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Politics : American Presidential Politics and foreign affairs -- Ignore unavailable to you. Want to Upgrade?

To: Peter Dierks who wrote (23834)	11/1/2007 12:24:37 AM
From: Peter Dierks	Read Replies (1) \| Respond to of 71588

Surveillance Sanity Companies that help protect the U.S. against attack deserve immunity from frivolous lawsuits. BY BENJAMIN CIVILETTI, DICK THORNBURGH AND WILLIAM WEBSTER Wednesday, October 31, 2007 12:01 a.m. EDT Following the terrorist attacks of Sept. 11, 2001, President Bush authorized the National Security Agency to target al Qaeda communications into and out of the country. Mr. Bush concluded that this was essential for protecting the country, that using the Foreign Intelligence Surveillance Act would not permit the necessary speed and agility, and that he had the constitutional power to authorize such surveillance without court orders to defend the country. Since the program became public in 2006, Congress has been asserting appropriate oversight. Few of those who learned the details of the program have criticized its necessity. Instead, critics argued that if the president found FISA inadequate, he should have gone to Congress and gotten the changes necessary to allow the program to proceed under court orders. That process is now underway. The administration has brought the program under FISA, and the Senate Intelligence Committee recently reported out a bill with a strong bipartisan majority of 13-2, that would make the changes to FISA needed for the program to continue. This bill is now being considered by the Senate Judiciary Committee. Public disclosure of the NSA program also brought a flood of class-action lawsuits seeking to impose massive liability on phone companies for allegedly answering the government's call for help. The Intelligence Committee has reviewed the program and has concluded that the companies deserve targeted protection from these suits. The protection would extend only to activities undertaken after 9/11 until the beginning of 2007, authorized by the president to defend the country from further terrorist attack, and pursuant to written assurances from the government that the activities were both authorized by the president and legal. We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk. The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society's capacity to defend itself. This concern is particularly acute for our nation's telecommunications companies. America's front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the "early warning" system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged. Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government's call for help. From its earliest days, the common law recognized that when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help and should be immune from being hauled into court unless it was clear beyond doubt that the public official was acting illegally. Because a private person cannot have all the information necessary to assess the propriety of the government's actions, he must be able to rely on official assurances about need and legality. Immunity is designed to avoid the burden of protracted litigation, because the prospect of such litigation itself is enough to deter citizens from providing critically needed assistance. As the Intelligence Committee found, the companies clearly acted in "good faith." The situation is one in which immunity has traditionally been applied, and thus protection from this litigation is justified. First, the circumstances clearly showed that there was a bona fide threat to "national security." We had suffered the most devastating attacks in our history, and Congress had declared the attacks "continue to pose an unusual and extraordinary threat" to the country. It would have been entirely reasonable for the companies to credit government representations that the nation faced grave and immediate threat and that their help was needed to protect American lives. Second, the bill's protections only apply if assistance was given in response to the president's personal authorization, communicated in writing along with assurances of legality. That is more than is required by FISA, which contains a safe-harbor authorizing assistance based solely on a certification by the attorney general, his designee, or a host of more junior law enforcement officials that no warrant is required. Third, the ultimate legal issue--whether the president was acting within his constitutional powers--is not the kind of question a private party can definitively determine. The companies were not in a position to say that the government was definitely wrong. Prior to FISA's 1978 enactment, numerous federal courts took it for granted that the president has constitutional power to conduct warrantless surveillance to protect the nation's security. In 2002, the FISA Court of Review, while not dealing directly with the NSA program, stated that FISA could not limit the president's constitutional powers. Given this, it cannot be said that the companies acted in bad faith in relying on the government's assurances of legality. For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government's call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government's actions are legal. Given the threats we face in today's world, this would be a perilous policy. Mr. Civiletti was U.S. attorney general under President Jimmy Carter, Mr. Thornburgh was U.S. attorney general under President George H.W. Bush and Judge Webster is former director of the CIA and former director of the FBI. opinionjournal.com

To: Peter Dierks who wrote (23834)	11/2/2007 6:05:11 PM
From: Peter Dierks	Respond to of 71588

