Justice Nomination Seen as Snub to Democrats

The Justice Department lawyer who wrote a series of classified legal opinions in 2005 authorizing harsh C.I.A. interrogation techniques was renominated by the White House on Wednesday to a senior department post, a move that was seen as a snub to Senate Democrats who have long opposed his appointment.

The lawyer, Steven G. Bradbury, who has run the department’s Office of Legal Counsel without Senate confirmation for more than two years, has been repeatedly nominated to the job of assistant attorney general for legal counsel.

But the earlier nominations stalled in the Senate because of a dispute with the Justice Department over its failure to provide Congress with copies of legal opinions on a variety of terrorism issues. Under Senate rules that place a time limit on nominations, Mr. Bradbury’s earlier nominations expired.

Late last year, Democrats urged the White House to withdraw Mr. Bradbury’s name once and for all and find a new candidate for the post after it was disclosed in news reports in October that he was the author of classified memorandums that gave approval to harsh interrogation techniques, including head slapping, exposure to cold and simulated drowning, even when used in combination.

Mr. Bradbury’s memorandums were described by Democrats as an effort by the Bush administration to circumvent laws prohibiting torture and to undermine a public legal opinion issued by the Justice Department in 2004 that declared torture to be “abhorrent.”

The department and the White House have insisted that there are no contradictions between Mr. Bradbury’s legal opinions, which are still secret, and laws and rules governing interrogation techniques. A department spokesman, Peter A. Carr, said Wednesday that the department remained eager to see Mr. Bradbury confirmed.

“Steve Bradbury is a dedicated public servant and a superb lawyer, who has led with distinction the department’s Office of Legal Counsel,” Mr. Carr said. “He has proven invaluable to the department, and we will continue to work with the Senate to get him confirmed.”

Joe Shoemaker, a spokesman for Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, said that by putting Mr. Bradbury’s name forward again as a nominee, “the president has thumbed his nose at Congress and chosen an individual who has been involved in authorizing some of the most controversial policies of this administration.”

Mr. Durbin led the previous efforts to reject Mr. Bradbury’s nomination and sits on the Judiciary Committee, which would have to approve the nomination.

Mr. Bradbury’s new nomination is almost certain to be a focus of questions next week when Attorney General Michael B. Mukasey is scheduled to appear before the Judiciary Committee for his first public hearing since his confirmation to the job in November.

Mr. Mukasey has suggested that he is a firm supporter of the Bush administration’s tough anti-terrorism policies, and his nomination was nearly derailed over criticism of his refusal to condemn as torture the interrogation practice known as waterboarding. He has since said he is studying its legality.

Mr. Durbin and the nine other Democrats on the Judiciary Committee joined in a letter on Wednesday asking Mr. Mukasey to clarify his views on waterboarding and other harsh interrogation techniques. The letter noted there had been “ample time for you to study this issue and reach a conclusion” and asked him to respond to the question: “Is the use of waterboarding as an interrogation technique illegal under U.S. law, including terrorism obligations?”

Also Wednesday, Vice President Dick Cheney offered a broad and impassioned defense of the administration’s antiterrorism efforts as he urged Congress to act quickly in reauthorizing broad wiretapping powers for the National Security Agency and in giving broad immunity to phone companies involved in the wiretaps.

The vice president, who was closely involved in the N.S.A.’s program of eavesdropping without warrants from its inception weeks after the Sept. 11, 2001, terrorist attacks, depicted the vote in the Senate as a matter of national security.

“It is a fact,” Mr. Cheney told a friendly audience at the Heritage Foundation, a conservative research group in Washington, “that the danger to our country remains very real, and that the terrorists are still determined to hit us.”

Democrats concede that they probably lack the votes to stop a White House-backed plan to give immunity to phone carriers that assisted in the N.S.A. program, and they urged President Bush anew on Wednesday to agree to a one-month extension in the law to allow time for a full debate.

Can your iPhone be searched without a warrent? // Current

Can your iPhone be searched without a warrent? // Current: "Can your iPhone be searched without a warrent?"

FBI Wiretaps Dropped Due to Unpaid Bills

Telephone companies cut off FBI wiretaps used to eavesdrop on suspected criminals because of the bureau's repeated failures to pay phone bills on time, according to a Justice Department audit released Thursday.

The faulty bookkeeping is part of what the audit, by the Justice Department's inspector general, described as the FBI's lax oversight of money used in undercover investigations. Poor supervision of the program also allowed one agent to steal $25,000, the audit said.

More than half of 990 bills to pay for telecommunication surveillance in five unidentified FBI field offices were not paid on time, the report shows. In one office alone, unpaid costs for wiretaps from one phone company totaled $66,000.

And at least once, a wiretap used in a Foreign Intelligence Surveillance Act investigation - the highly secretive and sensitive cases that allow eavesdropping on suspected terrorists or spies - "was halted due to untimely payment."

"We also found that late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance results to the FBI, resulting in lost evidence," according to the audit by Inspector General Glenn A. Fine.

U.S. seen internationally as an ‘Endemic Surveillance Society.’

In the recently released annual survey of worldwide privacy rights by Privacy International and EPIC, the United States has been downgraded from “Extensive Surveillance Society” to “Endemic Surveillance Society.” As Glenn Greenwald notes, this is “the worst possible category there is for privacy protections, the category also occupied by countries such as China, Russia, Singapore and Malaysia.” In general, “the 2007 rankings indicate an overall worsening of privacy protection across the world, reflecting an increase in surveillance and a declining performance of privacy safeguards.”

FISA court refuses to release wiretapping docs.

In August, the ACLU asked the Foreign Intelligence Surveillance Court to release “documents regarding the Bush administration’s warrantless wiretapping program. “In a rare public opinion” today, the Court ruled that “the public has no right to view the documents because they deal with the clandestine workings of national security agencies.” The AP reports:

Writing for the court, U.S. District Judge John D. Bates refused. Releasing the documents would reveal closely guarded secrets that enemies could used to evade detection or disrupt intelligence activities, he said. […]

Bates acknowledged that the public would benefit from seeing the documents. The decision-making process would be understood, he said, and public oversight could help safeguard against government abuse. But the dangers of releasing such sensitive materials far outweigh that public benefit, Bates said.

Today's Must Read...WE KNEW THIS WAS COMING

It's not just foreign-to-domestic calls involving suspected terrorists. Nor library, business and medical records of American citizens in (mostly) terrorism-related cases. The list of circumstances under which law enforcement can jettison probable cause as a standard for obtaining information is expanding to include... carrying a cellphone.

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.
In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.


Basically, as carriers increasingly offer subscribers the ability to stay informed of where their associates are at all times, law enforcement gets an investigative tool. In one recent case, a DEA agent sought a drug-trafficking suspect's Nextel tracking information from a judge simply by asserting that the suspect was trafficking drugs, thereby turning probable cause on its head. The agent didn't get away with it in this case, but in several other recent cases, courts issued warrants based on a determination that the location information provides "specific and articulable facts" relevant to an ongoing criminal investigation.

What does the Justice Department say about the practice? According to national-security division spokesman Dean Boyd, the department "strongly recommend[s]" retaining the probable cause standard. But judges have ruled that it's not always necessary.

Since 2005, federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone tracking data absent a demonstration of probable cause that a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.
"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected," said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.

But judges in a majority of districts have ruled otherwise on this issue, Boyd said. Shortly after Smith issued his decision, a magistrate judge in the same district approved a federal request for cell-tower data without requiring probable cause. And in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, approving a request for cell-site data, wrote that because the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed.