Friday, December 23, 2005


and Happy Chanukah...and Winter Solstice...and Kwanzaa...and whatever days you'd like to celebrate.

Yes, yes, I know. Christmas and Chanukah are largely made-up holidays. But their spirit is really what's important, not whether the day or days of celebration are historically accurate - which they are not.

So we are taking a few days off in celebration. Have a great one. I'll be back sometime next week.



Hundreds of thousands of Iraqis demonstrated yesterday, alleging election fraud and unfairness during last week's "democratic" elections. Hundreds of thousands. The allegations are various, some alleging Iranian involvement in facilitating outcomes that would be favorable to them.

Regardless of the legitimacy or outcome of these protests, one thing should be clear. The elections, coordinated by the same so-called Americans that seem responsible for the outcomes of "free" democratic elections in our United States since 2000, cannot be held up to the world community as clean and without concern.

This is not the time for outrageous and groundless finger-pointing. Nope, sure ain't. But it also is not the time to rah-rah with support for Bush's supposed success in getting elections done in Iraq, either. Nope, sure ain't. Recall that Iraq had elections under one Saddam Hussein in years past. And those outcomes were NEVER in doubt.

Is it possible that the Bush administration helped rig the Iraq elections do that the religious Shiite coalitions would win? Knowing that the majority of the Iraqi electorate would be appeased by nothing less than their triumph? Even if it suggested the possibility of a broader alignment of a new Iraq with its sister Shiite state, Iran?

Truly, let's state and face facts. Since the American invasion in 2003, tribal animosities amongst Shiite, Sunni, and Kurdish populations within Iraq have greatly intensified. Many commentators and analysts state unequivocably that there was actually very little animosity and hatred amongst the indiginous population prior to the occupation by Bush.

Just as Bush has successfully fanned the flames of "tribal" hatred in America - Republican and neocon vs. Democrats, Evangelical Christian vs. virtually everyone else, Muslim vs. Christian, black vs. white, ultra-rich vs. everyone else, the world vs. Americam policy - he has succeeded in separating Iraqi from Iraqi.

Seems to this observer that the only solution for peace in Iraq at this juncture is a 3-state solution, Sunni, Shiite, and Kurd. And why not? Iraq was a twentieth-century "made up" European state anyway. "We 'fixed' it, we broke it, we should again fix it."

Let's not presume that keeping Iraq together is key to anything. If anything, breaking it up might very likely eliminate the sectarian violence that kills and maims hundreds of Iraqis every month. It would create three states, each of which would wield less geopolitical influence, and create two states with which Bush's oil buddies could negotiate lucrative money-making contracts. Seems like a win-win all around.

Thursday, December 22, 2005


So since the "historic" Iraq elections last week, more than 100 Iraqi civilians have been killed, and more than 60 wounded in ongoing attacks by insurgent forces. Now THAT'S progress!

That's only about twenty a day dying because of the Bush family's thirst for oil profits and crusade for "democracy." Oh about 600 a month, 7,200 a year at that rate. Now THAT'S progress!

So what does the immediate and intermediate future hold?

Based on early election results, it appears likely that George W. Bush has lost the Iraq election. It looks very much like the religion-cloaked Shia parties will have prevailed. They will be charged with forming the new democratic government of Iraq. The Kurds and Sunnis? Losers.

Those voices for a secular government in Iraq, with perhaps a nod to Islam but not a full embracing of it as a basis for the new constitution and management of Iraqi affairs? Sorry, looks like you lost.

If these apparent results hold up, the pundits and observers "in the know" predict civil war, ongoing and increasing rights abuses within Iraq's secret prisons and chambers of torture, etc.

The Shiite religious parties are also close to those high schoolish boys in robes that rule Iran. So that translates into no recognition of Israel, like that really matters anyway, and cozying up to the crazies that think development of nuclear weapons will actually make them safer and their citizens better off.

All this being the case, what great moral cause does it serve to retain American forces in Iraq? Huh? Well, I forgot. Historically we are in the business of providing military support to repressive regimes, worldwide. So why not a religiously governed Iraq that will choose to manage its internal affairs based on long-antiquated , tribal-based Middle Ages rule?

Middle East and other government's declarations that their repressive laws are based on Islamic foundations (of peace, mind you) are as silly and sad as if our so-called Judeo-Christian nations returned to rule by Old Testament standards.

But Fuhrer Bush and his pals have let the chickens out of the henhouse. They will have greatly expanded the autocratic and repressive influence of Iran. They will have supported and encouraged bloodthirsty revenge by Shiite Iraqis upon their Sunni brothers and sisters. And it is likely that the Kurds will engage in a full-time civil war aimed at breaking away from Iraq. Of course, we all know that the United States of Bush will ultimately end up backing whichever side assures them of the best possible oil deal.

I can hear the echoes of "I told you so's" reverberating throughout the United States as the 2006 Congressional elections approach, can't you? We can only hope that Bush begins substantial - and I mean substantial - troop withdrawals long before November 2006. Not because that will make him and the Republicans look good, mind you. But because it is necessary and right.

If we embark on support for a religious Shiite Iraqi government that will have as one of its hallmarks repression, torture, and killing of both Sunni and Shiite opponents, well shame shame shame on us.

Again, dear friends, it is long since time for us to recapture the moral high ground as America. Time to once again make the democratic processes and elections work for us and for the world. Time for journalists and the news media to return to their roles as watchdogs of government and industry rather than lapdogs to advertiser and Wall Street.

