Sunday, June 24, 2007

U.S., Critic of N. Korea Payments, Also Sends Millions

washingtonpost.com
U.S., Critic of N. Korea Payments, Also Sends Millions
By Colum Lynch
Washington Post Staff Writer

UNITED NATIONS -- Over the past six months, the Bush administration has repeatedly criticized the U.N. Development Program for channeling millions of dollars in hard currency into North Korea to finance the agency's programs, warning that the money might be diverted to Pyongyang's nuclear weapons program.

But the United States also has funneled dollars to Kim Jong Il's regime over the past decade, financing travel for North Korean diplomats and paying more than $20 million in cash for the remains of 229 U.S. soldiers from the Korean War. And in a bid to advance nuclear talks, the Bush administration recently transferred back to North Korea about $25 million in cash that the Treasury Department had frozen at Banco Delta Asia, a Macao-based bank that the United States had accused of laundering counterfeit U.S. currency on behalf of North Korea.

Such transactions emphasize philosophical differences in the administration over the wisdom of engaging with North Korea and highlight the compromises that the United States, the United Nations and others face in dealing with Pyongyang.

"The U.S. has no moral high ground," said Michael Green, a former special assistant to President Bush who served as senior director for Asian affairs in the National Security Council. "In terms of bribing Kim Jong Il, UNDP is a minor offender."

North Korea's regime has skillfully extracted hundreds of millions of dollars in bribes from foreign companies and governments, and has persuaded South Korea and China to supply billions of dollars' worth of food and fuel with virtually no oversight. South Korea reportedly paid hundreds of millions to bribe the North Korean leader to attend a 2000 summit, and China agreed in 2005 to build a $50 million glass factory for North Korea in exchange for its participation in six-nation nuclear talks.

Such payments are "part and parcel of doing business in North Korea," said L. Gordon Flake, executive director of the Mansfield Foundation, a nonprofit organization that promotes U.S. relations with Asian countries.

Since 1995, the United States has provided the North Korean regime with more than $1 billion worth of food and fuel in the hopes of forestalling famine -- and of restraining Kim's nuclear ambitions. In an effort to promote diplomatic contacts between the two countries, the Energy Department has channeled money to U.S. nonprofit agencies and universities, including a $1 million grant to the Atlantic Council to cover travel costs for informal talks between U.S. and North Korean diplomats.

U.S. military officials routinely traveled to North Korea's demilitarized zone between 1996 and 2005 to give cash to North Korean army officers for the recovery of the remains of 229 of the more than 7,000 U.S. troops missing in North Korea since the Korean War. "There was a painstaking transfer process: cold, hard cash, counted carefully, turned over carefully," said Larry Greer, spokesman for the Pentagon's Prisoner of War/Missing Personnel Office.

Greer insisted that the payments, which covered labor, material and other expenses, were in line with recovery operations in other parts of the world. But he and other officials said North Korea frequently tried to inflate the costs and once requested that the U.S. military build a baby-clothing factory. The United States demurred, he said.

The Bush administration dramatically scaled back U.S. assistance to North Korea in 2002, but it continued to finance the effort to recover remains of Korean War veterans until 2005, when the U.S. military said it could no longer ensure the safety of U.S. recovery teams. Between 2002 and 2005, the United States flew a seven-member North Korean team, at a cost of $25,000 a year, to Bangkok for discussions about future recovery missions, according to the Congressional Research Service.

"It's pretty close to a ransom of remains," said James A. Kelly, U.S. assistant secretary of state for East Asian and Pacific affairs, adding he had little confidence that Washington could account for how the money was spent. "I personally didn't like it, but I didn't feel it was enough to get into a big squabble with the veterans organizations that felt strongly about it."

Mark D. Wallace, the U.S. representative to the United Nations for administration and reform, lambasted the U.N. Development Program earlier this year for engaging in similar practices. For instance, he faulted the UNDP for flying a North Korean official in business class to New York at a cost of $12,000 to attend a meeting of the U.N. agency's board of directors.

His complaints triggered a preliminary U.N. audit this month that confirmed that the UNDP had failed to abide by its rules by hiring workers handpicked by the North Korean government and paying them in foreign currency.

The UNDP operated for years "in blatant violation of U.N. rules [and] served as a steady and large source of hard currency" for the North Korean government, Wallace said. The UNDP's efforts, he added, have been "systematically perverted for the benefit of the Kim Jong Il regime, rather than the people of North Korea."

The controversy led the UNDP to suspend its North Korean operations in March after the government refused to allow it to independently hire staff members. The World Food Program and the U.N. Children's Fund -- which also pay government-supplied workers in foreign currency -- remain active in North Korea.

Wallace has expanded his inquiry, alleging in congressional briefings that North Korea diverted nearly $3 million in UNDP cash to purchase real estate in France, Britain and Canada. He also contended that the UNDP received tens of thousands of dollars in counterfeit U.S. currency and imported sensitive "dual use" equipment into North Korea that could be used for a weapons program. The United States claims to possess internal UNDP documents to back up the claims but has refused to turn them over.

UNDP spokesman David Morrison said that the allegations "don't seem to add up" and that the United States has not substantiated its assertions. He said the agency can account for the $2 million to $3 million it spends each year on its North Korea programs. UNDP officials said the dual-use equipment -- which included Global Positioning System devices and a portable Tristan 5 spectrometer available on eBay for $5,100 -- was part of a weather forecasting system for flood- and drought-prone regions.

"We have been subject to all manner of wild allegations about wide-scale funding diversion," Morrison said.

U.S. officials said there is no link between criticism of the UNDP and U.S. efforts to restrain North Korean nuclear ambitions. "If I were a conspiracy theorist, I would think that way, but there is really no connection," said a senior U.S. official who tracks the issue.

Staff writer Glenn Kessler contributed to this report.


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Judge appointed by Ronald Reagan Criticizes Bush/Cheney Wiretap Program

The New York Times
Judge Criticizes Wiretap Program
By THE ASSOCIATED PRESS

WASHINGTON, June 23 (AP) — A federal judge who used to authorize wiretaps in terrorist and espionage cases on Saturday criticized President Bush’s decision to order warrantless surveillance after the Sept. 11 attacks.

The judge, Royce C. Lamberth of federal district court in Washington, said it was proper for executive branch agencies to conduct such surveillances. “But what we have found in the history of our country is that you can’t trust the executive,” he said at a convention of the American Library Association.

Judge Lamberth, who was appointed by President Ronald Reagan, disagreed with letting the executive branch alone decide which people to spy on in security cases.

“The executive has to fight and win the war at all costs,” he said. “But judges understand the war has to be fought, but it can’t be at all costs.” He added: “We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive.”

Judge Lamberth was named chief of the Foreign Intelligence Surveillance Court in 1995 by Chief Justice William H. Rehnquist. He held that post until 2002.

The court meets in secret to review applications from the F.B.I., the National Security Agency and other agencies for warrants to wiretap or search the homes of people in the United States in terrorist or espionage cases.

A White House spokesman, Tony Fratto, said Mr. Bush believed in the program, which is classified because its purpose is to stop terrorists’ planning.

The program “is lawful, limited, safeguarded and — most importantly — effective in protecting American citizens from terrorist attacks,” Mr. Fratto said. “It’s specifically designed to be effective without infringing Americans’ civil liberties.”



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"The Vice President has a choice to make. If he believes his legal case, his office has no business being funded as part of the executive branch."

eschaton
Washington, D.C. House Democratic Caucus Chairman Rahm Emanuel
issued the following statement regarding his amendment to cut funding
for the Office of the Vice President from the bill that funds the
executive branch. The legislation -- the Financial Services and General
Government Appropriations bill -- will be considered on the floor of
the House of Representatives next week.

"The Vice President has a choice to make. If he believes his legal
case, his office has no business being funded as part of the executive
branch.

However, if he demands executive branch funding he cannot
ignore executive branch rules. At the very least, the Vice President
should be consistent. This amendment will ensure that the Vice
President's funding is consistent with his legal arguments. I have
worked closely with my colleagues on this amendment and will continue
to pursue this measure in the coming days."

Read More...

Cheney exerts influence out of public view; Vice president has shaped his times as no other has before

The Washington Post
WP: Cheney exerts influence out of public view
Vice president has shaped his times as no other has before
PART 1 OF 4
By Barton Gellman and Jo Becker

Just past the Oval Office, in the private dining room overlooking the South Lawn, Vice President Cheney joined President Bush at a round parquet table they shared once a week. Cheney brought a four-page text, written in strict secrecy by his lawyer. He carried it back out with him after lunch.

In less than an hour, the document traversed a West Wing circuit that gave its words the power of command. It changed hands four times, according to witnesses, with emphatic instructions to bypass staff review. When it returned to the Oval Office, in a blue portfolio embossed with the presidential seal, Bush pulled a felt-tip pen from his pocket and signed without sitting down. Almost no one else had seen the text.

Cheney's proposal had become a military order from the commander in chief. Foreign terrorism suspects held by the United States were stripped of access to any court -- civilian or military, domestic or foreign. They could be confined indefinitely without charges and would be tried, if at all, in closed "military commissions."

"What the hell just happened?" Secretary of State Colin L. Powell demanded, a witness said, when CNN announced the order that evening, Nov. 13, 2001. National security adviser Condoleezza Rice, incensed, sent an aide to find out. Even witnesses to the Oval Office signing said they did not know the vice president had played any part.

