on Nov. 8, the day after congressional elections that put the Democrats in control of both the Senate and the House. Bush faces heavy political pressure to find a way forward in Iraq; he said he chose Gates in hopes of gaining fresh ideas about war strategy.

Bush is scheduled to meet with Iraqi Prime Minister Nouri al-Maliki this week in Amman, Jordan, amid continuing violence, political turmoil and fear of civil war in Iraq. The president also awaits recommendations on possible new approaches to stabilizing the country from the bi-partisan Iraq Study Group.

Ruff said Gates, who is president of Texas A&M University, may have university business to attend to in the days following his confirmation hearing, but it was unclear whether this would delay his swearing in.

There has been speculation that the Pentagon transition would be put off until the end of December in order to give Rumsfeld the distinction of being the longest-serving secretary of defense since the post was created in 1947.

Rumsfeld is the only person to have held the job twice. The first time, he served for 14 months, from Nov. 20, 1975 to Jan. 20, 1977. His current tenure began Jan. 20, 2001. If he were to stay until Dec. 28, his combined tenures would surpass the longevity record held by Robert S. McNamara, who served from Jan. 21, 1961 to Feb. 29, 1968.

Ruff said, however, that the timing of Gates' takeover has nothing to do with the longevity record.

"I can assure you that is not a factor on the secretary's mind," Ruff said.

Find this article at:
http://www.usatoday.com/news/washington/2006-11-27-gates-rumsfeld_x.htm?csp=34





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Justice Official Opens Spying Inquiry

The New York Times
Justice Official Opens Spying Inquiry
By ERIC LICHTBLAU

WASHINGTON, Nov. 27 — After months of pressure from Congressional Democrats, the Justice Department’s inspector general said Monday that his office had opened a full review into the department’s role in President Bush’s domestic eavesdropping program and the legal requirements governing the program.

Democrats said they saw the investigation as a welcome step that could answer questions about the operations and legal underpinnings of the program, which allows the National Security Agency to monitor, without obtaining court warrants, the international communications of Americans and others inside this country with suspected terrorist ties.

“This is a long overdue investigation of a highly controversial program,” said Representative John Conyers Jr., the Michigan Democrat who will take over as chairman of the House Judiciary Committee.

Last December, more than three dozen Democrats called for the Justice Department inspector general, Glenn A. Fine, to open an investigation.

Mr. Fine declined at the time, saying a review of the program’s legality fell outside his jurisdiction. He referred the matter to another arm of the Justice Department, the Office of Professional Responsibility. That office sought to examine ethical issues surrounding the roles played by Justice Department lawyers in the eavesdropping program. But its review was blocked this year when Mr. Bush personally refused security clearances for its investigators.

Democrats have since renewed their calls for a full Justice Department investigation, accusing the Bush administration of stonewalling. On Monday, Mr. Fine informed members of Congress in a letter that he was opening an investigation after the White House had agreed to approve the necessary security clearances for members of his staff.

The review will have a somewhat different scope than the investigation sought and rejected last year. The review, Mr. Fine said in his letter, will examine the controls in place at the Justice Department for the eavesdropping, the way information developed from it was used, and the department’s “compliance with legal requirements governing the program.”

Officials said the investigation could examine the legal authority given to the Justice Department under a secret executive order first signed by Mr. Bush in October 2001, as well as the laws and procedures governing intelligence wiretaps under the Foreign Intelligence Surveillance Act, which was approved by Congress in 1978 after the Watergate scandal and required a special court warrant for wiretaps on Americans. The review could also look at how intelligence generated by the eavesdropping was used to seek traditional court warrants and to pursue criminal cases, the officials said.

An official with the inspector general’s office, who spoke on condition of anonymity, said the office’s position had not changed since it declined to review the program in January. “It was beyond our jurisdiction, and it still is beyond our jurisdiction, to review the legality or the constitutionality of the program, and that’s not what we’re doing here,” the official said.

Congressional Democrats said they were eager to see what areas the inspector general would decide to review. Mr. Fine has a reputation as a strong and independent watchdog within the Justice Department, and he has issued a number of highly critical reports about the department’s policies and practices since the terrorism attacks of Sept. 11, 2001. Still, several Democrats suggested that the timing of his review might be tied to their takeover of Congress in this month’s midterm elections as a way to pre-empt expected Democratic investigations of the N.S.A. program.

“It’s hard to ignore the fact that there is a correlation in the timing,” said Representative Zoe Lofgren, a California Democrat who helped lead the push for a Justice Department investigation.

“I don’t know why the White House would stonewall for a year, then within a month of the election, agree to these security clearances” for the inspector general’s staff, Ms. Lofgren said in an interview. “We don’t know what it means, but we’ll find out.”

