Cheney Defends Eavesdropping Without Warrants

In his first discussion of the underpinnings of the Bush administration's decision to eavesdrop without warrants on communications from the United States to other countries, Vice President Dick Cheney on Tuesday cast the action as part of a broader effort to reassert powers of the presidency that he said had been dangerously eroded in the years after Vietnam and Watergate.

Talking with reporters on Air Force Two as he flew from Pakistan to Oman, Mr. Cheney spoke in far broader terms about the effort to expand the powers of the executive than President Bush did on Monday during an hourlong news conference.

''I believe in a strong, robust executive authority, and I think that the world we live in demands it,'' said Mr. Cheney, who was in many ways the intellectual instigator of the rapid expansion of presidential authority as soon as Mr. Bush took office.

Mr. Cheney directly linked the effort to bolster the president's wartime authority to the nation's safety since the Sept. 11, 2001, attacks.

''You know,'' he said, ''it's not an accident that we haven't been hit in four years.''

On Tuesday, he made no effort to play down his central role in exercising those powers, citing his early battle to keep private the names of people he consulted while drawing up recommendations for Mr. Bush on energy policy. That effort was ultimately upheld in the courts.

Mr. Cheney appears to have been the first senior administration official to brief a few Congressional leaders on the program and the underlying technology that have permitted the National Security Agency to find and immediately tap into ''hot numbers'' -- telephone calls and e-mail messages that are suspected of containing communications between terror suspects in the United States and abroad.

Ordinarily, any tap that involves one party inside the United States has required obtaining a warrant from a secret court that oversees the enforcement of the Foreign Intelligence Surveillance Act -- itself an effort to address abuses that occurred during the Watergate scandal.

Mr. Cheney was unapologetic about circumventing the legal protections, echoing President Bush's declarations that it was an appropriate use of executive authority and going further than Mr. Bush by insisting that it had prevented subsequent attacks.

''The fact of the matter is this is a good, solid program,'' he said on CNN during his stopover in Pakistan. ''It has saved thousands of lives. We are doing exactly the right thing, we are doing it in accordance with the Constitution of the United States and it ought to be supported. This is not about violating civil liberties, because we're not.''

The Washington Post stated Tuesday night that Judge James Robertson of the secret Foreign Intelligence Surveillance Court had resigned, reportedly in protest of the administration's surveillance program.

Judge Robertson would not comment on his resignation, The Post said, reporting that he notified Chief Justice John G. Roberts of his decision late Monday night in a letter that did not give a reason for leaving the court. The article said two associates of Judge Robertson said he had privately expressed concern about the legality of the surveillance program and about whether it tainted the work of the court.

Having served in Congress and as chief of staff to President Gerald R. Ford -- a period when he first became concerned about infringements on presidential power -- Mr. Cheney said he believed the pendulum had swung back too far after the Nixon resignation.

After expressing respect for the powers of Congress, Mr. Cheney told reporters, ''But I do believe that especially in the day and age we live in, the nature of the threats we face, the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy.''

He described the War Powers Resolution, passed in 1973 in a post-Vietnam effort by Congress to prevent the president from committing troops without sharp Congressional oversight, as ''an infringement on the authority of the presidency'' and suggested it could be unconstitutional.

''Watergate and a lot of the things around Watergate and Vietnam both during the 70's served, I think, to erode the authority I think the president needs to be effective, especially in the national security area,'' Mr. Cheney said.

His philosophy on the wiretap issues and detention and interrogation policy took legal form in a series of memorandums and briefs, many of them written by John C. Yoo, then a deputy assistant attorney general in the Office of Legal Counsel at the Justice Department.

Professor Yoo, a legal scholar from Boalt Hall, the law school at the University of California, Berkeley, has told friends he was taken aback when he became the best-known proponent of pushing the envelope of presidential powers.