I'm sure that the Bush gang will be hard at work over the holidays trying to a) figure out the best way to spin the pending elections doom, and b) how to divert our attention away from Iraq and a failed policy, and perhaps focus us on the "dark side" of democratic forces taking hold in South America - dark because those forces seem to be largely anti-American. Do I smell more napalm in the air?


I am not much for gloating. It's karma thing. As soon as you gloat over someone else's misfortune, well you sow the seeds for your own sorrow down the road. Plus it's just plain not very nice.

But doesn't it feel good, kinda "Christmasy" to see Bush's Congressional losses yesterday?

First he loses the ANWR battle. Nope, sorry, you can't drill in the pristine Alaska Arctic for more family profits, Her Bush. You certainly can't sneak it onto the back of a major Defense Appropriations bill, then try to claim that the Democrats were not in favor of supporting our troops - whom YOU needlessly sent into harm's way.

If you want to drill for more Alaska oil, let the bill stand on its own merits and in the light of day - which you can't because the merits are zero.

Next, he still fails to get the Senate to blanket re-authorize the flawed Patriot Act. Instead, he has to settle for a six-month extension, giving Congress quality time to debate the needed modifications. Bush is now attempting, along with the mainstream media, to paint this eleventh hour extension as a victory. Clearly it isn't. Bush now has to look forward to enduring as much as six-months of publicized and public debate about the Patriot Act upon Congress' return from the holidays. Yippee!

I predict and suspect that we'll see more anti-Bush/pro-American victories in the weeks and months to come. We'll see more revelations about the brewing domestic spying scheme, more revelations about sanctioned torture, the acceptance of bribes among some of Bush's staunchest Congressional supporters. I could go on, but aren't the holidays nice and cozy?

And finally, at least for now, how 'bout dat judge tossing out the teaching of intelligent design in science classes in Dover, PA schools, eh? Really, intelligent design as science. Enuf said.

Again, I am not one for gloating.

Wednesday, December 21, 2005


Not many people are talking these days about the tax cut tyranny that the Bush administration and its Republican slaves have pushed through Congress during his tenure as Fuhrer. But I'd like to revisit them. In the spirit of Christmas, of course. I was moved to provide this information after seeing the Senate pass the Budget Reduction Bill. It not only included numerous tax cuts - for the wealthiest among us, of course - but it included numerous program cuts that will hit the poorest among us the hardest.

Fuhrer Bush has been quick to tout in recent days the job growth that we have seen. He claims that his tax cuts (for the wealthy) have created 4.4 million new jobs. Sorry, Mr. President. Actually let's tell America the real story about jobs growth under your dictatorship, shall we?

Since you took office, Her Fuhrer, the United States has seen non-farm payrolls grow by 2.5 million. Sure you had to deal with a recession. Nevertheless, now stop your whining, in five years, we've seen 2.5 million new jobs. That's a simple average of half-a-million new jobs a year.

So how does that stack up with past presidents?

Well under President Clinton, the last democratically elected president in the United States, we saw over 23 million jobs created. That's an average of 2.9 million new jobs per year.

Hmmmm. 23 million vs. 2.5 million...2.9 million a year vs. half-a-million.

Hell, Mr. Presidente Fuhrer dude. Why we've witnessed unprecedented job growth in China and India since you stole office. Millions of jobs, in fact. And they aren't lawn mowing or fast-food industry, minimum wage jobs, either. Sure wage rates are lower in developing countries, but hey so are costs of living. And given how you continue to attack us middle-class workers and taxpayers, Her Fuhrer, why you might be riving many of us overseas to find some of those jobs.

Your tax cuts are NOT creating new jobs in America, Mr. Presidente. 2.5 million over five years vs. 23 million over eight years. With three years left in your thankfully final term, why you're on track to grow a total of 4 million jobs during your eight-year tenure.

Presidents Reagan and Bush I saw job creation averaging 1.5 million annually during their combined twelve years.

Much maligned President Carter saw job growth average just under 2.8 million annually.

Nixon/Ford saw job growth average more than 1.4 million annually.

Mr. President, you don't know what job growth is!

The following data are from the Center on Budget and Priority Issues.

The highly respected Urban Institute-Brookings Institution Tax Policy Center reports that households with incomes of more than $1 million a year — the richest 0.2 percent of the U.S. population — are receiving tax cuts averaging $103,000 this year, before two new tax cuts that were enacted in 2001 take effect. The Tax Policy Center finds that the two tax-cut measures in question will give these “millionaires” nearly another $20,000 a year in tax cuts, when the measures are phased in fully.

According to the Urban Institute-Brookings Institution Tax Policy Center, a majority of the tax cuts from these two tax-cut measures — 54 percent of these tax cuts, to be precise — will go to the 0.2 percent of households that have annual incomes of more than $1 million a year. These households will receive added tax cuts averaging nearly $20,000 a year from these two tax-cut measures, when the measures are fully in effect.

Some 97 percent of the tax cuts from these two measures will go to the 3.7 percent of households that have incomes of over $200,000 a year.

Virtually none of the tax cuts from these measures will go to families in the middle of the income spectrum.

These tax cuts will phase in fully by 2010. The Joint Committee on Taxation estimates they will reduce revenues by $9 billion in 2010, and by $16 billion in 2015. The ten-year cost of these provisions in the first ten years that they will be fully in effect (2010 through 2019)
will be $146 billion. When the associated interest payments on the debt of $51 billion are added in, the cost rises to $197 billion over this ten-year period.

These issues are examined in more detail below.