Mr. Fine said in his letter to members of Congress that he decided to open his investigation after “conducting initial inquiries” into the eavesdropping operation. That initial inquiry was limited to Mr. Fine and two other supervisors in his office who had security clearance to review the program, but it will now be widened to include investigators and staff members, officials said.

The Justice Department said it welcomed the inspector general’s investigation. “We expect that this review will assist Justice Department personnel in ensuring that the department’s activities comply with the legal requirements that govern the operation of the program,” said Brian Roehrkasse, a department spokesman.

The administration has strongly defended the legality of the eavesdropping program, but a federal judge in Detroit ruled in August that the program was illegal and unconstitutional. The Bush administration is now appealing that decision.





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High Court Rules Against New York Times

CBSNews.com
High Court Rules Against New York Times

WASHINGTON, Nov. 27, 2006(CBS/AP) The Supreme Court ruled against The New York Times on Monday, refusing to block the government from reviewing telephone records of two Times reporters in a leak investigation concerning a terrorism-funding probe.

The one-sentence order came in a First Amendment battle that involves stories written in 2001 by Times reporters Judith Miller and Philip Shenon. The stories revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

U.S. Attorney Patrick Fitzgerald is trying to track down the reporters' confidential sources for the stories. Fitzgerald's spokesman, Randall Samborn, declined to comment on the Supreme Court's order.

The case marks the second refusal by the court in as many years to sort out a clash between the federal government and the Times over press freedom.

In June 2005, the Supreme Court refused to take up the Times' request to hear an appeal in the CIA leak investigation involving the outing of Valerie Plame. In that case, Miller, who retired from the Times a year ago, spent 85 days in jail before agreeing to testify before a federal grand jury. Fitzgerald, in a role as a special counsel, conducted that leak investigation as well.

Monday's rejection "is just further indication that we're getting absolutely nowhere with the court when it comes to protecting confidential sources," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The case points out a growing problem of reporters trying to protect their sources in the information age, press advocates say. Rather than threatening reporters with jail if they don't testify, the government can go through the back door to hunt down confidential sources by amassing phone records and credit-card receipts.

"It's impossible to operate on cash only and face-to-face and do your job as journalists," said University of Minnesota media ethics and law professor Jane E. Kirtley.

Dalglish said protection of phone record confidentiality is among the issues that should be addressed in federal shield law legislation she and other media advocates are urging Congress to consider.

In other cases:

# The Supreme Court pressed both sides in the opening arguments of a case that businesses of all stripes care deeply about: how hard should it be to get evidence that a company might be violating antitrust laws? The case, Bell Atlantic v. Twombly, stems from the deregulation of the telecommunications industry in the 1980s and 1990s, with some experts citing it as the most important antitrust case to reach the Supreme Court in 20 years. The case is being closely watched by numerous companies, including airlines, credit-card issuers and trade associations representing the wireless communications and pharmaceutical industries, all of whom have submitted or signed onto friend-of-the-court briefs.

# The court decided not to plunge into the issue of school choice, passing up a dispute over a Maine law that bars the use of public funds to send students to private religious schools. A conservative group, the Institute for Justice, had asked the justices to take the case. The group is representing eight Maine families who would receive public tuition funds but for the fact that their children attend religious schools.

# The court also let stand a ruling that dismissed a $10.1 billion verdict against Philip Morris USA, ending a case that became a windfall for the county where it originated but helped feed its reputation as a "judicial hellhole." In its order Monday, the high court upheld without comment last year's Illinois Supreme Court ruling throwing out the massive fraud judgment against Philip Morris USA, a unit of New York-based Altria Group Inc., in a class-action lawsuit involving "light" cigarettes.

# The Supreme Court hears arguments this week in a case that could determine whether the Bush administration must change course in how it deals with the threat of global warming. A dozen states as well as environmental groups and large cities are trying to convince the court that the Environmental Protection Agency must regulate, as a matter of public health, the amount of carbon dioxide that comes from vehicles.

Floyd Abrams, a lawyer for the Times, said the current case is part of a larger dispute over the public's right to information.

"We remain hopeful that in the end, whether in the courts or in Congress, that right will be vindicated," Abrams said.

The current dispute stems from Shenon and Miller calling the two charities for comment after learning of the planned freeze on their assets from confidential sources.

The Justice Department says the reporters' calls tipped off the charities of upcoming government raids. A federal judge who ruled in the Times' favor said there is no evidence in the case even suggesting that the reporters tipped off the charities about the raids or that the reporters even knew the government would raid either charity.

In August, the 2nd U.S. Circuit Court of Appeals ruled 2-1 that federal prosecutors could see the two reporters' phone records.

