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Republican Misuse of US Intelligence and the Middle East "Great Game"

"Every administration prefers to receive intelligence information that justifies and supports its foreign and military policies. Some, like the administration of Ronald Reagan, have pushed the CIA and its fellow spy agencies to bend intelligence reports to conform with policy. Others, like the Eisenhower administration, were more content to let the estimates fall where they might. The manipulation goes on within departments as well, especially at the Pentagon, where the Army, Navy, Marine Corps, and Air Force compete for dollars." -- Philip Taubman

In 1977, public outcry over excesses and abuses by the US intelligence community resulted in the sacking of 800 CIA employees. Other intelligence agencies reeled. Dozens of fired CIA employees joined the 1980 Bush presidential campaign, and advised the GOP to focus hard on Carter's failure to win the release of the 52 American hostages being held by Iranian militants. As the 1980 election loomed, one set of problems loomed for the Reagan/Bush campaign: the surge of public support that would be won if a second rescue attempt succeeded in freeing the hostages or if Carter was successful in negotiating a release before the election. The GOP, with their intelligence advisors, took steps to ensure that neither happened. One campaign operative was Theodore Shackley, the "Blond Ghost" who had been Miami station chief during the Bay of Pigs fiasco and served as associate deputy director for operations under Bush before losing his job during the Carter administration. On October 27, 1980, a week before the election, Bush asked Richard Allen, the Reagan foreign policy chief, to follow up on information about the hostages and to report his findings to him through Shackley. Leaks in the CIA and NSC, both staffed with plenty of Republican sympathizers, were rife. Most likely providing information to the Bush campaign were Donald Gregg, a Middle East expert who later served on Reagan's NSC, and Robert Gates, another high-level CIA official. The triumvirat of Major Oliver North, Major General Richard Secord, and Albert Hakim, all part of Carter's failed April hostage rescue mission (Secord was the chief planner) also worked to feed the Reagan/Bush campaign information. After leaving the White House in 1980, Carter implied that Gregg may have betrayed key security items to Bush during the campaign.

A number of investigators, including former Reagan aide Barbara Honegger and Carter security official Gary Sick, believed, and had evidence, that Secord had deliberately botched the April rescue attempt. Sick, in particular, made a compelling case. Sick believed that GOP campaign manager William Casey, himself an experienced intelligence official, began negotiating with the Iranians in March 1980 just after taking over the campaign. Casey opened up negotiations with the Iranians through Jamshid Hashemi, a well-connected Iranian businessman, and Hashemi's brother Cyrus, a New York banker. In late July, Casey met with Tehran leader Ayatollah Karrubi in Spain, and a tentative deal was struck for the Iranians to retain the hostages until after the election, and release them during the first days of the Reagan administration. Casey made the side trip to Spain during his July 27-30 visit to London for a conference. (Early protestations that his schedule would have not permitted such a side trip turned out to be false.) As a quid pro quo, Reagan would release $12 billion in blocked Iranian assets held in the US, and provide covert arms shipments for use by Iran against Iraq. Meanwhile, Casey would ensure that in September and October 1980 Iran would receive shipments of much-needed US armaments and spare parts through Israeli third parties. The agreement was finalized during a secret meeting in late October in Paris.

Unfortunately for Sick, he did not make his case until 1988-89, most of his sources insisted on remaining anonymous, and his book, October Surprise, came out just weeks after the initial victories of the Gulf War. Sick's accusations became more troublesome during the 1992 presidential campaign. A task force charged by Congress to investigate the charges was sifting evidence; without testifying before the commission, and while withholding critical evidence, Bush demanded that the commission clear him of any wrongdoing in the hostage negotiations, and particularly of charges that he himself had flown to Paris in October 1980 to cement the deal with the Iranians. Democratic commission chairman Lee Hamilton obliged Bush with just such clearance, without requiring any testimony or supporting evidence. The commission closed itself down in January 1993, saying it hadn't found enough to bring any charges. Even though Democrats had won the White House, Reagan/Bush operatives breathed sighs of relief that the charges had been successfully countered. They had not.