But many of the documents he and his colleagues wrote described broad and unilateral executive power to combat terrorism, including detaining people without charge indefinitely, subjecting detainees to harsh interrogations and eavesdropping without first obtaining warrants, under some conditions.

For example, in a Sept. 21, 2001, memorandum, Bush administration lawyers said eavesdropping on telephone calls and e-mail messages without a court's permission could be proper notwithstanding the ban in the Fourth Amendment on unreasonable searches and seizures.

''The government may be justified,'' Mr. Yoo wrote in the memorandum, ''in taking measures which in less troubled conditions could be seen as infringements of individual liberties.''

Four days later, he wrote that Congress could not place ''limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response.''

''These decisions,'' wrote Mr. Yoo, who left the administration two years ago, ''under our Constitution, are for the president alone to make.''

Mr. Bush and Mr. Cheney in the past two days have drawn on that theory as they have pointed to two basic sources of legal power. The first is in Article II of the Constitution, which vests the ''executive power'' in the president and makes him commander in chief of the military. Mr. Cheney discussed that at length on Tuesday. The second is Congressional authorization to use military force in response to Sept. 11.

''When we were hit on 9/11,'' Mr. Cheney said, President Bush ''was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done.''

At another point he noted that ''the 9/11 commission criticized everybody in government because we didn't connect the dots.''

''Now we are connecting the dots, and they're still complaining,'' Mr. Cheney continued. ''So it seems to me you can't have it both ways.''

But it is not clear that either of those sources of legal authority fully supports all aspects of the administration's view of executive power. "Broad claims of authority and broad claims of illegality are equally suspect,'' said Douglas W. Kmiec, a law professor at Pepperdine University.

Geoffrey R. Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency. ''Some legal questions are hard,'' Professor Stone said. ''This one is not. The president's authorizing of N.S.A. to spy on Americans is blatantly unlawful.''

Mr. Cheney, unsurprisingly, took the opposite view, noting that he had been expressing his views on the subject as far back as 1987, when, as a Republican congressman from Wyoming, he contributed to the minority views in the Congressional report on the Iran-contra affair.

''Part of the argument in Iran-contra was whether or not the president had the authority to do what was done in the Reagan years,'' he said. ''And those of us in the minority wrote minority views that were actually authored by a guy working for me, one of my staff people, that I think are very good at laying out a robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters.''

Asked if the proper balance had been restored under Mr. Bush, he said, ''I do think it's swung back.''

Mr. Cheney suggested that Democrats who pushed to trim the powers of the presidency in the wake of the disclosure of the eavesdropping program would pay a political price.

''Either we're serious about fighting the war on terror or we're not,'' he said.

Photos: Vice President Dick Cheney and his wife, Lynne, boarding a flight yesterday from Pakistan to Oman. (Photo by B.K. Bangash/Associated Press); Mr. Cheney giving an interview on a stopover yesterday in Pakistan. (Photo by Lawrence Jackson/Agence France-Presse -- Getty Images)

(12.21.2005, Richard W. Stevenson and Adam Liptak; Richard W. Stevenson reported from Muscat, Oman, for this article, and Adam Liptak from New York. Neil A. Lewis contributed reporting from Washington.)


Cheney Defends Electronic Surveillance of Suspected Al Qaeda Intimates

WASHINGTON —  Vice President Dick Cheney warned Wednesday that despite the passage of more than four years since Sept. 11, 2001, the threat of terrorism inside the United States remains serious.

Cheney added that strong measures taken by the Bush administration are one reason no more attacks have occurred, and defended the president's use of electronic surveillance to listen in on terrorists.

"There are no communications more important to the safety of the United States than those related to Al Qaeda that have one end in the United States," Cheney said.

Click into the video tab to the right to watch a report by FOX News' Jim Angle.

The vice president argued that had the United States been able to track communications like this before Sept. 11, officials might have picked up overseas calls of two of the hijackers who flew into the Pentagon.