The government says the fact that the reporters relayed disclosures from a government source to "targets of an imminent law enforcement action substantially weakens any claim of freedom of the press."

At issue are 11 days of phone records the government plans to review from 2001 — for the dates Sept. 27-30, Dec. 1-3 and Dec. 10-13. In a declaration this month, Fitzgerald said the statute of limitations "on certain substantive offenses that the grand jury is investigating" will expire on Dec. 3 and Dec. 13 of this year.

The current leak probe is in Fitzgerald's capacity as U.S. Attorney in Chicago. The Libby prosecution is in Fitzgerald's role as a special counsel who was selected by a Justice Department superior to conduct that investigation.




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It's Wrong to Censor O.J.

Huffington Post
Jeff Norman
It's Wrong to Censor O.J.

When news broke on June 12, 1994 that Ron Goldman and Nicole Brown Simpson had just been killed in the Brentwood section of Los Angeles, countless media organizations began to cover this double-murder relentlessly. Although the reportage has since become less ubiquitous, it never completely stopped, even though much of the attention has probably been very upsetting to the next of kin.

So nobody should believe News Corp. chairman Rupert Murdoch's claim that it was out of respect for the Brown and Goldman families he squashed "If I Did It," the television/book combo which was to have been marketed as O.J. Simpson's confession. The notorious mogul reversed his plans only to remedy a public relations crisis, and because he realized a flight of sponsors and affiliates would financially impair his Fox Broadcasting Company if Judith Regan's interview with Simpson were to air. Murdoch's decision, a shrewd response to a barrage of shallow complaints by influential elitists, indicates no new trend toward excellence in journalism.

It would be nice if the masses weren't so obsessed with O.J. and his worldview, but those who crave constant Juice shouldn't be deprived of their fix simply because the dictators of decency are offended. Yes, Fred Goldman and Denise Brown endured a terrible tragedy. No, their grief does not entitle them to be gatekeepers of public information. Likewise, celebrity commentators who for years profited from this ongoing soap opera, possess no moral authority to shriek in indignation over a book based on the leading man's perspective. Nonetheless, now that he has entered their field, pundits who gladly accept generous wages for producing sordid infotainment and sensationalism, are openly conspiring to deny Simpson a livelihood, as if he is beneath them, and they are official stewards of an honorable profession. What could be more unctuous than Geraldo Rivera, who conducted an infamous TV interview with convicted murderer Charles Manson, calling for O.J. to be silenced in the name of good taste?

Like it or not, O.J. Simpson was acquitted of murder charges. The judgment in a subsequent civil lawsuit obligates him to pay $33.5 million to the Brown and Goldman families, but it does not authorize anyone to blacklist the famous defendant or suppress his speech. Even so, self-appointed arbiters of propriety have managed to severely restrict Simpson's mass communication options, citing his receipt or potential receipt of cash as the factor that somehow distinguishes "If I Did It" from lowbrow material deemed acceptable. Of course the financial terms of O.J.'s book deal are mostly unknown, but vague rumors about an unusual payment scheme are enough for disparagers to insist this project is where the line should be drawn.

Those who now advocate blocking Simpson's revenue source haven't bothered to articulate a standard that could be applied to other situations. Without revealing how the former star might be eligible for income, detractors have announced only their disapproval of him making money from one particular book most of them haven't read. Apparently, these vigilantes are holding him accountable for breaking a rule, but it's not clear what the rule is, or what Simpson needs to do to be in compliance. May he receive funds for labor performed under some circumstances? May he discuss his criminal and civil trials in any way? For whom may he work?

The stifling of "If I Did It" is nothing to cheer. No matter how much the relatives of murder victims engender sympathy, it is not the role of media professionals to censor or otherwise punish O.J. Simpson, especially when the cognoscenti aren't even forthright about the code of conduct they wish to enforce.


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Senior Rice aide, Philip Zelikow resigns from post

Reuters
Senior Rice aide, Philip Zelikow resigns from post
By Sue Pleming

WASHINGTON (Reuters) - Philip Zelikow, one of U.S. Secretary of State Condoleezza Rice's closest advisers on Iraq and the Middle East, will quit his post to return to university teaching, a State Department official said on Monday.

In his resignation letter to Rice which was made available to Reuters, Zelikow said "family and professional concerns" led to his decision to return to the University of Virginia next year.

Zelikow, who was counselor to Rice and had an office down the hall from the top U.S. diplomat, was involved in many of the major issues facing the United States and also acted as a trouble-shooter for Rice.

He spent months examining U.S. policy toward Iraq and the reconstruction effort, saying in a confidential memorandum after a visit to Iraq that it had the potential to be a "catastrophic failure," according to the recent book "State of Denial" by Washington Post editor Bob Woodward.