The episode was a defining moment in Cheney's tenure as the 46th vice president of the United States, a post the Constitution left all but devoid of formal authority. "Angler," as the Secret Service code-named him, has approached the levers of power obliquely, skirting orderly lines of debate he once enforced as chief of staff to President Gerald R. Ford. He has battled a bureaucracy he saw as hostile, using intimate knowledge of its terrain. He has empowered aides to fight above their rank, taking on roles reserved in other times for a White House counsel or national security adviser. And he has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert.

Over the past six years, Cheney has shaped his times as no vice president has before. This article begins a four-part series that explores his methods and impact, drawing on interviews with more than 200 men and women who worked for, with and in opposition to Cheney's office. Many of those interviewed recounted events that have not been made public until now, sharing notes,e-mails, personal calendars and other records of their interaction with Cheney and his senior staff. The vice president declined to be interviewed.

Two articles, today and tomorrow, recount Cheney's campaign to magnify presidential war-making authority, arguably his most important legacy. Articles to follow will describe a span of influence that extends far beyond his well-known interests in energy and national defense.

In roles that have gone largely undetected, Cheney has served as gatekeeper for Supreme Court nominees, referee of Cabinet turf disputes, arbiter of budget appeals, editor of tax proposals and regulator in chief of water flows in his native West. On some subjects, officials said, he has displayed a strong pragmatic streak. On others he has served as enforcer of ideological principle, come what may.

Cheney is not, by nearly every inside account, the shadow president of popular lore. Bush has set his own course, not always in directions Cheney preferred. The president seized the helm when his No. 2 steered toward trouble, as Bush did, in time, on military commissions. Their one-on-one relationship is opaque, a vital unknown in assessing Cheney's impact on events. The two men speak of it seldom, if ever, with others. But officials who see them together often, not all of them admirers of the vice president, detect a strong sense of mutual confidence that Cheney is serving Bush's aims.

The vice president's reputation and, some say, his influence, have suffered in the past year and a half. Cheney lost his closest aide, I. Lewis "Scooter" Libby, to a perjury conviction, and his onetime mentor, Donald H. Rumsfeld, in a Cabinet purge. A shooting accident in Texas, and increasing gaps between his rhetoric and events in Iraq, have exposed him to ridicule and approval ratings in the teens. Cheney expresses indifference, in public and private, to any verdict but history's, and those close to him say he means it.

Waxing or waning, Cheney holds his purchase on an unrivaled portfolio across the executive branch. Bush works most naturally, close observers said, at the level of broad objectives, broadly declared. Cheney, they said, inhabits an operational world in which means are matched with ends and some of the most important choices are made. When particulars rise to presidential notice, Cheney often steers the preparation of options and sits with Bush, in side-by-side wing chairs, as he is briefed.

Before the president casts the only vote that counts, the final words of counsel nearly always come from Cheney.

‘The go-to-guy on the Hill’
In his Park Avenue corner suite at Cerberus Global Investments, Dan Quayle recalled the moment he learned how much his old job had changed. Cheney had just taken the oath of office, and Quayle paid a visit to offer advice from one vice president to another.

"I said, 'Dick, you know, you're going to be doing a lot of this international traveling, you're going to be doing all this political fundraising . . . you'll be going to the funerals,' " Quayle said in an interview earlier this year. "I mean, this is what vice presidents do. I said, 'We've all done it.' "

Cheney "got that little smile," Quayle said, and replied, "I have a different understanding with the president."

"He had the understanding with President Bush that he would be -- I'm just going to use the word 'surrogate chief of staff,' " said Quayle, whose membership on the Defense Policy Board gave him regular occasion to see Cheney privately over the following four years.

Cheney, 66, grew up in Lincoln, Neb., and Casper, Wyo., acquiring a Westerner's passion for hunting and fishing but not for the Democratic politics of his parents. He wed his high school sweetheart, Lynne Vincent, beginning what friends describe as a lifelong love affair. Cheney flunked out of Yale but became a highly regarded PhD candidate in political science at the University of Wyoming -- avoiding the Vietnam War draft with five deferments along the way -- before abandoning the doctoral program and heading to Washington as a junior congressional aide.

He went on to build an unmatched Washington resume as White House chief of staff, House minority whip and secretary of defense. An aversion to political glad-handing and a series of chronic health problems, including four heart attacks, helped derail his presidential ambitions and shifted his focus to a lucrative stint as chairman of Halliburton, an oil services company. His controlled demeanor, ranging mainly from a tight-lipped gaze to the trademark half-smile, conceals what associates call an impish sense of humor and unusual kindness to subordinates.

Cheney's influence in the Bush administration is widely presumed but hard to illustrate. Many of the men and women who know him best said an explanation begins with the way he defined his role.

As the Bush administration prepared to take office, "I remember at the outset, during the transition, thinking, 'What do vice presidents do?' " said White House Chief of Staff Joshua B. Bolten, who was then the Bush team's policy director. Bolten joined Libby, his counterpart in Cheney's office, to compile a list of "portfolios we thought might be appropriate." Their models, Bolten said, were Quayle's Council on Competitiveness and Al Gore's National Partnership for Reinventing Government.

‘Every table and every meeting’
"The vice president didn't particularly warm to that," Bolten recalled dryly.

Cheney preferred, and Bush approved, a mandate that gave him access to "every table and every meeting," making his voice heard in "whatever area the vice president feels he wants to be active in," Bolten said.

Cheney has used that mandate with singular force of will. Other recent vice presidents have enjoyed a standing invitation to join the president at "policy time." But Cheney's interventions have also come in the president's absence, at Cabinet and sub-Cabinet levels where his predecessors were seldom seen. He found pressure points and changed the course of events by "reaching down," a phrase that recurs often in interviews with current and former aides.

Mary Matalin, who was counselor to the vice president until 2003 and remains an informal adviser, described Cheney's portfolio as "the iron issues" -- a list that, as she defined it, comprises most of the core concerns of every recent president. Cheney took on "the economic issues, the security issues . . . the energy issues" -- and the White House legislative agenda, Matalin said, because he became "the go-to guy on the Hill." Other close aides noted, as well, a major role for Cheney in nominations and appointments.

As constitutional understudy, with no direct authority in the executive branch, Cheney has often worked through surrogates. Many of them owed their jobs to him.

While lawyers fought over the 2000 Florida ballot recount, with the presidential election in the balance, Cheney was already populating a prospective Bush administration. Brian V. McCormack, then his 26-year-old personal aide, said Cheney worked three cellphones from the round kitchen table of his townhouse in McLean, "making up lists" of nominees beginning with the secretaries of state, defense and the Treasury.

"His focus was that we need to prepare for the event that [the recount] comes out in our favor, because we will have a limited time frame," McCormack recalled.

Close allies found positions as chief and deputy chief of the Office of Management and Budget, deputy national security adviser, undersecretary of state, and assistant or deputy assistant secretary in numerous Cabinet departments. Other loyalists -- including McCormack, who progressed to assignments in Iraq's occupation authority and then on Bush's staff -- turned up in less senior, but still significant, posts.

In the years that followed, crossing Cheney would cost some of the same officials their jobs. David Gribben, a friend from graduate school who became the vice president's chief of legislative affairs, said Cheney believes in the "educational use of power." Firing a disloyal or poorly performing official, he said, sometimes "sends a signal crisply." Cheney believes he is "using his authority to serve the American people, and he's obviously not afraid to be a rough opponent," Gribben said.

A prodigious appetite for work, officials said, prepares Cheney to shape the president's conversations with others. His Secret Service detail sometimes reports that he is awake and reading at 4:30 a.m. He receives a private intelligence briefing between 6:30 and 7 a.m., often identifying issues to be called to Bush's attention, and then sits in on the president's daily briefing an hour later. Aides said that Cheney insists on joining Bush by secure video link, no matter how many time zones divide them.

Stealth is among Cheney's most effective tools. Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."

Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs. His general counsel has asserted that "the vice presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch," and is therefore exempt from rules governing either. Cheney is refusing to observe an executive order on the handling of national security secrets, and he proposed to abolish a federal office that insisted on auditing his compliance.

In the usual business of interagency consultation, proposals and information flow into the vice president's office from around the government, but high-ranking White House officials said in interviews that almost nothing flows out. Close aides to Cheney describe a similar one-way valve inside the office, with information flowing up to the vice president but little or no reaction flowing down.

All those methods would be on clear display when the "war on terror" began for Cheney after eight months in office.

A ‘triumvirate’ and its leader
In a bunker beneath the East Wing of the White House, Cheney locked his eyes on CNN, chin resting on interlaced fingers. He was about to watch, in real time, as thousands were killed on Sept. 11, 2001.

Previous accounts have described Cheney's adrenaline-charged evacuation to the Presidential Emergency Operations Center that morning, a Secret Service agent on each arm. They have not detailed his reaction, 22 minutes later, when the south tower of the World Trade Center collapsed.

"There was a groan in the room that I won't forget, ever," one witness said. "It seemed like one groan from everyone" -- among them Rice; her deputy, Stephen J. Hadley; economic adviser Lawrence B. Lindsey; counselor Matalin; Cheney's chief of staff, Libby; and the vice president's wife.

Cheney made no sound. "I remember turning my head and looking at the vice president, and his expression never changed," said the witness, reading from a notebook of observations written that day. Cheney closed his eyes against the image for one long, slow blink.