Distribution of the Two Tax Cuts, 2010

Income Group
(thousands of 2003 dollars)

Share of Households

Share of the Tax Cuts

Average Tax Cut





















More than $1 million




Source: Urban-Brookings Tax Policy Center.

The Tax Policy Center of the Urban Institute and the Brookings Institution has analyzed these two tax-cut measures. The Tax Policy Center has found:

Some 54 percent of the tax cuts from these two measures will go to households with incomes of more than $1 million a year, the top 0.2 percent of households. Another 43 percent of the tax-cut benefits will go to the 3.5 percent of households with incomes between $200,000 and $1 million. Thus, 97 percent of the tax cuts from these two provisions will go to the 3.7 percent of households with incomes over $200,000.

That leaves only 3 percent of the tax-cut benefits for the 96 percent of U.S. households with incomes below $200,000. That 3 percent of the tax cuts will go almost entirely to households in the $100,000-$200,000 range. Essentially none of the benefits will flow to families with incomes under $100,000 (see table).

High-income households already are receiving extremely large tax cuts without these two new tax-cut measures. According to the Tax Policy Center, households with incomes of more than $1 million are receiving tax cuts that average $103,000 this year, and will receive tax cuts averaging $108,000 in 2010, from the other income-tax cuts included in the 2001 and 2003 tax-cut laws. (The Tax Policy Center estimates that when the effects of repeal of the estate tax are taken into account, those in this very high income group will receive tax cuts averaging $133,000 in 2010 from tax cuts other than the two measures discussed here.) The Tax Policy Center’s analysis shows that adding in the two tax-cut provisions slated to start taking effect in 2006 will bring the total tax cut for people with incomes over $1 million to $152,000, on average, in 2010. (These figures are in 2010 dollars.)


This morning, the Fuhrer again lied to the American people - and for that matter, the God that he is always so quick to proclaim as so important to his life.

Last week, the Senate stopped debate and refused to vote for renewal of the soon-to-be expire Patriot Act. It required a majority vote, in this case 52-47, to deny the vote. A MAJORITY VOTE, MR. PRESIDENT! A MAJORITY VOTE, MR. PRESIDENT!

Der Fuhrer continues to focus our attention on the Senate fillibuster over the Patriot Act. A fillibuster, DUH! as would always be the case, that IS led by a minority of Senators, yes.

But it is not really the fillibuster that is blocking renewal or extension of this onerous Act. It is primarily, in fact, last week's late breaking news that Bush has been using the National Security Agency to spy on Americans OUTSIDE of and in VIOLATION of American law.

Constitutional attorney after attorney has interpreted the President's actions a felonious and probably impeachable offenses - though the likelihood that a republican Congress would actually take impeachment action against their own Fuhrer is about as likely as an elephant sprouting wings and flying.

WAKE UP, PLEASE! This so-called President, and his minions, embody evil in the guise of a good Christian follower. They give needless tax cuts to the wealthy while slashing programs that service and support the poor. They engage in unconsciounable and unprovoked wars against other countries and kill tens of thousands of innocent civilians. They support worldwide pollution and destruction of the planet.


The Fuhrer wants to change our focus away from his crimes against humanity and yes, us Americans too. He wants us to believe that the debate of the day is the paramount need to approve Patriot Act renewal prior to its expiration at yearend, as if no Patriot Act in place for a few days or even weeks would really jeopardize America's security.

Come on, Mr. President. How naive do you think that we all are? You've been listening in on Americans - illegally - for the past four years! Does anyone really believe that expiration of the Patriot Act will prevent whatever interagency activities have been taking place? Come on now.

Tuesday, December 20, 2005


I'm all confused over this domestic spying/wiretapping/Patriot Act/FISA business. First it's one thing, then another.

I guess I'd do better if I just blindly trust what my President tells me. So here's what he has told me:

Remarks by the President at Kleinshans Music Hall, Buffalo, New York on April 20, 2004
September the 11th -- when the President says something, he better mean it. See, in order to make the world more peaceful, it's essential that those of us in positions of high responsibility speak clearly and mean what we say...

When the President speaks, he better mean it...

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

Right then, my Presidente. Now I'm clear. You're sayin' so you have to get a court order in order to wiretap. Because we value the Constitution. Uh huh.

Remarks by the President on "The News Hour with Jim Lehrer" on December 16, 2005"

"I will make this point. That whatever I do to protect the American people, and I have an obligation to do so, that we will uphold the law, and decisions made are made understanding we have an obligation to protect the civil liberties of the American people."

And on December 17, 2005:
President Bush acknowledged on Saturday that he had ordered the National Security Agency to conduct an electronic eavesdropping program in the United States without first obtaining warrants, and said he would continue the highly classified program because it was "a vital tool in our war against the terrorists."

December 19, 2005 during a news conference:
"Congress gave me authority..."

Vice President of Torture Dick Cheney, December 20, 2005:
"Watergate and a lot of the things around Watergate and Vietnam, both during the 1970s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area,"
Cheney told reporters traveling with him on Air Force Two. "Especially in the day and age we live in … 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."

"The president and I believe very deeply that there is a hell of a threat,"
Cheney said, calculating that "the vast majority" of Americans supported the administration's surveillance policies.

"It's good, solid, sound policy," the vice president added. "It's the right thing to do."

President Bush on December 19, 2005:
"So, consistent with U.S. law and the Constitution, I authorize the interception of international communications of people with known links to al Qaeda and related terrorist organizations.

"We use FISA still. You're referring to the FISA accord in your question. Of course we use FISAs.

"But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.

"And having suggested this idea, I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.

"As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress."