In addition to Iraq and the Middle East, Zelikow also helped craft U.S. policy on terrorism suspects held without trial at Guantanamo Bay and elsewhere.

"To an extent that few can appreciate, you have given me an extraordinary opportunity to contribute what I could on many matters of high importance," said Zelikow in the letter.

But that contribution was not without its controversy.

In September, Zelikow caused some ripples in the Bush administration when he suggested during a speech at the Washington Institute for Near East Policy that to build a coalition for dealing with Iran, the United States needed to make progress on solving the Arab-Israeli dispute.

"For the Arab moderates and for the Europeans, some sense of progress and momentum on the Arab-Israeli dispute is just a sine qua non for their ability to cooperate actively with the United States on a lot of other things that we care about," he said in the speech.

The Bush administration sought afterward to reassure the Israelis that there had not been a change in policy.

Asked whether his speech had contributed to the decision to leave on January 2, a State Department official said this was not the case. "This is one of those rare cases in Washington where someone is leaving on their own terms," said the official.

Before joining Rice's staff last year, Zelikow was director of the University of Virginia's Miller Center of Public Affairs. He was also executive director of the commission investigating the September 11 attacks against the United States.




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Justice Department eyes spy program

Yahoo! News
Justice Department eyes spy program
By LARA JAKES JORDAN, Associated Press Writer

The Justice Department has begun an internal investigation into its handling of information gathered in the government's domestic spying program. However, Democrats criticized the review as too narrow to determine whether the program violated federal law.

The inquiry by Glenn A. Fine, the department's inspector general, will focus on the role of Justice prosecutors and agents in carrying out the warrantless surveillance program run by the National Security Agency.

Fine's investigation is not expected to address whether the controversial program is an unconstitutional expansion of presidential power, as its critics and a federal judge in Detroit have charged.

"After conducting initial inquiries into the program, we have decided to open a program review that will examine the department's controls and use of information related to the program," Fine wrote in a letter dated Monday to House Judiciary Committee leaders. The four-paragraph letter was obtained by The Associated Press.

Justice Department spokesman Brian Roehrkasse said the agency welcomes the review: "We expect that this review will assist Justice Department personnel in ensuring that the department's activities comply with the legal requirements that govern the operation of the program."

In January, Fine's office rejected a request by more than three dozen Democrats to investigate the secret program, which monitors phone calls and e-mails between people in the U.S. and abroad when a link to terrorism is suspected.

Fine's letter outlining his review was welcomed by congressional Democrats. At the same time, they said it falls short of examining issues at the heart of the debate — how the spying program evolved, and whether its creation violated any laws.

"A full investigation into the program as a whole, not just the DOJ's involvement, will be necessary," said Rep. Zoe Lofgren (news, bio, voting record), D-Calif.

The review could include whether the spying program complies with the Foreign Intelligence Surveillance Act, which requires judicial authorization for electronic surveillance and physical searches of people suspected of espionage or international terrorism on behalf of a foreign power. The Justice Department requests surveillance approval from the FISA court.

Democrats also questioned the timing of the review. Fine's letter noted that his office asked the White House on Oct. 20 for additional security clearances that were approved just last week — following the Nov. 7 elections that gave Democrats control of Congress.

Noting Democrats' renewed power to subpoena Bush administration officials next year, Rep. Maurice Hinchey (news, bio, voting record), D-N.Y., questioned that Fine's investigation "is only coming now after the election as an attempt to appease Democrats" who have been critical of the NSA program.

The letter was sent to House Judiciary Chairman James Sensenbrenner, R-Wis., and the panel's top Democrat and incoming chairman, Rep. John Conyers (news, bio, voting record), D-Mich. Sensenbrenner had no comment. Conyers called the review "a long overdue investigation of a highly controversial program."

The Justice Department has called the program a necessary tool in the fight against terrorism, and Attorney General Alberto Gonzales is pushing congressional Republicans to authorize it by law before they cede power at the year's end — a prospect with at best a slim shot of approval.

Former Reagan administration national security official Robert F. Turner, now associate director at the Center for National Security Law at the University of Virginia, said congressional demands for sensitive information about the program puts them at odds with long-standing presidential powers over the collection of foreign intelligence.

"It's good that the executive branch, on its own, is making sure that someone's not abusing this power," Turner said. "But when Congress usurps power vested in the president by the people through the Constitution, then it becomes the lawbreaker."

Countering, Caroline Fredrickson, the director of the ACLU's office in Washington, urged Fine "to seek the hidden truth about this program. ... No one, not even the president, is above the law."

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On the Net:

Justice Department: http://www.usdoj.gov/




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