Cheney said as time passes and Sept. 11 becomes more distant a memory, it's a natural impulse to play down the threats faced from terrorism.

"Obviously, no one can guarantee that we won't be hit again. But neither should anyone say that the relative safety of the last four years was an accident. America has been protected not by luck but by sensible policy decisions," Cheney said.

Cheney was making reference to the president's decision, among other things, to authorize more vigorous eavesdropping, which Bush described over the weekend in very simple terms.

"If somebody from Al Qaeda is calling you, we'd like to know why," the president said.

But Sen. Russ Feingold, D-Wis., told reporters on a conference call Wednesday that the president does not have the power to allow the kind of domestic surveillance he has authorized.

"What we're not open to is the president deciding on his own that he ought to make up a law because he's frustrated that he can't do whatever he wants. That is unacceptable," said Feingold, who voted against the Patriot Act in 2001.

Feingold argued that in both debate over the Patriot Act and the controversy over eavesdropping by the National Security Administration, the administration pays too little attention to civil liberties.

"They are just saying it has to be exactly their way and showing essentially no sensitivity to the freedom and civil liberties issues that members of both parties have raised in the Senate," he said.

But Cheney insists the program is legal and noted that he served in the Ford administration just after President Nixon was forced to resign in part for eavesdropping on political opponents.

Cheney said Ford and others worked hard to protect civil liberties and that Bush is just as concerned.

"He has made clear from the outset, both publicly and privately, that our duty to uphold the law of the land admits no exceptions in wartime. The president himself put it best: He said, 'We are in a fight for our principles and our first responsibility is to live by them,'" he said.

But even before Bush authorized the new program, then-NSA chief Michael Hayden expanded surveillance of terrorists.

Just three weeks after the attacks, he asked to brief the House Intelligence Committee, and according to letters by House Minority Leader Nancy Pelosi, D-Calif., that she got declassified, Hayden told lawmakers he was taking "an expansive view" of his authority to conduct electronic surveillance. Pelosi raised questions about that position in her letters.

"I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting," she wrote.

Hayden sent a letter to Pelosi 10 days later apologizing for any confusion and saying he was attempting to emphasize that he had "used his authorities to adjust NSA's collection and reporting."

A short time after the letter, the president did give the NSA authorization to expand further its monitoring of terrorist communications. Pelosi expressed concerns about that, too.

Now, Rep. Jane Harman, D-Calif., the ranking Democrat on the House Intelligence Committee, is telling the White House that it is obligated under the law to brief the entire committee on the new program, which is already likely to be the subject of one or more hearings. (1.05.2006),2933,180638,00.html

Click into the video tab above to watch a report by FOX News' Jim Angle


Cheney Cites Justifications For Domestic Eavesdropping

Secret Monitoring May Have Averted 9/11, He Says

Vice President Cheney said yesterday that the Sept. 11, 2001, terrorist attacks might have been prevented if the Bush administration had had the power to secretly monitor conversations involving two of the hijackers without court orders

As part of an effort to sell Americans on the administration's recently disclosed program to eavesdrop on telephone and e-mail communications between the United States and people overseas without a warrant, Cheney told a small group of conservatives at the Heritage Foundation that instead of being able to "pick up" on the terrorist plot "we didn't know they were here plotting until it was too late."

But Cheney did not mention that the government had compiled significant information on the two suspects before the attacks and that bureaucratic problems -- not a lack of information -- were primary reasons for the security breakdown, according to congressional investigators and the Sept. 11 commission. Moreover, the administration had the power to eavesdrop on their calls and e-mails, as long as it sought permission from a secret court that oversees clandestine surveillance in the United States.

The bigger problem was that the FBI and other agencies did not know where the two suspects -- Cheney's office confirmed that he was referring to Nawaf Alhazmi and Khalid Almihdhar -- were living in the United States and had missed numerous opportunities to track them down in the 20 months before the attacks, according to the Sept. 11 commission and other sources.

In his speech, scheduled as part of a White House offensive to defend the recently disclosed surveillance program, Cheney painted an ominous portrait of U.S. security without the controversial practice. Critics said the surveillance has been unconstitutional, carried out without explicit congressional approval or court oversight. The administration said it gained broad powers from a congressional resolution after Sept. 11.

Cheney said the National Security Agency program, combined with the expanded surveillance powers authorized by the USA Patriot Act, has saved lives -- and thwarted terrorist attacks.

"No one can guarantee that we won't be hit again, but neither should anyone say that the relative safety of the last four years came as an accident," Cheney said. "America has been protected not by luck but by sensible policy decisions."

Under a secret order signed by President Bush after Sept. 11, the NSA was freed from its normal restraints and allowed to eavesdrop on the international communications of U.S. citizens and residents. Bush and other administration officials have said the spying has been limited to cases involving suspected al Qaeda associates here or overseas. "This wartime measure is limited in scope to surveillance associated with terrorists," Cheney said.

A few hours earlier, Bush met with Defense Secretary Donald H. Rumsfeld and other top officials at the Pentagon and offered an optimistic appraisal of progress in Iraq and the broader terrorism fight. Bush highlighted the recent decision to slightly reduce troop levels in Iraq and suggested that additional withdrawals could come this year.

"Later this year, if Iraqis continue to make progress on the security and political sides that we expect, we can discuss further possible adjustments with the leaders of a new government in Iraq," Bush said. The White House is planning speeches in the next few weeks to highlight progress in Iraq and defend the spying program, which has come under heavy criticism from Democrats and some Republicans. The program is expected to be scrutinized in hearings later this month.

Cheney said if the administration had the power "before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon."

Even without the warrantless domestic spying program, however, the NSA and other U.S. intelligence agencies had important clues about the Sept. 11 plot and the hijackers before the attacks, according to media reports and findings by Congress and the commission. Washington Post Staff Writers
Thursday, January 5, 2006 By Jim VandeHei and Dan Eggen

For example, the NSA intercepted two electronic messages on Sept. 10, 2001, that warned of the attacks -- but the agency failed to translate them until Sept. 12. The Arabic-language messages said "The match is about to begin" and "Tomorrow is zero hour," intelligence officials said.

Hoffman also said Cheney's comments ignore the breadth of the government failures before the attacks, which were due to structural problems rather than a single missed lead.

"It's not that legislation was lacking; it was a systemic failure," he said.

U.S. intelligence sources have said that NSA analysts were unsure who was speaking on the intercepts but that they were considered a high enough priority for translation within two days.

Cheney's apparent reference to Alhazmi and Almihdhar is also incomplete, leaving out the fact that several government agencies had compiled significant information about the duo but had bungled efforts to track them.

According to the Sept. 11 commission's report, released in 2004, the NSA first identified Alhazmi and Almihdhar in December 1999, passing the information to the CIA but conducting no further research.

In 2000, the CIA failed to place Alhazmi and Almihdhar on a watch list despite their ties to a terrorist summit in Malaysia. The CIA also mishandled efforts to follow them after the summit and failed to share information about them with the FBI, including the crucial fact that both men had U.S. visas, the commission found.

By late August 2001, the FBI finally had information that Almihdhar had recently entered the United States. But the search for the suspected al Qaeda operative was treated as routine and assigned to a rookie agent, according to the commission report.

Bruce Hoffman, a terrorism expert who heads Rand Corp.'s Washington office, said it is unclear what communications could have been intercepted if the FBI and other agencies did not know where Alhazmi and Almihdhar were. (1.05.2006, Jim VandeHei and Dan Eggen)

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"A society whose citizens refuse to see and investigate the facts, who refuse to believe that their government and their media will routinely lie to them and fabricate a reality contrary to verifiable facts, is a society that chooses and deserves the Police State Dictatorship it's going to get." Ian Williams Goddard

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