More evidence of the "October Surprise" surfaced over the next decade, much of which had been gathered, but ignored, by the 1992 commission. Corroboration from French intelligence sources added to the evidence, including an admission from the head of French counter-intelligence, a hardline conservative, that he had set up the October 1980 meeting for Casey. Evidence from the French proved that the meeting had indeed taken place on October 18 and 19, 1980, in Paris. In 1993, Soviet intelligence sources also confirmed that the meeting had indeed taken place, and was attended by Casey, Gates, and Bush. The Russians depicted the process as a competition between Carter officials, under the auspices of the US government, and private agents of the Reagan/Bush campaign, to win the cooperation of the Iranians. The Russians flatly stated that GOP campaign officials, including Bush and Casey, successfully interfered with Carter administration attempts to negotiate for the hostages' freedom before the elections, an enormous violation of US law and grounds for potential treason charges. An Israeli intelligence officer, Ari Ben-Menashe, confirmed in his own book, Profits of War, that he had helped the French negotiate a meeting between the Iranians and GOP campaign officials. In 1993, when Israeli prime minister Yitzhak Shamir was asked, "Was there an October Surprise," he replied, "Of course there was." And in 1996, Yassir Arafat personally told Carter during a meeting in Gaza, "You should know that in 1980 the Republicans approached me with an arms deal if I could arrange to keep the hostages in Iran until after the election."

Former Iranian president Abolhassan Bani-Sadr confirmed that Bush and other GOP officials flew to Paris to convince representatives of Ayatollah Khomeini "that the hostages should not be released during the Carter administration." In 1988, Carter himself revealed that he had been told by Bani-Sadr that an agreement between the Iranians and several GOP operatives, including Bush, Bud McFarlane, and perhaps Casey, had been reached. Bani-Sadr wrote of his knowledge of the negotiations to the 1992 Congressional investigators, but his letter was filed away and never released or used in the investigation. Journalist Robert Parry, who unearthed much of the evidence, wrote in summation, "Bani-Sadr said the message from the Khomeini emissary was clear: the Republicans were in league with the CIA in an effort to undermine Carter and were demanding Iran's help. Bani-Sadr said the 'emissary told me that if I do not accept this proposal, they [the Republicans] would make the same offer to my [Iranian political] rivals.' The emissary added that 'the Republicans have enormous influence in the CIA.'" Mansur Rafizadeh, a CIA asset who had headed the Iranian secret police, SAVAK, during the reign of the shah, said that during 1980, he was told by "powerful" Iranian sources that he was wrong in believing that the US government wanted the hostages released. "You are wrong," he reports being told. "American government doesn't want the hostages released, or possibly there's a government inside of the government."

Phillips, after reviewing the evidence, comes to his own conclusions. He believes that there was, indeed, an "October Surprise" involving Reagan/Bush officials going behind the backs of US government officials to thwart their attempts to have the hostages released, but Bush's supposed clandestine trip to Paris may be a red herring, designed to throw investigators off the trail. Phillips believes it is more likely that Bush and Casey reviewed the plans in Washington. The upshot was that the failure to secure the hostages cost Carter critical votes, enabling Reagan's election. In return, the Reagan/Bush administration indeed released the $12 billion in frozen Iranian assets, and supplied Iran with illegal arms shipments for years, ensuring that the Iran-Iraq war would stretch on for nearly a decade. Under Reagan/Bush, the CIA budget soared, and US intelligence agencies turned the Middle East into its own personal playground. CIA support for the Afghanistan rebels, many of whom later became the US's arch-enemies when they formed terrorist networks such as al-Qaeda, spiked. The Reagan/Bush administration supplied billions of dollars' worth of armaments to Iraq as well as to Iran, leading to both the Iran-contra and Iraqgate scandals, and ensuring Saddam Hussein would remain in power unchallenged until literally days before George Bush performed an about-face and invaded Iraq in 1991. The connections continued into the second Bush administration; officials who had helped George W. Bush's father cover up his connections to Iran-Contra were rewarded by powerful positions in the son's administration. -- Kevin Phillips