Three people who were present, not all of them admirers, said they saw no sign then or later of the profound psychological transformation that has often been imputed to Cheney. What they saw, they said, was extraordinary self-containment and a rapid shift of focus to the machinery of power. While others assessed casualties and the work of "first responders," Cheney began planning for a conflict that would call upon lawyers as often as soldiers and spies.

More than any one man in the months to come, Cheney freed Bush to fight the "war on terror" as he saw fit, animated by their shared belief that al-Qaeda's destruction would require what the vice president called "robust interrogation" to extract intelligence from captured suspects. With a small coterie of allies, Cheney supplied the rationale and political muscle to drive far-reaching legal changes through the White House, the Justice Department and the Pentagon.

The way he did it -- adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back -- turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush's successors.

Yet even as Bush was forced into public retreats, an examination of subsequent events suggests that Cheney has quietly held his ground. Most of his operational agenda, in practice if not in principle, remains in place.

In expanding presidential power, Cheney's foremost agent was David S. Addington, his formidable general counsel and legal adviser of many years. On the morning of Sept. 11, Addington was evacuated from the Eisenhower Executive Office Building next to the White House and began to make his way toward his Virginia home on foot. As he neared the Arlington Memorial Bridge, someone in the White House reached him with a message: Turn around. The vice president needs you.

Down in the bunker, according to a colleague with firsthand knowledge, Cheney and Addington began contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?

Before the day ended, Cheney's lawyer joined forces with Timothy E. Flanigan, the deputy White House counsel, linked by secure video from the Situation Room. Flanigan patched in John C. Yoo at the Justice Department's fourth-floor command center. White House counsel Alberto R. Gonzales joined later.

Thus formed the core legal team that Cheney oversaw, directly and indirectly, after the terrorist attacks.

Yoo, a Berkeley professor-turned-deputy chief of the Office of Legal Counsel, became the theorist of an insurrection against legal limits on the commander in chief. Addington, backed by Flanigan, found levers of government policy and wrote the words that moved them.

"Addington, Flanigan and Gonzales were really a triumvirate," recalled Bradford A. Berenson, then an associate White House counsel. Yoo, he said, "was a supporting player."

Gonzales, a former Texas judge, had the seniority and the relationship with Bush. But Addington -- a man of imposing demeanor, intellect and experience -- dominated the group. Gonzales "was not a law-of-war expert and didn't have very developed views," Yoo recalled, echoing blunter observations by the Texan's White House colleagues.

Cheney ‘has the portfolio’
Flanigan, with advice from Yoo, drafted the authorization for use of military force that Congress approved on Sept. 18. [Read the authorization document ] Yoo said they used the broadest possible language because "this war was so different, you can't predict what might come up."

In fact, the triumvirate knew very well what would come next: the interception -- without a warrant -- of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as "incident to" the authority Congress had just granted. Yoo was already working on that memo, completing it on Sept. 25.

It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object. Among the excluded was John B. Bellinger III, a man for whom Cheney's attorney had "open contempt," according to a senior government lawyer who saw them often. The eavesdropping program was directly within Bellinger's purview as ranking national security lawyer in the White House, reporting to Rice. Addington had no line responsibility. But he had Cheney's proxy, and more than once he accused Bellinger, to his face, of selling out presidential authority for good "public relations" or bureaucratic consensus.

Addington, who seldom speaks to reporters, declined to be interviewed.

"David is extremely principled and dedicated to doing what he feels is right, and can be a very tough customer when he perceives others as obstacles to achieving those goals," Berenson said. "But it's not personal in the sense that 'I don't like you.' It's all about the underlying principle."

Bryan Cunningham, Bellinger's former deputy, said: "Bellinger didn't know. That was a mistake." Cunningham said Rice's lawyer would have recommended vetting the surveillance program with the secret court that governs intelligence intercepts -- a step the Bush administration was forced to take five years later.

On Oct. 25, 2001, the chairmen and ranking minority members of the intelligence committees were summoned to the White House for their first briefing on the eavesdropping and were told that it was one of the government's most closely compartmented secrets. Under Presidents George H.W. Bush or Bill Clinton, officials said, a conversation of that gravity would involve the commander in chief. But when the four lawmakers arrived in the West Wing lobby, an aide led them through the door on the right, away from the Oval Office.

"We met in the vice president's office," recalled former senator Bob Graham (D-Fla.). Bush had told Graham already, when the senator assumed the intelligence panel chairmanship, that "the vice president should be your point of contact in the White House." Cheney, the president said, "has the portfolio for intelligence activities."

‘Oh, by the way’
By late October, the vice president and his allies were losing patience with the Bush administration's review of a critical question facing U.S. forces in Afghanistan and elsewhere: What should be done with captured fighters from al-Qaeda and the Taliban? Federal trials? Courts-martial? Military commissions like the ones used for Nazis under President Franklin D. Roosevelt?

Cheney's staff did not reply to invitations to join the interagency working group led by Pierre Prosper, ambassador at large for war crimes. But Addington, the vice president's lawyer, knew what his client wanted, Berenson said. And Prosper's group was still debating details. "Once you start diving into it, and history has proven us right, these are complicated questions," one regular participant said.

The vice president saw it differently. "The interagency was just constipated," said one Cheney ally, who spoke on condition of anonymity.

Flanigan recalled a conversation with Addington at the time in which the two discussed the salutary effect of showing bureaucrats that the president could act "without their blessing -- and without the interminable process that goes along with getting that blessing."

Throughout his long government career, Cheney had counseled against that kind of policy surprise, insisting that unvetted decisions lead presidents to costly mistakes.

When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:

BE AN HONEST BROKER

DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added:

"It's not in anyone's interest to get an 'oh by the way decision' -- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this."

In 1999, not long before he became Bush's running mate, Cheney warned again about "'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."

RELATED DOCUMENT

Cheney's Advice to Baker
Advice from Cheney to then incoming presidential chief of staff James A. Baker filled four pages of a yellow legal pad. View the actual notes and a transcript. More »

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.

According to Flanigan, Addington was not the first to think of military commissions but was the "best scholar of the FDR-era order" among their small group of trusted allies. "He gained a preeminent role by virtue of his sheer ability to turn out a draft of something in quick time."

That draft, said one of the few lawyers apprised of it, "was very closely held because it was coming right from the top."

‘In support of the president’
To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6, 2001, declaring that Bush did not need approval from Congress or federal courts. Yoo said in an interview that he saw no need to inform the State Department, which hosts the archives of the Geneva Conventions and the government's leading experts on the law of war. "The issue we dealt with was: Can the president do it constitutionally?" Yoo said. "State -- they wouldn't have views on that."

Attorney General John D. Ashcroft was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House.

The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president's senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise -- as part of a strategy to deny jurisdiction to U.S. courts.

Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. "The thing I remember about it is how rude, there's no other word for it, the attorney general was to the vice president," said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: "I'm just not prepared to comment on that."

According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush. Bolten, in an October 2006 interview after becoming Bush's chief of staff, did not deny that account. He signaled an intention to operate differently in the second term.

"In my six months' experience it would not fall to the vice president to referee that kind of thing," Bolten added. "If it is a presidential decision, the president will make it. . . . I think the vice president appreciates that -- that his role is in support of the president, and not as a second-tier substitute."

Three days after the Ashcroft meeting, Cheney brought the order for military commissions to Bush. No one told Bellinger, Rice or Powell, who continued to think that Prosper's working group was at the helm.

After leaving Bush's private dining room, the vice president took no chances on a last-minute objection. He sent the order on a swift path to execution that left no sign of his role. After Addington and Flanigan, the text passed to Berenson, the associate White House counsel. Cheney's link to the document broke there: Berenson was not told of its provenance.

Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing instructions to prepare it for signature immediately -- without advance distribution to the president's top advisers. Bowen objected, he told colleagues later, saying he had handled thousands of presidential documents without ever bypassing strict procedures of coordination and review. He relented, one White House official said, only after "rapid, urgent persuasion" that Bush was standing by to sign and that the order was too sensitive to delay. [Read the order ]

In an interview, Berenson said it was his understanding that "someone had briefed" the president "and gone over it" already. He added: "I don't know who that was."

‘It'll leak in 10 minutes’
On Nov. 14, 2001, the day after Bush signed the commissions order, Cheney took the next big step. He told the U.S. Chamber of Commerce that terrorists do not "deserve to be treated as prisoners of war." [Read Cheney's full remarks ]

The president had not yet made that decision. Ten weeks passed, and the Bush administration fought one of its fiercest internal brawls, before Bush ratified the policy that Cheney had declared: The Geneva Conventions would not apply to al-Qaeda or Taliban fighters captured on the battlefield.

Since 1949, Geneva had accorded protections to civilians and combatants in a war zone. Those protections varied with status, but the prevailing U.S. and international view was that anyone under military control -- even an alleged war criminal -- has some rights. Rumsfeld, elaborating on the position Cheney staked out, cast that interpretation aside. All captured fighters in Afghanistan, he said at a news briefing, are "unlawful combatants" who "do not have any rights" under Geneva.

At the White House, Bellinger sent Rice a blunt -- and, he thought, private -- legal warning. The Cheney-Rumsfeld position would place the president indisputably in breach of international law and would undermine cooperation from allied governments. Faxes had been pouring in at the State Department since the order for military commissions was signed, with even British authorities warning that they could not hand over suspects if the U.S. government withdrew from accepted legal norms.