Point of fact, folks. There exists no law in the United States that gives the President authority to engage in domestic spying in the manner in which he has been conducting it. The President lies when he claims legal justification. He lies when he said as recently as April 2004 that "When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."


The Bush administration and its oil industry family are so concerned about reducing America's reliance on foreign energy sources that it doesn't seem enough for them to keep hands off the automobile industry - the most important consumer of oil - allowing them to forgoe the widespread incorporation of fuel efficiency technology.

Nope. The National Renewable Energy Laboratory (or NERL) in Golden, Colorado must lay off as many as 100 scientists and researchers, or 11 percent of its staff, beginning in January. NERL does (did?) research into wind, biomasss, solar and hydrogen technologies.

Why? Congress has cut about $20 million of their 2006 funding, 10 percent of their $200 million budget.

In fiscal 2006, Congress cut the Department of Energy's budget for all renewable energy programs by more than 35 percent.

AND Congress dropped a plan to speed up oil-shale development in western Colorado, Utah and Wyoming. I can certainly understand that. Western oil-shale resources are estimated to hold more than a trillion barrels of recoverable oil, more than the world has consumed in the past 150 years. Put that stuff on the market, even if you are talking 15-20 years out for truly large scale production, and you might kiss unlimited price hikes for the commodity goodbye. And we all know how that would dent the profit pockets of Bush's family and friends. Oh and that includes our bestest friends in the whole universe, the Saudi royal family.

Monday, December 19, 2005


This morning, President Bush took advantage of his press conference pulpit to ridicule "a minority of Senators" for last Friday's failure ton reauthorize the Patriot Act. It is due to expire at the end of this month.

"A minority of Senators?" Hmmmm....The Senate voted 52-47 to block reauthorization and allow a fillibuster to proceed. Republicans joined Democrats.

So what prompted the action? Bush would have us believe that it was some form of naive, partisan political action on the part of a few Democrats that just want to block anything Bush supports. Nothing can be further from the truth.

The recent disclosures and bipartisan concerns over domestic spying, unchecked by the judiciary - despite what Bush claimed during his press conference - spurred enough concern about proposed modification/renewal of the Patriot Act that the Senate acted with all due prudence. Senators were willing to enact a ninety-day extension of the existing Act, during which further debate might lead to clarification of the outstanding issues. However the extension is not yet agreed upon. Such is the bipartisan concern over the President's dictatorial actions that he and his friends have cloaked in "9/11!"

9/11 9/11 9/11 9/11!!!!!!!!!!!!! If you want to tighten the screws on people in America, all you have to shout is 9/11!

Mr. President, even some of your own former Republican neocon loyalists are breaking ranks with your "9/11" mantra of rationalization.

Bush keeps telling us that there is still an enemy, and that they still want to strike us, and they are very dangerous. OOOOH SCAREEEEEEEYYYYYYYY!

No shit, Mr. President.

That is no justification for domestic spying without judicial oversight. The argument shouldn't be about the Constitutionality of FISA. It should be about Bush's end-around of FISA. Bush, in his press conference, claimed that some spying just needed to be done outside of FISA because, as he claimed, FISA was just too slow. LIE LIE LIE. FISA has always had provisions to permit domestic spying without prior court warrant. It's just that at some point, Mr. President, under FISA you would have to justify to the FISA Court just why that spying was taking place. Do you have a problem with that, Mr. President? Do you have a problem with the U.S. Constitution? Do you have a problem being answerable to the American people?


December 19, 2005

Study Shows the Superrich Are Not the Most Generous

Working-age Americans who make $50,000 to $100,000 a year are two to six times more generous in the share of their investment assets that they give to charity than those Americans who make more than $10 million, a pioneering study of federal tax data shows.

The least generous of all working-age Americans in 2003, the latest year for which Internal Revenue Service data is available, were among the young and prosperous - the 285 taxpayers age 35 and under who made more than $10 million - and the 18,600 taxpayers making $500,000 to $1 million. The top group had on average $101 million of investment assets while the other group had on average $2.4 million of investment assets.

On average these two groups made charitable gifts equal to 0.4 percent of their assets, while people the same age who made $50,000 to $100,000 gave gifts equal to more than 2.5 percent of their investment assets, six times that of their far wealthier peers.

Investment assets measures the value of stocks, bonds and other investments assets held in the tax system. Excluded from this are retirement accounts, which are generally held outside the tax system, personal property like furniture and art and equity in homes.

The I.R.S. data was analyzed by the NewTithing Group, a San Francisco-based philanthropic research organization that since 1998 has been encouraging the most prosperous Americans to give more. The full report was posted last night at

Tim D. Stone, the president of New Tithing, said that taxpayers who itemize took $148.4 billion in deductions for charitable gifts in 2003. The American Association of Fundraising Counsel, an organization of companies that advise charities on seeking donations, estimates giving by all Americans, including those who file simple tax returns, was $180.6 billion.

The study used unpublished I.R.S. data from 180,000 tax returns to analyze giving by income, assets, gender, marital status and age. It found that disparities in giving by income class declined once taxpayers reach age 65, but it also found that as Americans grew older their giving as a share of their investment assets also generally declined.

Among those 35 and younger, those making under $200,000 made gifts equal to 1.87 percent of their assets, a figure that fell to 0.5 percent for the 189,000 taxpayers making $200,000 to $10 million and to 0.4 percent for the 285 taxpayers making more than $10 million.

Americans age 36 to 50 making under $200,000 gave less.

Those making $50,000 to $100,000 made gifts equal to nearly 2 percent of their investment assets, compared with less than 1 percent for those making $200,000 to $10 million.