The latest iteration of the Western "Great Game" of spies and competing intelligence organizations began in the 1980s during the incipient breakup of the Soviet Union. Covert operations by the US and other countries in Iran, Afghanistan, and Iraq intensified the already-simmering conflicts. The 1991 breakup of the USSR sent the "game" spiraling to an entirely new level, with the creation of eight new republics in the Caucasus and Transcaspia. Kevin Phillips writes, "splitting into latter-day khanates, Circassian mountain republics, and bristling encampments of missile-bearing Tatars, Eurasia was once again in play." The second Bush administration's entry into power in 2001 brought in reams of secret plans for gaining influence in the region, largely concocted by neoconservatives like Paul Wolfowitz and Richard Perle. -- Kevin Phillips

A section in Michael Klare's Resource Wars is headed, "The Great Game II: US-Russian Competition in the Caspian," an apt title for the machinations going on in the fledgling republics of the Caucasus and Transcaspian regions. Many of the new republics have large, barely tapped oil reserves, and the US and Russia both want to help the republics exploit their oil fields. Several members of the Clinton administration were active in opening diplomatic and business channels to the new republics; so, too, were a number of Bush allies. Dick Cheney, James Baker, former White House chief of staff John Sununu, and former national security advisor Brent Scowcroft all signed up to counsel the Azerbaijan International Operating Company, a consortium owned in part by Amoco, Pennzoil, Unocal, McDermott, and Exxon. Bush's future national security advisor, Condoleezza Rice, advised Chevron on its Tenghiz-Chevroil joint ventures in Kazakhstan. Many analysts believe that control of Middle Eastern and Caucasus-region oil prompted not only the 1991 Persian Gulf War of George H.W. Bush, but other US involvements in the Middle East as well. The Iran-contra affair is easily viewed in terms of US control of oil -- arms for Iran would prolong its war with Iraq, reduce output from the Persian Gulf, and raise prices for American oil producers. So, too, the 1992 military intervention in Somalia, an oil-soaked little autocracy on the coast of East Africa, just across the Red Sea from Saudi Arabia, where US oil concessions were at stake. In 2003, the younger Bush played the "game" for even higher stakes, according to Klare: "Controlling Iraq is about oil as power, rather than oil as fuel. Control over the Persian Gulf translates into control over Europe, Japan, and China. It's having our hand on the spigot." -- Kevin Phillips

Kevin Phillips writes, "Overambition in the [Caucasus and Southwestern Asian] region has been common, because locales from the Caucasus to the Khyber Pass have exerted an extraordinary pull on Western adventurers, "soldier sahibs," intelligence chiefs, and secret agents. They have been romanticized and glorified since 1901, when Rpdyard Kipling's Kim, set in what wasthen India's North-West Frontier Province, evoked Pashtun horse traders, Russian spies, and the general mystique of the clandestine world." Two famous twentieth-century intelligence agents took the nickname "Kim:" Kermit "Kim:" Roosevelt, a pro-Arab US agent who served in the World War II OSS and directed the 1953 Iranian coup that overthrew the Mossadegh government and replaced the Shah to power. In 1920, a young Roosevelt served briefly with Averill Harriman and George H. Walker's financial empire before resigning over his objections to the corporations' inordinate German influence.

The second "Kim:" was, of course, H.A.R. "Kim:" Philby, the notorious post-World War II British traitor who secretly worked for the Soviet Union. American spymaster Allen Dulles was born too late for the first iteration of the "Great Game," but thrilled to stories of the time. Kipling's book was a huge influence on Dulles; it is said that Kim was by his bedside when he died in 1969. From his 1924 post as director of the Near Eastern Bureau of the US State Department, when he helped Standard Oil land a Mesopotamian oil contract, through his 1953 role as CIA director helping put the Shah on the throne of Iran, Dulles loved playing on Kipling's turf. George H.W. Bush continued Dulles' legacy of American intervention in the area, pouring weapons into Afghanistan, co-opting Pakistani intelligence (and possibly being co-opted in the process), cozying up to the Iranian secret police, making secret arms deals with Shi'ite ayatollahs, becoming virtual family to the Saudi royals, rescuing undemocratic Kuwait, and helping transform Peshawar -- Kipling's mountain gateway to the Khyber Pass -- into a CIA station and munitions dump. While the elder Bush clothed his imperial ambitions for America in the conviction that he, like the British intelligence organizations that preceded him, were merely bringing modernity and civilization to the benighted heathen -- an extension of Kipling's "white man's burden" -- his son bothers little with such justifications, instead playing a much simpler, more brutal game of seizing power and holding onto it like a terrier clamping its jaws onto a rat. -- Kevin Phillips

"George Bush is one covert motherf*cker. He is still running the CIA. He never stopped running the CIA." -- CIA operative Mike Timpani in 1988, commenting on the irony of a former CIA director winning the presidency, quoted by Larry Kolb

Pressure From Above: Cherrypicking the Intelligence on Iraq

"Someday we can all expect to be prosecuted for what we're going to do." -- Cofer Black, director of the CIA's Counterterrorism Center, shortly after 9/11, quoted by Michael Isikoff and David Corn

"The operating premise of the...CIA as a whole...was that accurate intelligence mattered. It was the duty of the CIA and the other intelligence agencies to obtain truthful information, however they could, and to get it into the hands of policy makers. Spies, eavesdroppers, and analysts collected and processed intelligence so senior government officials, especially the commander in chief, could render the best decisions possible. But Bush, Cheney, and a handful of other senior officials already believed they had enough information to know what to do about Iraq. They still were seeking information about unconventional weapons in Iraq, but it was for reasons other than for evaluating whether Iraq was an immediate threat that would have to be neutralized by an invasion. They were drop-dead sure of their presumptions: Iraq was a danger, Saddam had to go, and war was the only option that would achieve this policy goal. They did not need intelligence to reach these conclusions -- or to test them." The intelligence Bush and Cheney wanted would be primarily for marketing the upcoming invasion, helping to whip up support in Congress and the public for sending in the troops. "Bush and his aides were looking for intelligence not to guide their policy on Iraq but to market it. The intelligence would be the basis not for launching a war, but for selling it." Most outside of the upper echelons of power in the White House assumed that the gathered intelligence would decide whether or not the US would go to war. They were all wrong. Even though much of what the CIA produced, under intense pressure from Cheney and others, was flat wrong, it didn't really matter. "[I]t was only window dressing for decision makers who did not need intelligence to know that they knew the truth." -- Michael Isikoff and David Corn

The subject of the Bush-Cheney administration "cherrypicking" intelligence reports for information that supported their drive to invade Iraq, ignoring information that undercut their case for invasion, and pressuring CIA and other intelligence analysts for information that they wanted, has been covered extensively throughout this site. Additional, supplemental information is located in this section, as for example, the recollection of Michael Solick, deputy chief of the CIA's Directorate of Operations, who said later that the more information the CIA sent to Cheney and his chief of staff, Lewis "Scooter" Libby that showed Iraq had no connections to al-Qaeda, or had no extant WMD programs, the more pressure came down from Cheney and Libby to keep looking for information they wanted. That kind of pressure inevitably shaped future analysis. "It was like they were hoping we'd find something buried in the files or come back with a different answer," Solick recalled. While Solick says there was no direct, "obvious pressure" from Cheney and Libby to change the answers, the incessant barrage of questions and the increasingly frequent visits to CIA headquarters from Cheney "had created an environment that was subtly, but unmistakably, influencing the agency's work," in the words of Michael Isikoff and David Corn. Solick said that, bowing to the pressure, the CIA's analysts had become "overly eager to please."

Solick said that Libby may have been even harder to please than Cheney. As Cheney's top national security advisor, Libby oversaw a "shadow" National Security Council, largely staffed with hardline, ideologically extremist neoconservatives, which reached deep into the foreign policy and defense bureaucracy. One NSC staffer recalled being shocked that his internal memos to national security advisor Condoleezza Rice had routinely been routed to Libby without his knowledge. A CIA official was surprised to discover that Libby's staff was reading unedited transcripts of NSA interrcepts. Libby is a protege of Deputy Defense Secretary Paul Wolfowitz, a leading academic neoconservative hawk; they both believe that the CIA's analysts are too bureaucratically blind to perceive the nefarous plottings of America's enemies. This is why Libby, on Cheney's behalf, routinely demanded the raw intelligence reports, not just the analyses as processed by CIA professionals. Though none of Cheney's team were trained intelligence analysts, they believed that they could unearth raw nuggets of information that the CIA analysts were too blind or gutless to recognize. At one point, in late 2002, the CIA estimated that it would take them almost a year to find and retrieve the documents asked for by Libby, and respond to Libby's own responses.

Not surprisingly, Libby was not popular at the CIA. "He had a reputation of being a prick," one senior CIA official recalled, "nasty and obnoxious" in his questioning of analysts. Libby was particularly obsessed with finding connections between Saddam Hussein and al-Qaeda; "he wouldn't let go of the al-Qaeda-Saddam connection," the official recalled. But what Libby lacked in his ability to analyze intelligence, he made up for in his bureaucratic infighting skills. "Whenever Scooter Libby walked into the elevator," one NSC official recalled, "the temperature seemed to drop five degrees." -- Michael Isikoff and David Corn

Domestic Wiretapping

In recent years, a controversy erupted over the National Security Agency's electronic surveillance of domestic phone conversations between Americans and citizens of other countries. The NSA has the capability of eavesdropping on millions of domestic and international phone calls, e-mail exchanges, and Internet traffic, all in the name of gathering intelligence on terrorist activities. The NSA does not bother with Constitutional mandates requiring probable cause and search warrants. A secret directive signed by Bush in early 2002, in the wake of the 9/11 attacks, gives the NSA license to conduct surveillance on communications inside the US. With the cooperation of a number of domestic telecommunications networks (whose identities remain largely secret), the NSA has unprecedented, and illegal, access to the private communications of every American citizen. A few government officials who know about the NSA eavesdropping program have come forward to speak out about it, believing that it is wrong and worrying that, by keeping silent, they would become complicit in it. They strongly believe that Bush's order violates the Constitution's Fourth Amendment protections, and have called for investigations.

These officials say the operation is simply called "The Program," and is the largest domestic spying operation in American history, outstripping the domestic surveillance programs conducted by the FBI and NSA during the Vietnam War and the civil rights era. The government has skirted the 1978 FISA legislation mandating warrants from a secret FISA judge, using the questionable legal opinions generated by a raft of compliant administration lawyers similar to those opinions generated to give legal cover to the CIA's use of torture of terrorist suspects. The legal opinions have little legal grounding, but have succeeded in diverting public examination of the issue away from a discussion of the rights and morality of the surveillance into a morass of the validity of conflicting legal opinions. All of the legal opinions supporting "The Program" rest on a broad interpretation of Article Two of the Constitution, which grants certain powers to the president in his role as commander-in-chief. The Bush adminstration has relied on these legal opinions, and on Congress's September 2001 authorization of military force to be used against terrorists, to implement and expand the NSA's domestic surveillance program. The Justice Department argued in a legal brief in an unrelated court case in 2002 that "the Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that authority."

The NSA eavesdropping program has been concealed within a "special access program," a level of secrecy reserved for the government's most covert operations. "This is the biggest secret I know about," says one of the officials troubled by the program. The Bush administration has defended the program as critical to its efforts to battle global terrorism, though it has given few specifics as to what the program has accomplished or how it is being constrained inside the limits of the law. Risen observes, "They have not explained why any terrorist would be so naive as to assume that his electronic communication was impossible to intercept." Another, ingenuous reason given by the administration is that the NSA is processing so much information from its electronic data tapping that it would be physically impossible to secure warrants for everything it is doing.

