January 1, 2006
The Public Editor
Behind the Eavesdropping Story, a Loud Silence
By BYRON CALAME, NY TIMES

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THE New York Times's explanation of its decision to report, after what it said was a one-year delay, that the National Security Agency is eavesdropping domestically without court-approved warrants was woefully inadequate. And I have had unusual difficulty getting a better explanation for readers, despite the paper's repeated pledges of greater transparency.

For the first time since I became public editor, the executive editor and the publisher have declined to respond to my requests for information about news-related decision-making. My queries concerned the timing of the exclusive Dec. 16 article about President Bush's secret decision in the months after 9/11 to authorize the warrantless eavesdropping on Americans in the United States.

I e-mailed a list of 28 questions to Bill Keller, the executive editor, on Dec. 19, three days after the article appeared. He promptly declined to respond to them. I then sent the same questions to Arthur Sulzberger Jr., the publisher, who also declined to respond. They held out no hope for a fuller explanation in the future.

Despite this stonewalling, my objectives today are to assess the flawed handling of the original explanation of the article's path into print, and to offer a few thoughts on some factors that could have affected the timing of the article. My intention is to do so with special care, because my 40-plus years of newspapering leave me keenly aware that some of the toughest calls an editor can face are involved here - those related to intelligence gathering, election-time investigative articles and protection of sources. On these matters, reasonable disagreements can abound inside the newsroom.

(A word about my reporting for this column: With the top Times people involved in the final decisions refusing to talk and urging everyone else to remain silent, it seemed clear to me that chasing various editors and reporters probably would yield mostly anonymous comments that the ultimate decision-makers would not confirm or deny. So I decided not to pursue those who were not involved in the final decision to publish the article - or to refer to Times insiders quoted anonymously in others' reporting.)

At the outset, it's essential to acknowledge the far-reaching importance of the eavesdropping article's content to Times readers and to the rest of the nation. Whatever its path to publication, Mr. Sulzberger and Mr. Keller deserve credit for its eventual appearance in the face of strong White House pressure to kill it. And the basic accuracy of the account of the eavesdropping stands unchallenged - a testament to the talent in the trenches.

But the explanation of the timing and editing of the front-page article by James Risen and Eric Lichtblau caused major concern for scores of Times readers. The terse one-paragraph explanation noted that the White House had asked for the article to be killed. "After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting," it said. "Some information that administration officials argued could be useful to terrorists has been omitted."

If Times editors hoped the brief mention of the one-year delay and the omitted sensitive information would assure readers that great caution had been exercised in publishing the article, I think they miscalculated. The mention of a one-year delay, almost in passing, cried out for a fuller explanation. And the gaps left by the explanation hardly matched the paper's recent bold commitments to readers to explain how news decisions are made.

At the very least, The Times should have told readers in the article why it could not address specific issues. At least some realization of this kicked in rather quickly after publication. When queried by reporters for other news media on Dec. 16, Mr. Keller offered two prepared statements that shed some additional light on the timing and handling of the article.

The longer of Mr. Keller's two prepared statements said the paper initially held the story based on national security considerations and assurances that everyone in government believed the expanded eavesdropping was legal. But when further reporting showed that legal questions loomed larger than The Times first thought and that a story could be written without certain genuinely sensitive technical details, he said, the paper decided to publish. (Mr. Keller's two prepared statements, as well as some thoughtful reader comments, are posted on the Public Editor's Web Journal.)

Times readers would have benefited if the explanation in the original article had simply been expanded to include the points Mr. Keller made after publication. And if the length of that proved too clunky for inclusion in the article, the explanation could have been published as a separate article near the main one. Even the sentence he provided me as to why he would not answer my questions offered some possible insight.

Protection of sources is the most plausible reason I've been able to identify for The Times's woeful explanation in the article and for the silence of Mr. Sulzberger and Mr. Keller. I base this on Mr. Keller's response to me: "There is really no way to have a full discussion of the back story without talking about when and how we knew what we knew, and we can't do that."