One lawyer in his office said that Bellinger was chagrined to learn, indirectly, that Cheney had read the confidential memo and "was concerned" about his advice. Thus Bellinger discovered an unannounced standing order: Documents prepared for the national security adviser, another White House official said, were "routed outside the formal process" to Cheney, too. The reverse did not apply.

Powell asked for a meeting with Bush. The same day, Jan. 25, 2002, Cheney's office struck a preemptive blow. It appeared to come from Gonzales, a longtime Bush confidant whom the president nicknamed "Fredo." Hours after Powell made his request, Gonzales signed his name to a memo that anticipated and undermined the State Department's talking points. The true author has long been a subject of speculation, for reasons including its unorthodox format and a subtly mocking tone that is not a Gonzales hallmark.

A White House lawyer with direct knowledge said Cheney's lawyer, Addington, wrote the memo. Flanigan passed it to Gonzales, and Gonzales sent it as "my judgment" to Bush [Read the memo ]. If Bush consulted Cheney after that, the vice president became a sounding board for advice he originated himself.

Addington, under Gonzales's name, appealed to the president by quoting Bush's own declaration that "the war against terrorism is a new kind of war." Addington described the Geneva Conventions as "quaint," casting Powell as a defender of "obsolete" rules devised for another time. If Bush followed Powell's lead, Addington suggested, U.S. forces would be obliged to provide athletic gear and commissary privileges to captured terrorists.

According to David Bowker, a State Department lawyer, Powell did not in fact argue that al-Qaeda and Taliban forces deserved the privileges of prisoners of war. Powell said Geneva rules entitled each detainee to a status review, but he predicted that few, if any, would qualify as POWs, because they did not wear uniforms on the battlefield or obey a lawful chain of command. "We said, 'If you give legal process and you follow the rules, you're going to reach substantially the same result and the courts will defer to you,'" Bowker said.

Late that afternoon, as the "Gonzales memo" began to circulate around the government, Addington turned to Flanigan.

"It'll leak in 10 minutes," he predicted, according to a witness.

The next morning's Washington Times carried a front-page article in which administration sources accused Powell of "bowing to pressure from the political left" and advocating that terrorists be given "all sorts of amenities, including exercise rooms and canteens."

Though the report portrayed Powell as soft on enemies, two senior government lawyers said, Addington blamed the State Department for leaking it. The breach of secrecy, Addington said, proved that William H. Taft IV, Powell's legal adviser, could not be trusted. Taft joined Bellinger on a growing -- and explicit -- blacklist, excluded from consultation. "I was off the team," Taft said in an interview. The vice president's lawyer had marked him an enemy, but Taft did not know he was at war.

"Which, of course, is why you're ripe for the taking, isn't it?" he added, laughing briefly.

Staff researcher Julie Tate contributed to this report.

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House votes to ban aid to Saudi Arabia

Reuters
House votes to ban aid to Saudi Arabia
By Richard Cowan

WASHINGTON (Reuters) - The U.S. House of Representatives voted on Friday to prohibit any aid to Saudi Arabia as lawmakers accused the close ally of religious intolerance and bankrolling terrorist organizations.

The prohibition, reflecting persistent tensions with the kingdom after the September 11 attacks on the United States in 2001, was attached to a foreign aid funding bill for next year that has not yet been debated by the Senate.

It also faces a veto threat from the White House because of an unrelated provision.

A spokesman for the Saudi embassy in Washington declined to comment on the legislation.

In the past three years, Congress has passed bills to stop the relatively small amount of U.S. aid to Saudi Arabia, only to see the Bush administration circumvent the prohibitions.

Now, lawmakers are trying to close loopholes so that no more U.S. aid can be sent to the world's leading petroleum exporter.

"By cutting off aid and closing the loophole we send a clear message to the Saudi Arabian government that they must be a true ally in advancing peace in the Middle East," said Rep. Anthony Weiner, a New York Democrat.

According to supporters of the legislation, the United States provided $2.5 million to Riyadh in 2005 and 2006.

The money has been used to train Saudis in counter-terrorism and border security and to pay for Saudi military officers to attend U.S. military school.

"Saudi Arabia propagates terrorism. We all know that 15 of the 19 9/11 hijackers were Saudi," said Rep. Shelley Berkley, a Nevada Democrat. She added that Saudi youths had entered Iraq to "wage jihad" against U.S. forces fighting there.

Osama bin Laden, the Saudi-born leader of the al Qaeda group that carried out the September 11 attacks, was expelled from the kingdom in 1991 for anti-government activities.

OIL MONEY

Lawmakers also complained that with Saudi Arabia's vast wealth from oil revenues, U.S. taxpayers do not need to subsidize training Saudis.

"With poor countries all over the globe begging us for help, why are we giving money to this oil-rich nation?" Berkley said.

The U.S. State Department has routinely criticized Saudi Arabia for religious intolerance, disenfranchisement of women and arbitrary justice.

U.N. committees and groups such as Human Rights Watch and Amnesty International also have been critical of the Saudi legal system and its rights record, including punishments such as flogging and amputation.

Riyadh tends to dismiss the criticism by saying it follows the traditions of Islamic law.

Saudi Arabia is home to the two holiest sites in Islam -- Mecca and Medina -- and to a conservative Sunni Muslim ideology often called Wahhabism.

Despite the efforts by the lawmakers to cut off aid, the United States has had a strong relationship with Saudi Arabia in terms of energy and security.

But recently Saudi King Abdullah has asserted a more robust leadership role in the Middle East, putting himself at odds with Washington over Iraq and the Israeli-Palestinian conflict.

According to the Energy Information Administration, an agency of the U.S. Department of Energy, crude oil imports from Saudi Arabia are the third largest after Canada and Mexico.

Until 2003, the United States kept up to 10,000 soldiers in Saudi Arabia to help enforce a no-fly zone over southern Iraq that was put in place after the first Gulf War in 1991. Most of those forces have been withdrawn.



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Bush pick for key Justice Department job withdraws

Reuters
Bush pick for key Justice Department job withdraws
By Will Dunham

WASHINGTON (Reuters) - President George W. Bush's nominee for the third-ranking U.S. Justice Department post withdrew on Friday, becoming the department's latest casualty amid congressional scrutiny of the firings of federal prosecutors.

The move by William Mercer, selected by Bush for the post of associate attorney general, came just days before a scheduled Senate Judiciary Committee hearing on Tuesday on his nomination. Mercer had been serving in the job on an acting basis since last September while also holding the job of U.S. attorney in Montana, a post he will retain.

Mercer becomes the sixth Justice Department official to step aside since March as the Democratic-led Congress investigates the department's firing of nine U.S. attorneys.

"After much consideration, I have concluded that it is highly unlikely that both the Judiciary Committee and the Senate will take prompt action on my nomination in the near term, if ever," Mercer said in a letter to Attorney General Alberto Gonzales explaining why he asked Bush to withdraw his nomination.

"This view is informed in part by statements suggesting that some senior Justice nominees will not be voted upon until the Senate receives e-mails and witnesses it has demanded from the White House," Mercer added.

Gonzales, who has fended off demands from some lawmakers for his resignation, ousted the prosecutors last year as part of a plan that originated at the White House.

Critics have questioned whether partisan politics played an improper role in the dismissal plans. Bush and Gonzales say the firing of nine of the 93 U.S. attorneys, all Bush appointees, was justified, although mishandled.

'NO CLEAR END IN SIGHT'

"With no clear end in sight with respect to my nomination, it is untenable for me to pursue both responsibilities and provide proper attention to my family," Mercer wrote.

Judiciary Committee Chairman Sen. Patrick Leahy, a Vermont Democrat, said he viewed the move as an attempt by the Bush administration to sidestep questions from lawmakers.

"The White House has found many ways to keep sunlight from reaching some of the darker corners of the Bush Justice Department, but this is a new one," Leahy said in a statement.

"With a confirmation hearing looming next Tuesday, they have withdrawn this nomination to avoid having to answer more questions under oath."

In a statement, Gonzales offered praise for Mercer.

"Given his 17 years of service in the Department of Justice, I have benefited from Bill Mercer's service as the Acting Associate Attorney General over the past 10 months and am very pleased that the Department will continue to benefit from his leadership, talent and experience through his role as U.S. Attorney in Montana," Gonzales said.

"It's unfortunate that some members of the Senate have indicated they will not act to confirm highly qualified nominees," added Emily Lawrimore, a White House spokeswoman, by e-mail.

Exactly a week ago, Mike Elston, the chief of staff to outgoing Deputy Attorney General Paul McNulty, became the fifth Justice Department official to depart since the controversy over the firing of the federal prosecutors flared.

Unlike the others leaving senior department posts, Mercer will retain the U.S. attorney job in Montana. Mercer had faced criticism from some in Congress and elsewhere for holding both jobs at once.




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NY Gov: State Senate stalls reform, seeks more pay

Reuters
NY Gov: State Senate stalls reform, seeks more pay

ALBANY, New York (Reuters) - New York Democratic Gov. Eliot Spitzer on Friday bashed the GOP-led Senate for blocking reforms on everything from clean air to campaign finance, and vowed to keep playing hardball despite criticism of his style.

His Republican opponent, Senate Majority Leader Joseph Bruno, in a statement, blamed Spitzer for letting the Legislature's session end on Thursday in "a whimper" despite its promising start.