But those with income greater than $10 million, whose investments averaged $81 million, made gifts equal to 1.54 percent of their assets. This makes these middle-aged givers more than three times as generous as their wealthier and younger peers, who gave at a rate of 0.4 percent.

Americans ages 51 to 64 gave in an almost identical pattern to those 36 to 50. But among those 65 and older, the pattern changed.

The superrich, with incomes of $10 million or more and average assets of $214 million, made gifts equal to 1.5 percent of their assets. But all the income groups below them gave at a rate of less than 1 percent. For those making $50,000 to $100,000, gifts average 0.8 percent, down sharply from the giving rates of younger people with the same income.

The study also found that single men, generally, are more generous than single women. Among the wealthiest singles, men gave 1.5 percent of assets compared with 1.1 percent for women. Wealth does not explain the disparity.

Single men in the top income group, $10 million or more, had average investment assets of $124.7 million; the women averaged $244 million.

Even though the wealthiest women gave at a lower rate than the wealthiest men, in dollar terms the women, who were far wealthier, gave more. The 247 women gave an average of $2.68 million each compared with $1.95 million for the 655 wealthiest men.

Are Seniors More Charitable?

First Ever IRS-based Report On Charitable Giving by Age

San Francisco – December 19, 2005 – Affluent income tax filers under age sixty-five are only half as generous as their more modestly situated peers, according to a new report by NewTithing Group, a philanthropic research organization and developer of donor education tools. The report found no such generosity gap amongst seniors of different wealth levels.

If affluent young and middle-aged filers had donated as high a proportion of their investment asset wealth to charity in 2003 as did their less affluent peers, concludes the report, total individual charitable donations would have been over $25 billion higher that year, an increase of at least 17%.

NewTithing Group's five-part report, The Demographics of Charitable Giving, represents the first ever IRS-based analysis of giving by assets, age, number of dependents, tax filer status, and gender. Derived from over one quarter of a million individual tax returns, the report was based on unpublished tabulations from the Individual Statistics of Income File for tax-year 2003, the latest year for which data is available.

According to NewTithing Group, measuring charitable donations as a proportion of investment assets provides a meaningful gauge of generosity amongst the upper middle class and the affluent, whose investment assets generally exceed their income.


The following important content is from the Electronic Frontier Foundation. Necessary reading before fully understanding the recent controversy over domestic spying.

Foreign Intelligence Surveillance Act

Frequently Asked Questions (and Answers)

Prepared by Lee Tien, Electronic Frontier Foundation Senior Counsel, Sep. 27, 2001

1. What is FISA?

FISA is the Foreign Intelligence Surveillance Act, which establishes a legal regime for "foreign intelligence" surveillance separate from ordinary law enforcement surveillance. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95- 511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1811, 1821-1829, 1841-1846, 1861-62).

2. What is the purpose of FISA?

FISA is aimed at regulating the collection of "foreign intelligence" information in furtherance of U.S. counterintelligence, whether or not any laws were or will be broken. See 50 U.S.C. § 401(a)(3) (defining "counterintelligence" as information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities). Department of Defense (DOD) guidelines state that the purpose of counterintelligence collection is to detect espionage, sabotage, terrorism, and related hostile intelligence activities to "deter, to neutralize, or to exploit them."

In short, counterintelligence and criminal prosecution are different.

3. How does FISA fit with regulation of electronic surveillance?

Given the "tendency of those who execute the criminal laws . . . to obtain conviction by means of unlawful seizures," the Supreme Court has viewed communications interception as an especially grave intrusion on rights of privacy and speech. Berger v. New York, 388 U.S. 41, 50 (1967) (quotation and citation omitted). "By its very nature eavesdropping involves an intrusion on privacy that is broad in scope," and its "indiscriminate use . . . in law enforcement raises grave constitutional questions." Id. at 56 (quotation and citation omitted). "Few threats to liberty exist which are greater than those posed by the use of eavesdropping devices." Id. at 63.

Thus, the Court outlined seven constitutional requirements: (1) a showing of probable cause that a particular offense has been or is about to be committed; (2) the applicant must describe with particularity the conversations to be intercepted; (3) the surveillance must be for a specific, limited period of time in order to minimize the invasion of privacy (the N.Y. law authorized two months of surveillance at a time); (4) there must be continuing probable cause showings for the surveillance to continue beyond the original termination date; (5) the surveillance must end once the conversation sought is seized; (6) notice must be given unless there is an adequate showing of exigency; and (7) a return on the warrant is required so that the court may oversee and limit the use of the intercepted conversations.

Indeed, the Court said that if "neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements . . . then the 'fruits' of eavesdropping devices are barred under the Amendment." Id., at 63.

Where intelligence operations are concerned, however, the bounds of the Fourth Amendment are less clear than they are for ordinary criminal investigations. FISA creates a special court and legal regime for counterintelligence surveillance orders.

Executive Order 12,333 (1981) provides the general framework for U.S. intelligence activities, and it also addresses electronic surveillance. "[A]gencies are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General." EO 12,333, para. 2.4. Dep't. of Defense (DOD) Directive 5240.1-R implements FISA and EO 12,333 within DOD. These authorities govern the collection of intelligence by the U.S. government against United States persons, whether they are located within the United States or outside the United States.

FISA does not regulate the use of electronic surveillance outside of the United States. For instance, electronic surveillance of electronic communications like e-mail is only governed by §1801(f)(4) if the surveillance device is installed "in the United States." When e-mail sent by a U.S. person to a foreign person is intercepted outside the United States, that interception does not meet this definition.

4. Why is there a special legal regime for "foreign intelligence" surveillance?

The path to FISA has two branches, political and judicial.

The government had long maintained that it had extensive discretion to conduct wiretapping or physical searches in order to protect national security. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court acknowledged that the President had claimed special authority for warrantless surveillance in national security investigations, and explicitly declined to extend its holding to cases "involving the national security." Id. at 358 n. 23. Similarly, Congress in Title III stated that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."

On the political front, such executive branch activities, charitably described as "some degree of domestic overreaching of intelligence into domestic areas," had long been tolerated. Staff of House Permanent Select Comm. on Intelligence, 104th Cong., Staff Study, IC21: Intelligence Community in the 21st Century at 272 (comm. print 1996).

But in the 1970s the political winds changed. The 1975-76 Church Committee hearings documented extraordinary federal government abuse of surveillance powers. Examples included the the NSA's Operation Shamrock and Operation Minaret, CIA's Operation CHAOS, the FBI's COINTELPRO domestic harassment of dissenters and anti-war protesters that included illegal wiretapping, and the illegal burglaries of the Nixon White House "plumbers."

The Church Committee Report found that covert action had been excessive, had circumvented the democratic process, and had violated the Constitution. It concluded that Congress needed to prescribe rules for intelligence activities.

On the judicial front, the Supreme Court first confronted the tension between unmonitored executive branch surveillance and civil liberties in United States v. U.S. District Court, 407 U.S. 297 (1972), in which the United States charged defendants with conspiracy to destroy government property. Defendants sought electronic surveillance information, held by the prosecution, that the CIA obtained during a potentially illegal wiretap, wanting to ascertain whether the government had relied on information in the indictment or the case for conviction and to suppress any tainted evidence at trial. The Attorney General admitted that a warrantless wiretap had intercepted conversations involving the defendants.

Before the Supreme Court, the government defended its actions on the basis of the Constitution and the Title III national security disclaimer. The Court rejected the statutory argument, saying that "Congress . . . simply did not legislate with respect to national security surveillances." As for the constitutional argument, the Court accepted that the President had the power "to protect our Government against those who would subvert or overthrow it by unlawful means" and that this power justified electronic surveillance of would-be subversives.

Invoking the "broader spirit" of the Fourth Amendment and "the convergence of First and Fourth Amendment values" in national security wiretapping cases, however, the Court was especially wary of possible abuses of the national security power. The Court then balanced "the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression," and found that waiving the Fourth Amendment probable cause requirement could lead the executive to "yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech." Justice Powell wrote that the inconvenience to the government is "justified in a free society to protect constitutional values."

The Court emphasized that this case involved only the domestic aspects of national security: "We . . . express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." It invited Congress to act: "Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."

These two paths, political and judicial, converged in the enactment of FISA.

5. Can FISA be used for ordinary criminal investigation?

Yes, but with qualifications. Under current law, any FISA investigation must have FII collection as its "primary purpose." Crossing the "primary purpose" line for information collection (from counterintelligence to law enforcement) subjects the investigation and evidence to extensive legal scrutiny and policy concerns. For instance, under DOD Dir. 5240.1-R, procedure 1, A, 3, DOD components cannot use the procedures for collecting intelligence information as a subterfuge for collecting evidence for a prosecutorial purpose.

This would change under draft Anti-Terrorism Act of 2001 (ATA).

6. Is there really a secret FISA court?

Yes. FISA established a special court, composed of seven federal district court judges appointed by the Chief Justice for staggered terms and are from different circuits. See 50 U.S.C.A. § 1803. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The proceedings are nonadversarial and are based solely on the DOJ's presentations through its Office of Intelligence Policy and Review.

The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants, except to a limited degree set by district judges' rulings on motions to suppress. 50 U.S.C. §1803(c). There is no provision for the return of each executed warrant to the FISC, much less with an inventory of items taken, nor for certification that the surveillance was conducted according to the warrant and its "minimization" requirements.

The FISC meets two days monthly, and two of the judges are routinely available in the Washington, D.C. area on other days. Statement of Mary C. Lawton, Counsel for Intelligence Policy, Before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice, June 8, 1983, at 8.

7. What kind of surveillance can be authorized under FISA?

Originally, FISA was limited to electronic eavesdropping and wiretapping. 50 U.S.C. § 1801(f). In 1994 it was expanded to permit covert physical entries in connection with "security" investigations. 50 U.S.C. §§ 1821-1829. In 1998, it was amended to permit pen/trap orders, 50 U.S.C. §§ 1841-1846. FISA can also be used to obtain certain business records. §§ 1861-62.

8. How is surveillance authority different under FISA?

Although orders issued under FISA are sometimes called FISA "warrants," this is misleading because it suggests that the FISA order is like an ordinary search warrant or Title III intercept order -- and it isn't. Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA.

9. What is the basic "trigger" for permitting FISA surveillance?

Under FISA, surveillance is generally permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power -- not whether criminality is in any way involved. §1801(b)(1).

10. What is a "foreign power"?

Examples of groups that would likely meet the definition of "foreign power" are the Irish Republican Army, Hezbollah, the PFLP, the ANC, and the FMLN. Note that a "foreign power" need not engage in activities hostile to U.S. interests.