Taken at face value, Mr. Keller seems to be contending that the sourcing for the eavesdropping article is so intertwined with the decisions about when and what to publish that a full explanation could risk revealing the sources. I have no trouble accepting the importance of confidential sourcing concerns here. The reporters' nearly one dozen confidential sources enabled them to produce a powerful article that I think served the public interest.

With confidential sourcing under attack and the reporters digging in the backyards of both intelligence and politics, The Times needs to guard the sources for the eavesdropping article with extra special care. Telling readers the time that the reporters got one specific fact, for instance, could turn out to be a dangling thread of information that the White House or the Justice Department could tug at until it leads them to the source. Indeed, word came Friday that the Justice Department has opened an investigation into the disclosure of classified information about the eavesdropping.

The most obvious and troublesome omission in the explanation was the failure to address whether The Times knew about the eavesdropping operation before the Nov. 2, 2004, presidential election. That point was hard to ignore when the explanation in the article referred rather vaguely to having "delayed publication for a year." To me, this language means the article was fully confirmed and ready to publish a year ago - after perhaps weeks of reporting on the initial tip - and then was delayed.

Mr. Keller dealt directly with the timing of the initial tip in his later statements. The eavesdropping information "first became known to Times reporters" a year ago, he said. These two different descriptions of the article's status in the general vicinity of Election Day last year leave me puzzled.

For me, however, the most obvious question is still this: If no one at The Times was aware of the eavesdropping prior to the election, why wouldn't the paper have been eager to make that clear to readers in the original explanation and avoid that politically charged issue? The paper's silence leaves me with uncomfortable doubts.

On the larger question of why the eavesdropping article finally appeared when it did, a couple of possibilities intrigue me.

One is that Times editors said they discovered there was more concern inside the government about the eavesdropping than they had initially been told. Mr. Keller's prepared statements said that "a year ago," officials "assured senior editors of The Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions." So the paper "agreed not to publish at that time" and continued reporting.

But in the months that followed, Mr. Keller said, "we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program" and "it became clear those questions loomed larger within the government than we had previously understood."

The impact of a new book about intelligence by Mr. Risen on the timing of the article is difficult to gauge. The book, "State of War: The Secret History of the CIA and the Bush Administration," was not mentioned in the Dec. 16 article. Mr. Keller asserted in the shorter of his two statements that the article wasn't timed to the forthcoming book, and that "its origins and publication are completely independent of Jim's book."

The publication of Mr. Risen's book, with its discussion of the eavesdropping operation, was scheduled for mid-January - but has now been moved up to Tuesday. Despite Mr. Keller's distancing of The Times from "State of War," Mr. Risen's publisher told me on Dec. 21 that the paper's Washington bureau chief had talked to her twice in the previous 30 days about the book.

So it seems to me the paper was quite aware that it faced the possibility of being scooped by its own reporter's book in about four weeks. But the key question remains: To what extent did the book cause top editors to shrug off the concerns that had kept them from publishing the eavesdropping article for months?

A final note: If Mr. Risen's book or anything else of substance should open any cracks in the stone wall surrounding the handling of the eavesdropping article, I will have my list of 28 questions (35 now, actually) ready to e-mail again to Mr. Keller.

The public editor serves as the readers' representative. His opinions and conclusions are his own. His column appears at least twice monthly in this section.

December article on eavesdropping:

December 16, 2005
Bush Lets U.S. Spy on Callers Without Courts
By JAMES RISEN and ERIC LICHTBLAU, NY TIMES
Correction Appended

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WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.

According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.

The Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to the United States, the officials said. Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.

Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States. The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Dealing With a New Threat

While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials.

Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.

The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation's intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials. In response, President Bush significantly eased limits on American intelligence and law enforcement agencies and the military.

But some of the administration's antiterrorism initiatives have provoked an outcry from members of Congress, watchdog groups, immigrants and others who argue that the measures erode protections for civil liberties and intrude on Americans' privacy.

Opponents have challenged provisions of the USA Patriot Act, the focus of contentious debate on Capitol Hill this week, that expand domestic surveillance by giving the Federal Bureau of Investigation more power to collect information like library lending lists or Internet use. Military and F.B.I. officials have drawn criticism for monitoring what were largely peaceful antiwar protests. The Pentagon and the Department of Homeland Security were forced to retreat on plans to use public and private databases to hunt for possible terrorists. And last year, the Supreme Court rejected the administration's claim that those labeled "enemy combatants" were not entitled to judicial review of their open-ended detention.

Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

The National Security Agency, which is based at Fort Meade, Md., is the nation's largest and most secretive intelligence agency, so intent on remaining out of public view that it has long been nicknamed "No Such Agency." It breaks codes and maintains listening posts around the world to eavesdrop on foreign governments, diplomats and trade negotiators as well as drug lords and terrorists. But the agency ordinarily operates under tight restrictions on any spying on Americans, even if they are overseas, or disseminating information about them.

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

Under the agency's longstanding rules, the N.S.A. can target for interception phone calls or e-mail messages on foreign soil, even if the recipients of those communications are in the United States. Usually, though, the government can only target phones and e-mail messages in the United States by first obtaining a court order from the Foreign Intelligence Surveillance Court, which holds its closed sessions at the Justice Department.

Traditionally, the F.B.I., not the N.S.A., seeks such warrants and conducts most domestic eavesdropping. Until the new program began, the N.S.A. typically limited its domestic surveillance to foreign embassies and missions in Washington, New York and other cities, and obtained court orders to do so.

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.

A White House Briefing

After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney's office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.

It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program's legality. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said.

A senior government official recalled that he was taken aback when he first learned of the operation. "My first reaction was, 'We're doing what?' " he said. While he said he eventually felt that adequate safeguards were put in place, he added that questions about the program's legitimacy were understandable.

Some of those who object to the operation argue that is unnecessary. By getting warrants through the foreign intelligence court, the N.S.A. and F.B.I. could eavesdrop on people inside the United States who might be tied to terrorist groups without skirting longstanding rules, they say.

The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant - intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups - and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.

The N.S.A. domestic spying operation has stirred such controversy among some national security officials in part because of the agency's cautious culture and longstanding rules.

Widespread abuses - including eavesdropping on Vietnam War protesters and civil rights activists - by American intelligence agencies became public in the 1970's and led to passage of the Foreign Intelligence Surveillance Act, which imposed strict limits on intelligence gathering on American soil. Among other things, the law required search warrants, approved by the secret F.I.S.A. court, for wiretaps in national security cases. The agency, deeply scarred by the scandals, adopted additional rules that all but ended domestic spying on its part.

After the Sept. 11 attacks, though, the United States intelligence community was criticized for being too risk-averse. The National Security Agency was even cited by the independent 9/11 Commission for adhering to self-imposed rules that were stricter than those set by federal law.

Concerns and Revisions

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.

One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.

A related issue arose in a case in which the F.B.I. was monitoring the communications of a terrorist suspect under a F.I.S.A.-approved warrant, even though the National Security Agency was already conducting warrantless eavesdropping.

According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems. At the time, senior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information.

Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA Patriot Act, which is up for renewal. The House on Wednesday approved a plan to reauthorize crucial parts of the law. But final passage has been delayed under the threat of a Senate filibuster because of concerns from both parties over possible intrusions on Americans' civil liberties and privacy.

Under the act, law enforcement and intelligence officials are still required to seek a F.I.S.A. warrant every time they want to eavesdrop within the United States. A recent agreement reached by Republican leaders and the Bush administration would modify the standard for F.B.I. wiretap warrants, requiring, for instance, a description of a specific target. Critics say the bar would remain too low to prevent abuses.

Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans. "Nothing could be further from the truth," wrote John Yoo, a former official in the Justice Department's Office of Legal Counsel, and his co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping program.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., "Can the National Security Agency, the great electronic snooper, spy on the American people?"

"Generally," Mr. Mueller said, "I would say generally, they are not allowed to spy or to gather information on American citizens."

President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

The Legal Line Shifts

Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said 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 constitutional authority."

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

Barclay Walsh contributed research for this article.

Correction: Dec. 28, 2005, Wednesday:

Because of an editing error, a front-page article on Dec. 16 about a decision by President Bush to authorize the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without warrants ordinarily required for domestic spying misstated the name of the court that would normally issue those warrants. It is the Foreign - not Federal -Intelligence Surveillance Court.