Spitzer's fellow Democrat, Assembly Speaker Sheldon Silver, said: "If I were offering suggestions, it would be for everybody involved in the process, that cooler heads prevail and substantive dialogue is what will produce a greater result."

One key issue left open was Mayor Michael Bloomberg's bid to fight gridlock by discouraging Manhattan commuters from driving by charging an $8-per-car fee on weekdays from 6 a.m. to 6 p.m.

Spitzer, eager to burnish his reputation as a reformer, also sought to strengthen the oversight of public authorities, which control billions of dollars of spending and bonding, and curb how much cities spend on construction by cutting the number of contracts they must sign for each project.

Other bills would have streamlined rules for choosing new power plant locations and made much better use of as much as $1 billion of state tax credits for cleaning up 54 brownfields, which are old and polluted industrial sites, Spitzer said.

Asked by Albany reporters if he was to blame for some of the impasse, Spitzer referred to his campaign promise that everything changes on "Day One" of his January swearing-in.

"What changed is that there is an energy, a determination, a will, a grit of resolve, and we're not going to quit."

PAY RAISE AND POLITICS

Promising to travel the state to make his case, Spitzer slammed senators for voting themselves a pay raise and approving nearly $500 million of pork barrel spending.

Bruno has fiercely objected to Spitzer's open support for Democrats in legislative races.

"We don't target people or senators," the governor said.

Releasing a list of the session's achievements, which he said included an historic 10 percent increase in school aid, Spitzer added: "We're going to play hardball when it comes to getting the bills passed to do the people's business."

New York's mayor, now an independent, soared above the partisan clashes on his Friday WABC radio show, saying he hoped Bruno and the Democratic speaker will enact a so-called congestion pricing bill by a July 16 federal funding deadline.

The Senate wanted to create a commission to study the congestion-pricing plan. Bruno wanted the Senate, the Assembly, the governor and the mayor to all share control of $380 million a year in new revenue from the congestion fee.

In contrast, Bloomberg wanted to rule that spending.

Silver, as often is the case, has not said whether he backs Bloomberg's plan, one of the mayor's 127 Earth Day initiatives. On Friday, the speaker said he will review whether the fees should vary with the time of day and whether the mayor or the state mass transit agency should control the fee revenue.

Another issue is who should pay more -- city dwellers or suburbanites, who could deduct the city fees from their bridge and tunnel tolls, Silver said.

"I'm sure that the Senate will look for a significant portion of any money raised under the mayor's plan to go to the Long Island Rail Road," he added.

Long Island has long been a Republican base.

The Senate's Republican leader, blasting Spitzer's aides for booting one of his staffers from the governor's news conference, said: "It's unfortunate that the governor continues to bully and threaten in an attempt to get his way."

Bruno also called Spitzer's push to slash campaign contributions "his singular pursuit of an issue that no one cares about."

An Assembly spokesman could not immediately say whether the house adjourned before authorizing $1.4 billion of tax-exempt bonds for local development projects.




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Friday, June 22, 2007

Libby Apologists Are A Gift to Anthropologists Everywhere

The Huffington Post
RJ Eskow
Libby Apologists Are A Gift to Anthropologists Everywhere

If I were studying sociology or anthropology I'd drop everything right now and run to Washington, DC. There's a great piece to be written about what Scooter Libby's defenders reveal about that city's power elite. (Think Mean Girls meets All the President's Men.) What an opportunity: The response to a perceived attack on one of the tribe is revealing a hidden culture to the world.

Social scientists will tell you that most communities are divided into at least two groups, insiders and interlopers. Washington is no exception. "He came in and trashed the place," David Broder famously wrote of Bill Clinton, "and it wasn't his place." It's Scooter Libby's place, though. He's part of the capital's power elite, a culture with its own social hierarchy, folkways, and shared beliefs

Anthropologists are fond of drawing "kinship charts" that document relationships and hierarchies within a tribe or community. A Washington "kinship chart" would show that the consanguineal loyalties of biological family have been replaced by webs of social intimacy and shared perceptions.

At the top of the DC chart are the designated leaders, the chieftains. The best way to get there is to have occupied a place in the hierarchy for a long time, after working your way up as apprentice to an earlier chief. A history of senior positions in past administrations fits the bill, hence the prominence of figures like Cheney and Rumsfeld. That's why in some ways Cheney holds more totemic power in Washington than does Bush himself.

On the next line down come those who draw their power from the top-line leaders. That's where Scooter comes in, as a Cheney acolyte. That's where Mary Matalin shows up, too, as a long-time operative for Republican administrations. The law school professors who authored a brief challenging the special prosecutor in the Libby case appear on this line, too. They represent a long line of interest groups, think tanks, and academic institutions who benefit from the largesse of the top-line hierarchy through grants of power, funding, and/or support for cherished causes.

Newspaper publishers hold top-line status based on the institutions they control, while the writers and commentators who work for them appear several layers down in the chart. On a practical level, the ability of these writers to survive professionally depends on the favors bestowed on them from their social superiors in government and the media. On a personal level, they identify emotionally with the tribe and react violently when any of its leaders are under attack.

This group's folkways are reinforced every day. Their kids go to the same schools. They go to the same restaurants and clubs. Their intimacy's been ritually celebrated at a thousand cocktail parties, with wine and hors d'oeuvres as the unconsecrated host. And judging from what we've heard lately, it seems that excoriating unruly outsiders (whether they're bloggers, Bill Clinton, or uncooperative voters) has replaced the ritual eating of an enemy's heart.

Maybe that's why writers like Richard Cohen can so casually commit what seems to be journalistic malpractice when writing about the Libby case. For example, no matter how many times Patrick Fitzgerald repeats his belief that an underlying crime was committed in the Libby case, Cohen and his fellows will keep saying that Fitzgerald's asserted no such thing. Why such misdirection, which appears to violate the Society of Professional Journalists' written code of ethics? And now Cohen seems to be asserting that a Republican prosecutor and Republican judge are conducting a leftist show trial in retaliation for the war in Iraq.

That sort of twisted logic isn't unusual among Libby defenders. Why do people who are often smart thinkers and good writers allow themselves to bend the rules of logic and ethics in defense of someone like Libby? Because people who do deceitful things often believe that they're obeying a higher ethical law. Often they're not even conscious of doing anything wrong. So when the Richard Cohens of the world repeatedly misstate the facts, one can only conclude that their belief in Libby's "decency" and the "unfairness" of the prosecution allows them to ignore both good journalism and the national good.

Tribe members consider Libby a decent public servant tricked by inquisitors into perjuring himself. Most other Americans recognize him for what he really is: a convict who convinced a Republican prosecutor and judge - and an entire jury - of his criminality, beyond a reasonable doubt.

That's the problem. Sometimes the pull of cultural beliefs is so strong that people can't even see facts that threaten their shared reality. I would guess that no journalist or pundit working in DC today - not Cohen, not Joe Klein, not David Broder - believes they are doing anything other than upholding their professional principles and serving the nation. That's why they can't react to challenges without indignation, rage, or distortion: Those challenges undermine their shared reality, so the challengers must be personally attacked instead. Their identity becomes the topic. The result? Outsiders such as bloggers become the enemy tribe. The fact that these outsiders don't obey the group's social conventions only amplifies the outrage.

Mary Matalin's letter on behalf of Libby (co-signed by her husband James Carville) is an especially useful vein for reserchers in search of DC folklore. "His wife and my husband share similar (presumably centrist Democratic) political views," Matalin writes. This speaks to "bipartisanship," a so-far mythical political movement extolled by Broder and others. Bipartisanship remains attractive to members of the insider group because it places greater importance on tribal standing than on heartfelt political values.

"Our service put great strains on our respective families," writes Ms. Matalin. This echoes a common theme in many of Mr. Libby's letters of support, which emphasizes the bonding ritual of long hours spent working in the corridors of power.

But it is in speaking of children that Ms. Matalin best articulates the folkways and loyalties of the DC tribe. She writes movingly of Libby's attempts to entertain children isolated in a "secure undisclosed location" one Halloween, and asks the judge to consider "what further justice would be served by additional devastation to them and the many other children who love Scooter."

This shouldn't need to be said, but let's be clear: Nobody wants Libby's children or their friends to suffer. It's tough to be the child of a felon. What I find striking about the Matalin letter is not its tender concern for children, which is admirable, but the underlying amorality shown by its inability to see the suffering of Valerie Plame Wilson's children or the many others hurt by Libby's actions. Those children are simply less real to her. Out of sight, out of mind. That's Ms. Matalin's problem, and it's Cohen's too.

Libby's lawyer reportedly tried to block the release of the letters written on his behalf by Matalin and such top-line chieftains as Henry Kissinger and Donald Rumsfeld. His argument was that their publication would subject their authors to scorn and ridicule, especially by that hostile tribe known as "bloggers." Maybe, but I'm more concerned about making sure they're available to be catalogued, studied, and understood.

The underground folkways and practices of this particular tribe may not be this visible again for years. Graduate students, take note. This is your chance to study a culture that's rarely observed in the field. The more it's exposed to the light of day, the more it will be robbed of its power.

Any takers? It would be a good way to write your thesis - and help your country at the same time.