A "foreign power" is

  • a foreign government or a component thereof, whether or not recognized by the United States, 50 U.S.C. § 1801(a)(1).
  • a "faction" of a foreign nation or nations, not substantially composed of United States persons, 50 U.S.C. § 1801(a)(2). The term "substantially" is not defined.
  • any entity that a foreign government acknowledges it controls and directs, such as government trading or business corporations, § 1801(a)(3). It is unclear whether general regulation of a foreign corporation constitutes control and direction.
  • any entity that in fact is controlled and directed by a foreign government. § 1801(a)(6). Given FISA's structure, it appears that this is decided by the FISA court.
  • any group engaged in international terrorism or "activities in preparation therefor," not only governments or their components. § 1801(a)(4).
  • any "foreign-based political organization, not substantially composed of United States persons." § 1801(a)(5). What do "foreign-based," "political," "organization," and "substantially" mean? Would FISA include a group of foreign college or graduate students that engages in political activism? A group of people who exchange opinions about world affairs by e-mail, some of whom live in the United States and others abroad?

11. What is an "agent of a foreign power"?

FISA §1801(b) defines this phrase in two ways, depending on whether the target is a U.S. person. §1801(b)(1) covers non-U.S. persons, while § 1801(b)(2) covers "any person."

Non-U.S. persons are "agents" under FISA if they

  • act in the United States as an officer or employee of a foreign power, or as a member of a terrorist organization, § 1801(b)(1)(A)
  • act for or on behalf of a foreign power that engages in clandestine intelligence activities in the United States contrary to U.S. interests when (1) the circumstances of such persons' presence in the United States "indicate that such person may engage in such activities, or (2) when such person knowingly aids or abets any person, or conspires with any person to engage in such activities." 50 U.S.C. § 1801(b)(1)(B).

So, for instance, a British national who works for the British embassy in the United States is an agent of a foreign power.

American citizens and permanent residents are "agents" if they knowingly engage in espionage for a foreign power or intelligence service, and such activities "are about to involve" a violation of U.S. laws--any criminal laws, not just espionage. §1801(b)(2)(B).

12. So FISA doesn't treat aliens and U.S. citizens equally?

If the target is a "U.S. person," which includes permanent resident aliens and associations and corporations substantially composed of U.S. citizens or permanent resident aliens, 50 U.S.C.A. § 1801(i), there must be probable cause to believe that the U.S. person's activities "may" or "are about to" involve a violation of the criminal statutes of the United States. § 1801(b)(2)(A),(B); see also § 1801(b)(2)(C) (knowingly engages in activities in preparation for sabotage or "international terrorism" on behalf of a foreign power); § 1801(b)(2)(D) (knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power).

A "United States person" may not be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States." 50 U.S.C. § 1805(a)(3)(A).

13. What is "foreign intelligence" information (FII)?

Under 50 U.S.C. §1801(e)(1), FII is information that "relates to" U.S. ability to protect against:
  1. possible hostile acts of a foreign power or an agent of a foreign power,
  2. sabotage or terrorism by a foreign power or agent, and
  3. clandestine intelligence activities by a foreign power or agent.

FII includes information with respect to a foreign power or foreign territory that "relates to" the national defense, national security, or conduct of foreign affairs of the United States. § 1801(e)(2),

Under both sections, if the intended surveillance target is a U.S. person, the information must instead be "necessary to" U.S. self-protective ability or U.S. national defense, national security, or foreign affairs.

The difference between "relates to" and "necessary to" is undefined in the statute, although there may exist a secret FISA "case law."

Note that because the key FISA definitions are not tied to criminal conduct or even conspiracies, FISA can extend to FII in plain public view or in open archives (such as legal photographs of a city, a facility, or a public street, or newspaper clippings copied from a "morgue").

14. Can the FBI use FISA surveillance to get evidence for criminal prosecution?

FISA surveillances must have an intelligence purpose. 50 U.S.C. §1804 (a) (7)(B). But courts allow FISA-obtained information to be used in criminal trials. See, e.g., Exec. Order No. 12,333, 3 C.F.R. 200, 211 (1982), reprinted in 50 U.S.C. § 401 note (1994) (allowing the dissemination of information incidentally obtained during intelligence gathering that indicates activities potentially violating any law).

Courts that have allowed evidence gathered during the surveillance to support a criminal conviction have required that intelligence be the "primary" purpose of the surveillance. United States v. Humphrey, 456 F. Supp. 51 (E.D. Va. 1978), aff'd sub nom. United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980), ("the Executive Branch need not always obtain a warrant for foreign intelligence surveillance"), cert. denied, 454 U.S. 1144 (1982); United States v. Megahey, 553 F. Supp. 1180, 1189-90 (E.D.N.Y. 1982), aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984).

In the Megahey litigation, the district court found that the phrase "primary purpose" is the guidepost for FISA-derived surveillance, given that "Congress clearly viewed arrest and criminal prosecution as one of the possible outcomes of a foreign intelligence investigation." The Second Circuit agreed, noting that, it is foreseeable that collected intelligence may be used in a criminal proceeding and "Congress recognized that in many cases the concerns of government with respect for foreign intelligence will overlap with those with respect to law enforcement." See also United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) (holding that the fact that the terrorist activity was directed at Northern Ireland was of no consequence to the legality of the FISA surveillance); United States v. Pelton, 835 F.2d 1067, 1076 (4th Cir. 1987) (concluding that "FISA surveillance is not tainted simply because the government can anticipate that the fruits of the surveillance may later be used... in a criminal trial").

15. Why is FISA dangerous?

Most important, FISA powers are broad and vague, and the secrecy of FISA proceedings makes FISA powers susceptible to abuse.