More on Mr. Woo:
Published on Friday, May 21, 2004 by the New York Times
Justice Memos Explained How to Skip Prisoner Rights
by Neil A. Lewis

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WASHINGTON, May 20  A series of Justice Department memorandums written in late 2001 and the first few months of 2002 were crucial in building a legal framework for United States officials to avoid complying with international laws and treaties on handling prisoners, lawyers and former officials say.

The confidential memorandums, several of which were written or co-written by John C. Yoo, a University of California law professor who was serving in the department, provided arguments to keep United States officials from being charged with war crimes for the way prisoners were detained and interrogated. They were endorsed by top lawyers in the White House, the Pentagon and the vice president's office but drew dissents from the State Department.

The memorandums provide legal arguments to support administration officials' assertions that the Geneva Conventions did not apply to detainees from the Afghanistan war. They also suggested how officials could inoculate themselves from liability by claiming that abused prisoners were in some other nation's custody.

The methods of detention and interrogation used in the Afghanistan conflict, in which the United States operated outside the Geneva Conventions, is at the heart of an investigation into prisoner abuse in Iraq in recent months. Human rights lawyers have said that in showing disrespect for international law in the Afghanistan conflict, the stage was set for harsh treatment in Iraq.

One of the memorandums written by Mr. Yoo along with Robert J. Delahunty, another Justice Department lawyer, was prepared on Jan. 9, 2002, four months after the terrorist attacks in New York and Washington. The 42-page memorandum, entitled, "Application of treaties and laws to Al Qaeda and Taliban detainees," provided several legal arguments for avoiding the jurisdiction of the Geneva Conventions.

A lawyer and a former government official who saw the memorandum said it anticipated the possibility that United States officials could be charged with war crimes, defined as grave breaches of the Geneva Conventions. The document said a way to avoid that is to declare that the conventions do not apply.

The memorandum, addressed to William J. Haynes, the Pentagon's general counsel, said that President Bush could argue that the Taliban government in Afghanistan was a "failed state" and therefore its soldiers were not entitled to protections accorded in the conventions. If Mr. Bush did not want to do that, the memorandum gave other grounds, like asserting that the Taliban was a terrorist group. It also noted that the president could just say that he was suspending the Geneva Conventions for a particular conflict.

Prof. Detlev Vagts, an authority on international law and treaties at Harvard Law School, said the arguments in the memorandums as described to him "sound like an effort to find loopholes that could be used to avoid responsibility."

One former government official who was involved in drafting some of the memorandums said that the lawyers did not make recommendations but only provided a range of all the options available to the White House.

On Jan. 25, 2002, Alberto R. Gonzales, the White House counsel, in a memorandum to President Bush, said that the Justice Department's advice was sound and that Mr. Bush should declare the Taliban as well as Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law, which, as Mr. Gonzales noted, carries the death penalty.

The Gonzales memorandum to Mr. Bush said that accepting the recommendations of the Justice Department would preserve flexibility in the global war against terrorism. "The nature of the new war places a high premium on other factors such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians," said the memorandum, obtained this week by The New York Times. The details of the memorandum were first reported by Newsweek.

Mr. Gonzales wrote that the war against terrorism, "in my judgment renders obsolete Geneva's strict limitations on questioning of enemy prisoners."

Mr. Gonzales also says in the memorandum that another benefit of declaring the conventions inapplicable would be that United States officials could not be prosecuted for war crimes in the future by prosecutors and independent counsels who might see the fighting in a different light.

He observed, however, that the disadvantages included "widespread condemnation among our allies" and that other countries would also try to avoid jurisdiction of the Geneva Conventions. It also meant that the United States might have difficulty in invoking the conventions in protecting its own personnel who might be captured by an enemy.

Another memorandum from the Justice Department advises officials to create a situation in which they could plausibly claim that abused prisoners were never in United States custody.

That memorandum, whose existence was acknowledged by two former officials, noted that it would be hard to ward off an allegation of torture or inhuman treatment if the prisoner had been transferred to another country from American custody. International law prohibits the "rendition" of prisoners to countries if the possibility of mistreatment can be anticipated.