The surveillance program has made a mockery of the debate over the USA Patriot Act of 2001, which has been widely criticized for giving the government too much power to conduct secret searches and to spy on Americans. The Patriot Act requires the FBI to obtain search warrants from the FISA court before conducting any electronic surveillance of a suspect. It gives no new powers whatsoever to the NSA. The Bush administration purposely did not seek Congressional approval for the NSA program for the simple reason that such an effort would cause a firestorm of controversy and the program almost certainly would not have been approved. Instead, the Bush administration went ahead with the program and is now defending it in the breach. While pretending to engage in serious debate about the provisions of the Patriot Act, the administration was simultaneously involved in encouraging the NSA to conduct a program that ranges far outside the bounds of even that legislation. "This goes way beyond the Patriot Act," says one former official.

The NSA decides on its own which telephone numbers and e-mail addresses to monitor. It does not need the approval of the White House, the Pentagon, the judiciary, the Congress, or anyone else to begin monitoring a domestic phone line or computer. It relies solely on an "internal checklist" to decide whether to set up a monitoring link. While Bush officials argue that the NSA determination alone is sufficient "probable cause" to begin monitoring, neither federal prosecutors nor Justice Department attorneys sign off on any monitoring. The Justice Department occasionally audits the monitoring selections, but the decision lies totally with the NSA, in accordance with Bush's executive order.

The NSA keeps its surveillance program as secret as possible, and administration officials go to great lengths to hide the origin of the information the NSA gathers. The information's source is "laundered" before it is turned over to the CIA or FBI, and reports specifically do not identify that such information comes from US-based intercepts. Even when the information is presented as part of a criminal prosecution, the source is kept secret. One top intelligence official denies that such information has ever been used in any criminal case, but others say the NSA-gathered information has been used in a number of prosecutions. New York Times reporter James Risen believes, based on what he has learned from his sources, that the administration usually chooses not to prosecute a terror-related case in order to keep its information away from judicial scrutiny. The information from these warrantless wiretaps would almost certainly not hold up in court. This is why the Justice Department has brought so few major terrorism cases to court after 9/11, and why so often those cases are settled with plea bargains and out-of-court deals rather than pushing for a verdict. Risen writes, "One reason for that legal strategy may be that the administration is fearful of getting caught conducting illegal surveillance operations.

The administration uses a number of stratagems to keep the NSA's role in domestic surveillance out of the public eye. In some cases, FISA judges issue warrants for wiretaps already in place. This often happens when the NSA has been tapping international phone calls -- calls originating in the US to a foreign country, or vice versa, and uses information gleaned from those intercepts to ask for warrants to monitor the entirety of a citizen's communications. But, Risen notes, this is patently illegal, "the fruit of the poison tree," to use the legal colloquialism. The FISA warrants are obtained using information gained from warrantless wiretaps. Some lawyers estimate that up to 20% of FISA warrants are generated through this methodology.

As for the legality of The Program, one Justice Department official says simply, "People just looked the other way because they didn't want to know what was going on." Some senior Bush officials learned of the warrantless wiretapping through the grapevine, with no briefings, and are stunned that the DOJ and White House would approve such domestic spying. "This is really a sea change," says one former senior law enforcement official who believes the program is both illegal and bad public policy. "It's almost a mainstay of this country that the NSA only does foreign searches." But then-FISA chief justice Royce Lamberth, a genial Republican from Texas, did not challenged one whit of the program, even though he himself only heard about it once it was in place. Lamberth's successor, Colleen Kollar-Kotelly, raised questions in 2004 that effectively derailed the surveillance program -- for about three weeks. Some administration officials believe that after Kollar-Kotelly objected, the NSA cut back on some elements of its domestic spying operation. Few members of Congress have been notified of the program. Two that were briefed are former Democratic senator Bob Graham and Republican senator Richard Shelby, then the two ranking members of the Senate Intelligence Committee, but both were prohibited from revealing any of the information they were given, even to their fellow committee members. They were briefed by senior White House officials Dick Cheney and Stephen Hadley, and CIA director George Tenet, and were not given the entire picture. When Democratic House member Jay Rockefeller of the House Intelligence Committee received a similar briefing in 2003, he wrote a letter of concern to Cheney, but never received a reply.