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A dozen rulings in the last year have been a boon to corporations by making it harder to sue them or limiting lawsuit damages

High court has been good for business
A dozen rulings in the last year have been a boon to corporations by making it harder to sue them or limiting lawsuit damages.
By David G. Savage
Times Staff Writer

WASHINGTON — The Bush administration and corporate lobbyists long have sought sweeping "tort reform" to limit lawsuits and massive jury awards — without much success. But in the last year, they quietly have been winning much of what they've wanted on a case-by-case basis in the Supreme Court.

With a week to go in their term, the justices have handed down a dozen rulings that sharply limit the damages that can be won in lawsuits or make it harder to sue corporations.

"The Roberts court is even better for business" than the court led for two decades by the late Chief Justice William H. Rehnquist, said Washington attorney Maureen E. Mahoney, who is a longtime friend of Chief Justice John G. Roberts Jr. and a former clerk for Rehnquist. "There is unquestionably a greater number of business cases before the court, and [the justices] are quite willing to limit damage remedies."

In February, for example, the court threw out an $80-million punitive damage verdict against cigarette maker Philip Morris, ruling that juries cannot use a single victim's suit to punish a company for harm done by its products to thousands of others.

Last month, in a similar decision, the court set aside a California jury's $55-million verdict against Ford Motor Co. arising from a rollover accident involving its Ford Explorer.

Two weeks ago, the court shielded the insurance industry from paying millions of dollars in damages for not notifying customers when they check their credit ratings.

A few days before that, the court protected employers from being sued over pay discrimination against women and minorities that occurred in past years. The 5-4 decision overturned a verdict in favor of a female supervisor at a Goodyear Tire plant, saying she had failed to point to discrimination in the 180 days prior to filing her suit — a strict statute of limitations set in the Civil Rights Act of 1964.

On Monday, the court threw out a massive suit alleging "an epic Wall Street conspiracy" among the nation's leading investment bankers to fix the prices of new stock offerings during the Internet boom of the late 1990s. It was the third decision this year to restrict the reach of antitrust laws.

None of these pro-business decisions came as a huge surprise. But lawyers who practice regularly before the high court say it is noteworthy that business has been winning so consistently.

It is "a very business-friendly court," said Beth S. Brinkmann, a Washington lawyer who served in the Clinton administration. The justices have made it harder to sue business on many fronts, she said.

Los Angeles Times
Corporate lawyers say that suing companies should not be too easy because that encourages frivolous suits, and defending against them — even when the claim is ultimately rejected — can cost millions of dollars.

Last month, in the case of Bell Atlantic vs. Twombly, the Supreme Court made it easier for companies to win a quick dismissal of some claims.

Five years ago, a group of plaintiffs' lawyers alleged the "Baby Bell" companies that provide local phone service had secretly conspired not to compete with each other. If this were true, these companies had violated antitrust laws and were subject to damages that could run into the billions. The lawyers claimed to represent every American who had phone service or subscribed to a high-speed Internet line.

Two years ago, a federal appeals court in New York cleared the suit to go forward. But on May 21, the Supreme Court threw it out. It was not enough to say a conspiracy was possible, Justice David H. Souter said in an opinion for a 7-2 majority. Rather, the plaintiffs must show real evidence of a "plausible" conspiracy at the start, he said.

This seemingly technical tweak is likely to have a broad effect, legal experts say, because it set a higher hurdle for civil suits. It will also encourage more trial judges to dismiss claims at the earliest stages, they said.

The ruling strikes "a blow to the plaintiffs' bar, which has used such bare assertions to extort money from businesses operating legitimately," said Robin S. Conrad, a lawyer and vice president of the U.S. Chamber of Commerce. "Frivolous lawsuits have huge costs to consumers, workers and the overall economy."

But a lawyer who represents consumers and accident victims in the high court said business advocates are celebrating too soon.

"I think it's a premature to say this a pro-business court," said Robert S. Peck, president of the Center for Constitutional Litigation. "The court takes on these issues one at a time, and in some of the cases, they are taking baby steps. Business is not always getting the victory they asked for."

Peck represented the family of the deceased smoker in the punitive-damages case involving Philip Morris. He noted the Supreme Court did not set a hard-and-fast rule for limiting such verdicts, but rather told the Oregon courts to reconsider the $80-million award in this case. "It's not clear they will change the award at all," he said, referring to the Oregon judges.

Consumer advocates say it is especially important that victims of corporate wrongdoing have the option of going to court, partly because the federal government for years has been scaling back its regulation of business.

"It is only in the courtroom where an individual consumer stands on an equal footing with a powerful corporation. It is there they can have their day in court before a jury," Peck said. "If it is all decided in the halls of power, the corporations are going to have their way."

The high court is due to issue more decisions today and release its final rulings of the term next week.

One closely watched case will decide whether to protect companies from suits alleging securities fraud. Business lawyers want to make it harder to sue companies for fraud after a sharp drop in the stock price. They say plaintiffs need real evidence of fraud and deceit, not just rosy predictions for the future that did not come true. A ruling on this issue is due in Tellabs vs. Makor.

The justices also have yet to decide a business case that could affect how much shoppers pay for products ranging from watches and handbags to golf clubs and tennis rackets. For nearly a century, it has been illegal under antitrust laws for manufacturers to set a minimum retail price for their products.

That rule is being challenged this year by a Los Angeles maker of women's handbags. Mahoney predicted the court is likely to strike down the long-standing rule.

"This court subscribes to the Chicago school of law and economics," she said, referring to the free-market theories associated with the University of Chicago that cast a skeptical eye on nearly all regulation of business.

--

david.savage@latimes.com

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Poll shows Bush's approval rating hits new low

People's Daily
Poll shows Bush's approval rating hits new low

The latest Newsweek poll found U.S. President George W. Bush's approval rating has hit a record low, with only 26 percent of the respondents endorsing him.

Meanwhile, a record high 65 percent disapprove of him, including nearly a third of Republicans, according to poll results released by the Newsweek website on Thursday.

Most notably, the 26 percent rating, a two-point drop from the last Newsweek poll in May, puts Bush lower than Jimmy Carter, who sunk to his nadir of 28 percent in a Gallup poll in June 1979.

In fact, the only president in the last 35 years to score lower than Bush is Richard Nixon.

Nixon's approval rating tumbled to 23 percent in January 1974, seven months before his resignation over the botched Watergate break-in.

The war in Iraq continues to be the major factor that drags Bush's rating down.

A record 73 percent of Americans disapprove of the job Bush has done handling Iraq.

Despite "the surge" of U.S. forces in Iraq, a record-low 23 percent of Americans approve of the president's actions in Iraq, down 5 points since the end of March.

Moreover, Bush scores record or near record lows on every major issue: from the economy (34 percent approve, 60 percent disapprove) to health care (28 percent approve, 61 percent disapprove) to immigration (23 percent approve, 63 percent disapprove).

Source: Xinhua

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Waxman Decries Cheney Security Exemption

Guardian Unlimited
Waxman Decries Cheney Security Exemption
By DEB RIECHMANN
Associated Press Writer

WASHINGTON (AP) - House Democrats on Thursday denounced Vice President Dick Cheney's idea of abolishing a government office charged with safeguarding national security information - and criticized him for refusing to cooperate with the agency.

Cheney's office - over the objections of the National Archives - has exempted itself from a presidential executive order that seeks to protect national security information generated by the government, according to the House Committee on Oversight and Government Reform.

Under the order, executive branch offices are required to give the Information Security Oversight Office at the archives data on how much material it has classified and declassified.

Cheney's office provided the information in 2001 and 2002, then stopped. Henry Waxman, chairman of the committee, said Cheney's office claims it need not comply with the executive order because it is not an ``entity within the executive branch.''

``Your decision to except your office from the president's order is problematic because it could place national security secrets at risk,'' Waxman wrote in a letter to Cheney on Thursday.

Megan McGinn, a spokeswoman for the vice president, said Cheney's office was not breaking the law, but did not elaborate.

``We are confident that we are conducting the office properly under the law,'' she said.

The Information Security Oversight Office has asked Attorney General Alberto Gonzales to resolve the legal dispute over whether the order applies to Cheney's office. So far, the Justice Department has not ruled on the issue.

Waxman said J. William Leonard, director of the Information Security Oversight Office, told the panel that after he sought advice from the Justice Department, Cheney's office recommended that the executive order be amended to abolish the ISOO. ``I question both the legality and wisdom of your actions,'' Waxman said.

Waxman said Leonard also told the panel that in 2004, Cheney's office blocked the archives from doing an onsite inspection of his office to make sure classified information was being properly protected.

``To my knowledge, this was the first time in the nearly 30-year history of the Information Security Oversight Office that a request for access to conduct a security inspection was denied by a White House office,'' Waxman wrote.



The eight-page letter asks Cheney to respond to a series of questions about why he believes his office is exempt, and what steps his office has taken to ensure that national security information is protected.

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Bush, Senate head for showdown on domestic spying

Reuters
Bush, Senate head for showdown on domestic spying
By Thomas Ferraro

WASHINGTON (Reuters) - President George W. Bush headed toward a showdown with the Senate over his domestic spying program on Thursday after lawmakers approved subpoenas for documents the White House declared off-limits.

"The information the committee is requesting is highly classified and not information we can make available," White House spokesman Tony Fratto said in signaling a possible court fight.

The Senate Judiciary Committee approved the subpoenas in a 13-3 vote following 18 months of futile efforts to obtain documents related to Bush's contested justification for warrantless surveillance begun after the September 11 attacks.

Three Republicans joined 10 Democrats in voting to authorize the subpoenas, which may be issued within days.

"We are asking not for intimate operational details but for the legal justifications," said Committee Chairman Patrick Leahy, a Vermont Democrat. "We have been in the dark too long."

Authorization of the subpoenas set up another possible courtroom showdown between the White House and the Democratic-led Congress, which has vowed to unveil how the tight-lipped Republican administration operates.

Last week, congressional committees subpoenaed two of Bush's former aides in a separate investigation into the firing last year of nine of the 93 U.S. attorneys.

Bush could challenge the subpoenas, citing a right of executive privilege his predecessors have invoked with mixed success to keep certain materials private and prevent aides from testifying.

Bush authorized warrantless surveillance of people inside the United States with suspected ties to terrorists shortly after the September 11 attacks. The program, conducted by the National Security Agency, became public in 2005.

WARTIME POWERS

Critics charge the program violated the 1978 Foreign Intelligence Surveillance Act, which requires warrants. Bush said he could act without warrants under wartime powers.

In January, the administration abandoned the program and agreed to get approval of the FISA court for its electronic surveillance. Bush and Democrats still are at odds over revisions he wants in the FISA law.

"The White House ... stubbornly refuses to let us know how it interprets the current law and the perceived flaws that led it to operate a program outside the process established by FISA for more than five years," Leahy said.

Interest in the legal justification of the program soared last month after former Deputy Attorney General James Comey testified about a March 2004 hospital-room meeting where then-White House counsel Alberto Gonzales tried to pressure a critically ill John Ashcroft, then the attorney general, to set aside concerns and sign a presidential order reauthorizing the program.

With top Justice Department officials threatening to resign, Bush quietly quelled the uprising by directing the department to take steps to bring the program in line with the law, Comey said.

Leahy noted that when Gonzales, now attorney general, appeared before the panel on February 6, he was asked if senior department officials had voiced reservations about the program.

"I do not believe that these DoJ (department) officials ... had concerns about this program," Leahy quoted Gonzales as saying. Leahy added, "The committee and the American people deserve better."

(Additional reporting by Matt Spetalnick)


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Tuesday, June 19, 2007

Iraq now ranked second among world's failed states

Reuters
Iraq now ranked second among world's failed states
By David Morgan

WASHINGTON (Reuters) - Iraq has emerged as the world's second most unstable country, behind Sudan, more than four years after President George W. Bush ordered the U.S. invasion to topple Saddam Hussein, according to a survey released on Monday.

The 2007 Failed States Index, produced by Foreign Policy magazine and the Fund for Peace, said Iraq suffered a third straight year of deterioration in 2006 with diminished results across a range of social, economic, political and military indicators. Iraq ranked fourth last year.

Afghanistan, another war-torn country where U.S. and NATO forces are battling a Taliban insurgency nearly six years after a U.S.-led invasion, was in eighth place.

"Iraq and Afghanistan, the two main fronts in the global war on terror, both suffered over the past year," a report that accompanied the figures said.

"Their experiences show that billions of dollars in development and security aid may be futile unless accompanied by a functioning government, trustworthy leaders, and realistic plans to keep the peace and develop the economy."

The index said Sudan, the world's worst failed state, appears to be dragging down its neighbors Central African Republic and Chad, with violence in the Darfur region responsible for at least 200,000 deaths and the displacement of 2 million to 3 million.

The authors of the index said one of the leading benchmarks for failed state status is the loss of physical control of territory or a monopoly on the legitimate use of force.

Other attributes include the erosion of legitimate authority, an inability to provide reasonable public services and the inability to interact with other states as a full member of the international community.

Foreign Policy magazine is published by the Carnegie Endowment for International Peace, a Washington-based think tank. The Fund for Peace is an independent research group devoted to preventing and resolving conflicts.




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Bush aides may have illegally lost e-mail, Dems say

Reuters
Bush aides may have illegally lost e-mail, Dems say
By Andy Sullivan

WASHINGTON (Reuters) - Karl Rove and dozens of other White House staffers appear to have illegally routed official e-mails through a Republican group that subsequently deleted them, a congressional report said on Monday.

By using Republican National Committee e-mail accounts for official business, senior White House aides may have broken a law requiring them to preserve presidential records, the House Committee on Oversight and Government Reform said in an interim report.

"This should be a matter of grave concern for anyone who values open government and the preservation of an accurate historical record," said committee Chairman Henry Waxman, a California Democrat.

The Presidential Records Act of 1978 requires White House officials to save official correspondence. While the White House automatically archives its e-mail the RNC typically deletes messages on its server older than 30 days, the report said.

The White House and the RNC said Waxman's committee was jumping to conclusions.

"We have seen a number of times right now where people have been putting together investigations to see what sticks. They have had very little success so far," White House spokesman Tony Snow said.

White House officials have for years used RNC e-mail accounts to comply with the Hatch Act, which forbids public servants from using government property to conduct political business.

At least 88 White House staffers had RNC accounts and there are signs that many of them used those accounts extensively for nonpolitical matters, the committee said.

Rove, a top political adviser to President George W. Bush, sent more than 100 e-mail messages and received more than 200 each day through his RNC account in 2007, the report said.

More than half of the 140,000 Rove messages saved by the RNC was correspondence with other government officials, the committee said. Most of his correspondence from Bush's first term has not been preserved, it said.

Rove thought his messages were being archived, his former assistant Susan Ralston told the committee. His lawyer has said he never intentionally deleted e-mail from any accounts.

The RNC said it is still searching for the missing e-mails.

"There is no basis for an assumption that any e-mail not already found would be of an official nature," RNC spokeswoman Tracey Schmitt said by e-mail.

The report also points a finger at Attorney General Alberto Gonzales, currently facing pressure to resign over U.S. attorney firings that Democrats say were political in nature.

As White House counsel, Gonzales may have known that Rove and others were using RNC accounts but did nothing to stop it, the report says.

A Justice Department official referred questions to the White House.

The committee said it will investigate Gonzales' role further and search federal agencies for copies of the missing e-mails. It also said it plans to subpoena Bush's 2004 re-election campaign for additional e-mails because the campaign has not cooperated.



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House panel drops auto fuel standard from plan

Reuters
House panel drops auto fuel standard from plan

WASHINGTON (Reuters) - Leaders of the committee writing energy legislation in the U.S. House of Representatives backed away on Monday from controversial elements of the bill, including new fuel economy standards for automobiles.

Michigan Democrat John Dingell, chairman of the House Energy and Commerce Committee, and Virginia Democrat Rick Boucher, who leads the subcommittee writing the bill, said in a letter to members that the panel was pressed for time and could not reach agreement on several issues.

House Speaker Nancy Pelosi wants energy legislation ready before the July 4 recess and has been negotiating with Dingell on key elements of the bill with mixed success.

Instead, the panel plans to focus on a scaled-back plan. This will include an initiative to improve efficiency of the nation's electricity grid as well as auto-related proposals to advance battery technology for electric cars and accelerate production of alternative fuels, like gasoline/ethanol blends favored by major carmakers.

Committee leaders dropped a measure to block California and 11 states from landmark regulations to limit tailpipe emissions, labeled as a culprit of global warming. Pelosi, a California Democrat, and California Gov. Arnold Schwarzenegger, opposed congressional interference on that issue.

To be considered later are provisions that would promote liquefied coal for vehicle fuels and standards to lower carbon output in fuels. Proposals for making new vehicles go further on a gallon of gasoline -- aimed at quickly reducing oil imports -- would be left out of the bill.

Draft fuel economy standards proposed by the committee were weaker than those being considered this week in the U.S. Senate, and were sharply criticized by some senior members of the House panel.

The leading plan in the Senate would require 4 percent annual increases in fuel economy, which auto industry contends is not feasible.

Dingell is a longtime ally of Detroit automakers who have resisted tougher fuel standards. He and Boucher said provisions dropped from the bill would be revived during debate on climate change legislation in the fall.




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Saturday, June 16, 2007

Democratic House boosts domestic security funds for 2008

Reuters
House boosts domestic security funds for 2008
By Richard Cowan

WASHINGTON (Reuters) - The House of Representatives on Friday approved significant increases in funds next year for domestic security and veterans care in a challenge to President George W. Bush's more limited budget requests.

By a vote of 268-150, the House passed a $36 billion domestic security bill for fiscal 2008 that the White House has threatened to veto, in part because it would spend about $2 billion more than Bush wanted.

"We are spending $10 billion a month in Iraq. Given our continuing homeland security vulnerabilities, we surely can find $2 billion more to keep the American people safer at home," argued House Majority Leader Steny Hoyer, a Maryland Democrat.

The bill was the first of 12 spending bills for the fiscal year starting October 1 to pass the House and the beginning of a struggle over how to spend more than $900 billion to fund the federal government overall.

The White House said Democrats had concocted a domestic security bill with "an irresponsible and excessive level of spending."

Later on Friday, the House, by a vote of 409-2, approved a second bill that provides $64.7 billion for veterans and military construction projects.

It would also spend significantly more than Bush wanted, including $1.7 billion above the president's request to improve access to medical care for veterans. Democrats say the money is needed to help the Veterans Administration deal with the large number of injured soldiers returning from combat in Iraq.

The vote came on the same day a Defense Department task force concluded the military was ill-prepared to deal with mental health problems developing among soldiers serving extended deployments in war zones. It also came after reports earlier this year of poor medical treatment for wounded soldiers at Walter Reed Army Medical Center.