Mukasey and the Democrats Their real target is antiterror interrogation. Friday, November 2, 2007 12:01 a.m. EDT Democrats welcomed Michael Mukasey as a "consensus choice" for Attorney General only weeks ago, but incredibly his confirmation is now an open question. The judge's supposed offense is that he has refused to declare "illegal" a single interrogation technique that the CIA has used on rare occasions against mass murderers. All of the Democratic Presidential candidates have come out against the distinguished judge, and Democrats on the Judiciary Committee appear ready to block his nomination from even reaching the Senate floor. This is remarkable not for what it says about Judge Mukasey but for what it reveals about Democrats and the war on terror. They'd disqualify a man of impeccable judicial temperament and credentials merely because he's willing to give U.S. interrogators the benefit of the legal doubt before he has top-secret clearance. Could there be a clearer demonstration of why voters don't trust Democrats with national security? In the war against al Qaeda, interrogation and electronic surveillance are our most effective weapons. Yet Democrats have for years waged a guerrilla war against both of these tools, trying to impose procedural and legal limits that can only reduce their effectiveness. Judge Mukasey is merely collateral damage in this larger effort. Their immediate political figleaf is that the judge won't pre-emptively declare "waterboarding," or simulated drowning, to be illegal. Mr. Mukasey has declared that torture "violates the law and the Constitution, and the President may not authorize it as he is no less bound by constitutional restrictions than any other government official." But he refuses to say whether waterboarding meets the statutory definition of torture based only on "hypothetical facts and circumstances." This seems fair enough given that he has not been briefed on any of the classified interrogation details (as top Congressional Democrats have been). It also seems wise given that, if confirmed, he will have to read and consider legal memoranda already approved by Justice Department officials on the same subject. How can he declare himself before he's read them? Most important, his discretion serves the American people by helping to keep our enemies in some doubt about what they will face if they are captured. The reason that CIA interrogation methods are kept highly classified is so that enemy combatants can't use them as a resistance manual. If terrorists know what's coming, they can prepare for it beforehand and better resist. What's really at stake here is whether U.S. officials are going to have the basic tools required to extract information from America's enemies. As CIA Director Michael Hayden pointed out in a speech this week, "the best sources of information on terrorists and their plans are the terrorists themselves." Mr. Hayden added that fewer than 100 captives "have gone through the interrogation program since it began in 2002 with the capture of Abu Zubaydah," a top aide to Osama bin Laden and 9/11 plotter. Yet those interrogations have generated "thousands of intelligence reports." More than 70% of the human intelligence that makes it into formal U.S. intelligence estimates "is based on detainee information." As for waterboarding, it is mostly a political sideshow. The CIA's view seems to be that some version of waterboarding is effective in breaking especially tough cases quickly. Press reports say it has been used only against a few high-value al Qaeda operatives like Khalid Sheikh Mohammed and Zubaydah. As former CIA Director George Tenet points out in his book "At the Center of the Storm," KSM and others never would have talked about "imminent threats against the American people" had they not been dealt with harshly. "I believe that none of these success would have happened if we had had to treat KSM like a white-collar criminal," he writes. If Democrats want to strip the CIA of this tool, then they ought to legislate it openly, not make law under the table through the confirmation process. Congress has twice had the chance to ban or criminalize waterboarding, but it declined to do so in both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. And not for lack of trying: In debating the Military Commissions Act, Ted Kennedy offered a detailed amendment that specifically prohibited waterboarding, as well as other coercive interrogation methods; it lost on the Senate floor, 46-53. The political calculation here is clear: Democrats want to pander to the antiwar war base of their party that doubts we are even in a war, and in any case wants to treat terrorist detainees no differently than a common street felon. Yet they don't want to be responsible for passing a statute that blocks CIA attempts to gain information that could prevent an imminent terrorist attack. So they dodge and employ ambiguous language that the Justice Department must then interpret. And then they try to run Judge Mukasey out of town because he won't do their political work for them. In their less cynical moments, some Democrats will admit that a technique like waterboarding may prevent a future attack in extreme cases. "We ought to be reasonable about this," said one Senator at a hearing in 2004. "I think there are probably very few people in this room or in America who would say that torture should never ever be used, particularly if thousands of lives are at stake. . . . It is easy to sit back in the armchair and say that torture can never be used, but when you are in the foxhole it is a very different deal. And I respect, I think we all respect the fact that the President is in the foxhole every day." He added that all of this should be public in order to have "legitimacy." That Senator? New York Democrat Chuck Schumer, who recommended Judge Mukasey for Attorney General in the first place. Now Mr. Schumer won't say one way or the other whether the judge has his support. If the Democrats reject Mr. Mukasey, it will tell us they simply aren't serious about the realities of the war on terror. opinionjournal.com