The former officials said that memorandum was explicit in advising that if someone were involved in interrogating detainees in a manner that could cross the line into torture or other prohibited treatment, that person could claim immunity only if he or she contended that the prisoner was never in United States custody.

The Gonzales memorandum provoked a response from Secretary of State Colin L. Powell on Jan. 26 in which he strongly suggested that the advantages of applying the Geneva Conventions far outweighed their rejection. He said bluntly that declaring the conventions inapplicable would "reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops." He also said he would "undermine public support among critical allies."

Douglas Jehl contributed reporting for this article.

Copyright 2004 The New York Times Company

DOMESTIC SURVEILLANCE: THE ADVOCATE; A Junior Aide Had a Big Role In Terror Policy
By TIM GOLDEN, NY Times
Published: December 23, 2005

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Moments after planes crashed into the World Trade Center and the Pentagon, lawyers in the Justice Department's elite Office of Legal Counsel began crowding into the office of one of the agency's newest deputies, John C. Yoo, to watch the horror unfold on his television set.
'We all stood around watching this event, and he just seemed very calm, like he wasn't going to let these terrorists stop him from doing his work,' recalled Robert J. Delahunty, a friend of Mr. Yoo's who worked in the office.

Fearful of another attack and told that all 'nonessential personnel' should evacuate, Mr. Delahunty and others streamed out of the department's headquarters and walked home. Mr. Yoo, then a 34-year-old former law professor whose academic work had focused on foreign affairs and war-powers issues, was asked to stay behind, and he quickly found himself in the department's command center, on the phone to lawyers at the White House.

Within weeks, Mr. Yoo had begun to establish himself as a critical player in the Bush administration's legal response to the terrorist threat, and an influential advocate for the expansive claims of presidential authority that have been a hallmark of that response.

While a mere deputy assistant attorney general in the legal counsel office, Mr. Yoo was a primary author of a series of legal opinions on the fight against terrorism, including one that said the Geneva Conventions did not apply and at least two others that countenanced the use of highly coercive interrogation techniques on terror suspects. Recently, current and former officials said he also wrote a still-secret 2002 memorandum that gave legal backing to the administration's secret program to eavesdrop on the international communications of Americans and others inside the United States without federal warrants.

A genial, soft-spoken man with what friends say is a fiercely competitive streak, Mr. Yoo built particularly strong working relationships with several key legal officials in the White House and the Pentagon. Some current and former government officials contend that those relationships were in fact so close that Mr. Yoo was able to operate with a degree of autonomy that rankled senior Justice Department officials, including John Ashcroft, then the attorney general.

More than two years after Mr. Yoo returned to teaching, controversy over some of the legal positions he staked out for the administration in his two years in government has only continued to grow. Last year, an opinion he wrote on interrogations with the head of the legal counsel office, Jay S. Bybee, was publicly disavowed by the White House, a highly unusual step. Now, the revelation of the eavesdropping program has renewed the criticism.

In the uproar, Mr. Yoo has stood fast and even smiled cheerfully. Despite occasional campus protests and calls for his resignation, he has remained -- somewhat incongruously but, he says, quite happily -- on the law faculty at the liberal University of California, Berkeley. He keeps a busy schedule of speeches and debates at colleges and universities around the country. He is promoting a new book, and appears frequently on television to take on legal and policy issues that many former officials will discuss only under cloak of anonymity.

'I didn't go into these subjects looking for a brawl,' Mr. Yoo said in an interview. Of his work at the Justice Department he added: 'I had this job, and I had these questions to answer. I think it's my responsibility to explain how I thought them through.'

Mr. Yoo is often identified as the most aggressive among a group of conservative legal scholars who have challenged the importance of international law in the American legal system. But his signature contributions to the policies of the Bush administration have had more to do with his forceful assertion of wide presidential powers in wartime.

While Mr. Yoo has become almost famous for some of his writings -- the refutation of both his academic and government work has become almost a cottage industry among more liberal legal scholars and human rights lawyers -- much less is known about how he came to wield the remarkable influence he had after Sept. 11 on issues related to terrorism.