DELAY IN PASSPORT RULE

Earlier this week, the White House backed away from threats to veto the veterans bill.

The Senate has not yet passed its version of the security or veterans funding bills.

The security funds are intended to help stem illegal immigration and better prepare the country for another terrorist attack or weather-related disaster.

The Department of Homeland Security funding bill includes more money than Bush requested for the Federal Emergency Management Agency, or FEMA. The agency provides emergency rescue and relief services and was criticized for a slow, confused response to the Gulf Coast devastation brought by Hurricane Katrina in 2005.

Before passing the bill, the House overwhelmingly approved an amendment to delay until mid-2009 a border security program requiring U.S. and Canadian citizens to have passports or other high-tech identification that can be scanned when arriving from Canada, Mexico, Bermuda and Caribbean countries.

The proposed delay, which also is pending in the Senate, would apply only to travelers entering the United States by land or sea. The requirement is now set to take effect next year.

The government is having a difficult time processing the huge increase in passport applications prompted by the program and a similar one for air travelers. Congressional offices have been inundated with complaints from constituents whose passports have been delayed.

The bill also aims to improve airport baggage screening, double the amount of cargo being screened for explosives before being loaded onto passenger aircraft and allow states to impose tougher security regulations on chemical plants.

Local law enforcement agencies also would receive more money than Bush had requested to train and equip themselves for a terrorist attack.

If Bush vetoes the bill, House Republican leaders predicted they would have enough support to prevent the Democrats from overriding the veto.

((Editing by Eric Walsh; Reuters Messaging: richard.cowan.reuters.com@reuters.net; 202-898-8391)




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Friday, June 15, 2007

U.S. officials can be sued in Sept 11 abuse case

Yahoo! News
U.S. officials can be sued in Sept 11 abuse case
By Christine Kearney

A Pakistani man who says he was abused in detention after the September 11 attacks can name the FBI director and a former U.S. attorney general in his lawsuit against the government, an appeals court ruled on Thursday.

Javaid Iqbal, a Muslim, was held for more than a year at a Brooklyn detention center after the September 11 attacks. He, along with hundreds of Muslims and Arabs sued the U.S. government, claiming they were abused and held for no legitimate reason.

Iqbal says he was subjected to repeated strip searches, beaten, dragged across the floor and that the lights in his cell were kept on 24 hours a day.

The defendants, including FBI Director Robert Mueller and former Attorney General John Ashcroft, had appealed a lower court decision that allowed Iqbal's lawyers to seek information on what the officials knew about the abuse.

As part of their efforts to dismiss the case, lawyers for Mueller and Ashcroft argued the officials could not be held personally accountable, but the 2nd U.S. Circuit Court of Appeals disagreed and ruled Ibqal's suit could go forward.

It was "plausible" that Ashcroft and Mueller and other senior Justice Department officials "would be aware of policies concerning the detention of those arrested by federal officers in the New York City area in the aftermath of 9/11," the appeals panel said.

The panel also disagreed with lawyers for Mueller and Ashcroft who argued their actions were reasonable "in the post-9/11 context" and that Iqbal received proper treatment.

The court said while they recognized "the gravity of the situation that confronted investigative officials of the United States as a consequence of the 9/11 attack," Iqbal still had the right to not be harshly treated or discriminated against.


"The exigent circumstances of the post-9/11 context do not diminish the plaintiff's right not to be needlessly harassed and mistreated in the confines of a prison cell by repeated strip and body-cavity searches," the court said.

Iqbal said he lost nearly 40 pounds (18 kg) and suffered depression after his detention. Shortly after his release in 2003, he pleaded guilty to having false Social Security papers and writing bad checks and served time in prison before being deported.

The panel did not rule whether there was any truth to Iqbal's claim that there was no evidence connecting him to terrorism.

U.S. authorities detained 762 non-citizens -- almost all Muslims or Arabs -- in the weeks after the attacks.

The U.S. government in February paid $300,000 to settle with Iqbal's co-plaintiff and fellow detainee Ehab Elmaghraby, an Egyptian, although it did not admit wrong-doing.



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FBI Finds It Frequently Overstepped in Collecting Data

washingtonpost.com
FBI Finds It Frequently Overstepped in Collecting Data
By John Solomon
Washington Post Staff Writer

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

FBI officials said the results confirmed what agency supervisors and outside critics feared, namely that many agents did not understand or follow the required legal procedures and paperwork requirements when collecting personal information with one of the most sensitive and powerful intelligence-gathering tools of the post-Sept. 11 era -- the National Security Letter, or NSL.

Such letters are uniformly secret and amount to nonnegotiable demands for personal information -- demands that are not reviewed in advance by a judge. After the 2001 terrorist attacks, Congress substantially eased the rules for issuing NSLs, requiring only that the bureau certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."

The change -- combined with national anxiety about another domestic terrorist event -- led to an explosive growth in the use of the letters. More than 19,000 such letters were issued in 2005 seeking 47,000 pieces of information, mostly from telecommunications companies. But with this growth came abuse of the newly relaxed rules, a circumstance first revealed in the Justice Department's March report by Inspector General Glenn A. Fine.

"The FBI's comprehensive audit of National Security Letter use across all field offices has confirmed the inspector general's findings that we had inadequate internal controls for use of an invaluable investigative tool," FBI General Counsel Valerie E. Caproni said. "Our internal audit examined a much larger sample than the inspector general's report last March, but we found similar percentages of NSLs that had errors."

"Since March," Caproni added, "remedies addressing every aspect of the problem have been implemented or are well on the way."

Of the more than 1,000 violations uncovered by the new audit, about 700 involved telephone companies and other communications firms providing information that exceeded what the FBI's national security letters had sought. But rather than destroying the unsolicited data, agents in some instances issued new National Security Letters to ensure that they could keep the mistakenly provided information. Officials cited as an example the retention of an extra month's phone records, beyond the period specified by the agents.

Case agents are now told that they must identify mistakenly produced information and isolate it from investigative files. "Human errors will inevitably occur with third parties, but we now have a clear plan with clear lines of responsibility to ensure errant information that is mistakenly produced will be caught as it is produced and before it is added to any FBI database," Caproni said.

The FBI also found that in 14 investigations, counterintelligence agents using NSLs improperly gathered full credit reports from financial institutions, exercising authority provided by the USA Patriot Act but meant to be applied only in counterterrorism cases. In response, the bureau has distributed explicit instructions that "you can't gather full credit reports in counterintelligence cases," a senior FBI official said.

In 10 additional investigations, FBI agents used NSLs to request other information that the relevant laws did not allow them to obtain. Officials said that, for example, agents might have requested header information from e-mails -- such as the subject lines -- even though NSLs are supposed to be used to gather information only about the e-mails' senders and the recipients, not about their content.

The FBI audit also identified three dozen violations of rules requiring that NSLs be approved by senior officials and used only in authorized cases. In 10 instances, agents issued National Security Letters to collect personal data without tying the requests to specific, active investigations -- as the law requires -- either because, in each case, an investigative file had not been opened yet or the authorization for an investigation had expired without being renewed.

FBI officials said the audit found no evidence to date that any agent knowingly or willingly violated the laws or that supervisors encouraged such violations. The Justice Department's report estimated that agents made errors about 4 percent of the time and that third parties made mistakes about 3 percent of the time, they said. The FBI's audit, they noted, found a slightly higher error rate for agents -- about 5 percent -- and a substantially higher rate of third-party errors -- about 10 percent.

The officials said they are making widespread changes to ensure that the problems do not recur. Those changes include implementing a corporate-style, continuous, internal compliance program to review the bureau's policies, procedures and training, to provide regular monitoring of employees' work by supervisors in each office, and to conduct frequent audits to track compliance across the bureau.

The bureau is also trying to establish for NSLs clear lines of responsibility, which were lacking in the past, officials said. Agents who open counterterrorism and counterintelligence investigations have been told that they are solely responsible for ensuring that they do not receive data they are not entitled to have.

The FBI audit did not turn up new instances in which another surveillance tool known as an Exigent Circumstance Letter had been abused, officials said. In a finding that prompted particularly strong concerns on Capitol Hill, the Justice Department had said such letters -- which are similar to NSLs but are meant to be used only in security emergencies -- had been invoked hundreds of times in "non-emergency circumstances" to obtain detailed phone records, mostly without the required links to active investigations.

Many of those letters were improperly dispatched by the bureau's Communications Analysis Unit, a central clearinghouse for the analysis of telephone records such as those gathered with the help of "exigent" letters and National Security Letters. Justice Department and FBI investigators are trying to determine if any FBI headquarters officials should be held accountable or punished for those abuses, and have begun advising agents of their due process rights during interviews.

The FBI audit will be completed in the coming weeks, and Congress will be briefed on the results, officials said. FBI officials said each potential violation will then be extensively reviewed by lawyers to determine if it must be reported to the Intelligence Oversight Board, a presidential panel of senior intelligence officials created to safeguard civil liberties.

The officials said the final tally of violations that are serious enough to be reported to the panel might be much less than the number turned up by the audit, noting that only five of the 22 potential violations identified by the Justice Department's inspector general this spring were ultimately deemed to be reportable.

"We expect that percentage will hold or be similar when we get through the hundreds of potential violations identified here," said a senior FBI official, who spoke on the condition of anonymity because the bureau's findings have not yet been made public.


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