FISA power extends well beyond spies and terrorists. It can be used in connection with ordinary criminal investigations involving United States citizens who live in this country and who may be charged with offenses such as narcotics violations or breaches of an employer's confidentiality. 50 U.S.C. §§ 1806, 1825.

For instance, electronic surveillance under § 1801(f)(1) only reaches wire or radio communications "sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person" and a warrant would ordinarily be required. If the U.S. person is not "known," or more important, not "intentionally" targeted, it simply isn't "electronic surveillance" under § 1801(f)(1).

Note also that FISA expressly contemplates that it will produce "unintentionally acquired information." § 1806(i). But while this section requires the destruction of such information, it only applies to "the contents of any radio communication," only if a warrant would have been required, and only if both the sender and intended recipients are within the United States.

Given these limits, one may presume that "unintentionally acquired information" outside these lines is not destroyed. That would include all "unintentionally acquired"wire or electronic communications.

16. How does FISA work?

Under FISA, requests for counterintelligence warrants are funneled through the Justice Department, which reviews applications by the CIA as well as other agencies before submitting them to the FISA court. 50 U.S.C. §§ 1804(a), 1822(a)(1) (1994). Each application to the FISA court must first be personally approved by the Attorney General. See 50 U.S.C. § 1804(a).

The application must contain, among other things,

a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, specified information on the implementation of the surveillance, and a "certification" from a high-ranking executive branch official stating that the official "deems the information sought to be foreign intelligence information" and that the information sought "cannot reasonably be obtained by normal investigative techniques."

See generally 50 U.S.C. §§ 1804(a)(7), 1805(a) (setting forth the findings necessary to support the issuance of an order authorizing surveillance).

Particular facts or representations required include: statements regarding all previous applications involving the target; "detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance," § 1804(a)(6); the length of time surveillance is required, § 1804(a)(10); whether physical entry into a premises is necessary, and proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons. § 1804(b).

On the basis of the application, a FISC judge must find probable cause that the target is a foreign power or agent of a foreign power, and that the facilities where the surveillance is directed are or will be used by the target.

For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation; (2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power pursuant to the direction of an intelligence network and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways.

Courts have attached conditions to the executive's use of warrantless surveillance, including the requirement that the President or Attorney General authorize the search, the search targets a foreign power or its agents, and the primary purpose of the search is to gather foreign intelligence information. See Exec. Order No. 12,333, § 2.5, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401 note (1994) (requiring approval of attorney general for warrantless searches).

An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms, except that targets who are foreign powers may be subject to surveillance for an additional year if there is probable cause to believe that no communication of any U.S. person will be acquired.

17. What happens if a criminal defendant challenges the validity of FISA surveillance?

Suppose a defendant moves to suppress evidence obtained via FISA surveillance. FISA provides that the district court must review in camera and ex parte the FISA application and other materials necessary to rule upon a defendant's suppression motion "if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States." 50 U.S.C. § 1806(f). See United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir.1982) ("The language of section 1806(f) clearly anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only when necessary.").

In such circumstances, neither defendant nor defendant's counsel is likely to have access to the underlying information. 50 U.S.C. § 1806(f) (The district court "may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.").

18. Does FISA authorize surveillance without a court order?

Yes. In general, the Justice Department may engage in electronic surveillance to collect FII without a court order for periods up to one year. 50 U.S.C. § 1802. There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. § 1802(a)(1)(B).

Such electronic surveillance must be certified by the Attorney General and then noticed to the Senate and House intelligence committees. § 1802(a)(2). A copy of the certification must be filed with the FISC, where it remains sealed unless (a) an application for a warrant with respect to it is filed, or (b) the legality of the surveillance is challenged in another federal district court under § 1806(f). § 1802(a)(3). Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).

In emergencies, the Attorney General may authorize immediate surveillance but must "as soon as practicable, but not more than twenty-four hours" later, seek judicial review of the emergency application. § 1805(e).

19. Is FISA really constitutional?

Lower courts have found FISA constitutional. See e.g., United States v. Duggan, 743 F.2d 59(2d Cir. 1984); United States v. Belfield, 692 F.2d 141 (D.C.Cir 1982); United States v. Nicholson, 955 F.Supp. 588 (E.D. Va. 1997).

In United States v. U.S. District Court, the Supreme Court used a two-part Fourth Amendment reasonableness test. It is doubtful whether the FISA review process satisfies the Court's first measure of the reasonableness of warrantless surveillance -- whether the citizens' interest in privacy and free expression are better served by a warrant requirement.

The second element --whether a judicially imposed law enforcement warrant requirement would "unduly frustrate the efforts of Government to protect itself" -- may be more easily met in the foreign intelligence setting. But Title III has for more than 30 years required more stringent procedures for criminal investigatory wiretaps.

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It's been a busy week, hasn't it? 127 speeches by President Bush, workin' hard to justify his personal war on Iraq and the U.S. Constitution. Tryin' 'cause it's "hard work" to renew the Patriot Act. And the list goes on.

Here's the first question that I have this morning:

Prior to the Bush/Cheney's family War on Iraq, initially dubbed Operation Iraqi Liberation, or OIL for short (seriously), cell phone penetration in Iraq was about 6 percent. Today, thanks to the awarding of lucrative contracts for cell phone systems in Iraq, including one big one to Worldcom, aka Worldscam, Iraq cell phone penetration is up to 62 percent.

62 percent! Tell me. Can we have made it any easier for terrorists and insurgents to communicate, plan, and execute attacks against Iraqi civilians and military, and U.S./coalition military forces?

Mr. President, if you really want to impact the "bad guys'" ability to kill and destroy, why not disable cell phone systems?