To: Peter Dierks who wrote (23834)	11/2/2007 6:15:00 PM
From: Peter Dierks	Read Replies (1) \| Respond to of 71588

Mukasey Confirmation Looks Likely By EVAN PEREZ November 2, 2007 5:13 p.m. WASHINGTON – Two senior Senate Democrats threw their support behind Michael B. Mukasey's nomination to head the Justice Department, turning the tide and likely assuring his confirmation. Sens. Charles Schumer of New York, and Dianne Feinstein of California, on Friday explained their decision, saying fixing problems and repairing morale at the Justice Department are more important than settling larger political disputes. Concern among some lawmakers over Mr. Mukasey's views on torture, surveillance and presidential power had begun weighing down a nomination that two weeks ago seemed a sure thing. With those key votes, Mr. Mukasey is virtually assured to win endorsement by the Senate Judiciary Committee in a vote Tuesday. He would then face a full Senate vote, where confirmation is highly likely. Earlier Friday, Democratic Sen. Patrick Leahy of Vermont said he would vote against Mr. Mukasey. Mr. Leahy cited Mr. Mukasey's refusal to declare an interrogation technique that simulates drowning, known as waterboarding, as constituting torture. Mr. Schumer of New York had first suggested Mr. Mukasey, a former top federal judge in New York's southern district, as an attorney general pick or even as a Supreme Court justice. The senator had wavered in recent days on whether he would support Mr. Mukasey, but said he was won over after meeting with the former judge Friday. "Judge Mukasey is not my ideal choice," Mr. Schumer said. "However, Judge Mukasey, whose integrity and independence is respected even by those who oppose him, is far better than anyone could expect from this administration." Mr. Mukasey's nomination became bogged down after he declined to declare an interrogation technique that simulates drowning, known as waterboarding, as constituting torture. That dispute reflected a broader one between Congress and the Bush administration over its assertion of broad presidential powers. The administration's legal position is that the president, when faced with a national security threat, has the constitutional authority to disregard certain laws, including ones that ban torture or restrict warrantless surveillance. "I am eager to restore strong leadership and independence to the Department of Justice. I like Michael Mukasey. I wish that I could support his nomination. But I cannot," Mr. Leahy said, according to an excerpt from remarks he planned to deliver Friday. "America needs to be certain and confident of the bedrock principle – deeply embedded in our laws and our values – that no one, not even the president, is above the law." Mr. Mukasey's responses to questions on presidential power have been vague and conditional. That has reminded some Democrats of the former attorney general, Alberto Gonzales, whose sometimes-clumsy defenses of White House legal opinions eroded his credibility among many lawmakers. Mr. Gonzales resigned under pressure in September. Mr. Bush Friday defended Mr. Mukasey and couched his argument in national-security terms. "There's going to be another fight on the Senate floor coming next week," he said in an appearance in South Carolina. Mr. Mukasey is "a good man, he's a fair man, he's an independent man, and he's plenty qualified to be the attorney general. And I strongly urge the United States Senate to confirm this man, so that I can have an attorney general to work with to protect the United States of America from further attack." The president stood alongside Sen. Lindsay Graham, a Judiciary Committee Republican who had previously voiced misgivings over Mr. Mukasey's refusal to take a stand on waterboarding. Sen. Graham has since thrown his support to Mr. Mukasey. Write to Evan Perez at evan.perez@wsj.com online.wsj.com