A few other senior Democratic Congressmen received sketchy briefings but, apparently intimidated by the post-9/11 climate and the bullying tactics of the White House and its Republican allies in Congress, failed to speak out against the program. Risen writes, "at least one Democrat who was briefed later regretted accepting the administration's decision to launch the operation and realized that the White House had trapped the congressional leaders. By giving the lawmakers secret briefings with no staff present and then demanding that they never discuss the matter with anyone, the congressional leaders were paralyzed. As time wore on, it became increasingly difficult for Democrats to protest the operation, since the White House could argue that they had been receiving briefings for years and had barely complained." Until Risen, Eric Lichtblau, and the Times revealed in December 2005 that the domestic spying program existed, most other Congress members believed that the FISA court had ended the right of the government to secretly wiretap its citizens.

The administration gathered its legal defenses long before any objections could be raised. In the days after 9/11, DOJ lawyer John Yoo wrote a lengthy memo defending such wiretapping as necessary for national security even if such a program would "in less troubled seen as infringements of invididual liberties." But the administration thought it best not to let Congress examine any aspects of the program and possibly raise a public outcry. Lawyers like Yoo argued that the program didn't need Congressional approval because the Congressional authorization to act against terrorism after 9/11 in essence already granted the president and his intelligence agencies that power -- an exceedingly thin reed that, the administration decided, should best be left untested.

Ironically, the FISA court grants almost all the warrants asked of it by US intelligence agencies. The number of warrant requests doubled between 2001 and 2003, when over 1,700 requests were executed, many of those in strictest secrecy. Meanwhile, the administration went out of its way to reassure Congress and the public that its Patriot Act would not extend the powers of the NSA into the area of domestic spying. Yoo wrote an op-ed for the Wall Street Journal mocking those who criticized the Patriot Act, writing, "Civil libertarians would have us believe that the Patriot Act allows CIA and NSA agents to roam freely through the country detaining anyone they please. Nothing could be further from the truth."

Many observers on the left and right believe that, far from being a key element in battling terrorism, the NSA domestic spying program is actually a means for the Bush administration to abrogate essential civil liberties in the name of fighting terror. The administration openly created its Northern Command after 9/11, the first military command in modern history designed to operate inside the US itself. Though that establishment clearly violates laws such as the Posse Comitatus Act, and raises the specter of military intelligence operations inside US borders, few objections have been raised. As of late 2005, when Risen and Lichtblau's articles were published, The Program was still operating in full force. -- James Risen

"Over the past few years, whenever the White House has seen or sensed trouble looming for its most controversial and tenuous positions in the legal war on terrorism, it has suddenly changed course, altered the playing field, or unilaterally declared itself beyond the purview of the prevailing rule of law. No legal defeats for this administration, no explicit concession of limits on its authority, just a series of tactical or strategic retreats that allow it to show to the world a visage of supreme executive branch power-- while at the same time allowing it at some future date to advance the same losing arguments. And all of it is done in secret, under the cloak of national security, so as to hide not just true secrets but embarrassing facts and legal opinions.

"Why this three-card-monte tactic? Because once the Supreme Court formally limits White House power on domestic surveillance, or once the Justices or Congress declare the President's 'enemy combatant' designations unconstitutional as they apply to US citizens (like Padilla and Hamdi), the executive branch will have a much harder time regaining those powers at a future date than they would without those explicit setbacks. I think of it this way: when the White House sees that it is losing the match, it simply walks off the field and starts a new game, somewhere else, with different rules." -- Andrew Cohen