That Washington tale began about a decade before Mr. Yoo joined the administration in July 2001, when he finished at Yale Law School and won a clerkship with Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit, a keen spotter of young legal talent and a patriarch of the network of conservative lawyers who have occupied key positions throughout the Bush administration.

By then, Mr. Yoo already thought of himself as solidly conservative. He had grown up with anticommunist parents who left their native South Korea for Philadelphia shortly after Mr. Yoo was born in 1967, and had honed his political views while an undergraduate at Harvard.

From the chambers of Judge Silberman, Mr. Yoo moved on to a clerkship with Justice Clarence Thomas on the Supreme Court, stopping briefly at Berkeley. Justice Thomas helped place him with Senator Orrin G. Hatch, Republican of Utah, as general counsel on the Senate Judiciary Committee.

Along the way, Mr. Yoo passed up a chance to work in the Washington office of the law firm Jones Day, where he caught the eye of a senior partner, Timothy E. Flanigan. After five years that Mr. Yoo spent at Berkeley, writing on legal aspects of foreign affairs, war powers and presidential authority, the two men met up again when Mr. Yoo joined the Bush campaign's legal team, where Mr. Flanigan was a key lieutenant.

Mr. Flanigan became the deputy White House counsel under Alberto R. Gonzales. Mr. Yoo ended up as a deputy in the Justice Department's Office of Legal Counsel, or the O.L.C., a small unit of lawyers that advises the executive branch on constitutional questions and on the legality of complex or disputed policy issues.

After the attacks of Sept. 11, Mr. Yoo -- the only deputy with much expertise on foreign policy and war powers -- began dealing with the White House and other agencies more directly than he might have otherwise.

Mr. Flanigan, who had led the legal counsel office himself at the end of the first Bush administration, was acutely aware of its role in providing a legal grounding for the kinds of policy decisions the White House faced. He called over for advice soon after the World Trade Center towers fell.

'John Yoo, given his academic background and interests, was sort of the go-to guy on foreign affairs and military power issues,' Mr. Flanigan said in an interview, referring to the legal counsel office staff. 'He was the one that Gonzales and I went to to get advice on those issues on 9/11, and it just continued.'

The torrent of opinions that Mr. Yoo churned out in the months that followed was striking, notwithstanding the research and writing assistance he had from lawyers on the office staff. Although only a portion of those documents have become public, copies of some still-confidential memorandums reviewed by The New York Times give a flavor of their sweeping language.

On Sept. 20, Mr. Yoo wrote to Mr. Flanigan about the president's constitutional authority to conduct military operations against terrorists and nations that support them. He noted that two Congressional resolutions recognized the president's authority to use force in such circumstances.

'Neither, however, can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response,' he wrote. Similar language concludes a memo written by Mr. Yoo on Sept. 25, only a week after Congress authorized President Bush to use military force against Al Qaeda and its supporters.

'One concern that people have raised is that John had a lot of these views going into the government and was perhaps overeager to write them,' said Curtis A. Bradley, a law professor at Duke University who, like Mr. Yoo, has written skeptically about the import of international law. 'In terms of war powers, you won't find a tremendous number of scholars who will go as far as he does.'

Mr. Yoo's belief in the wide inherent powers of the president as commander in chief was strongly shared by one of the most influential legal voices in the administration's policy debates on terrorism, David S. Addington, then the counsel to Vice President Dick Cheney. Documents and interviews suggest that those views have been part of the legal arguments underpinning not only coercive interrogation and the prosecution of terrorism suspects before military tribunals but also the eavesdropping program.

Some current and former officials said the urgency of events after Sept. 11 and the close ties that Mr. Yoo developed with Mr. Addington (who is now Mr. Cheney's chief of staff), Mr. Gonzales, Mr. Flanigan and the general counsel of the Defense Department, William J. Haynes II, had sometimes led him to bypass the elaborate clearance process to which opinions from the legal counsel office were normally subjected.

Mr. Yoo's January 2002 conclusions that the Geneva Conventions did not apply to the conflict in Afghanistan and that the conventions' minimum standards did not cover terrorists touched off a long, hard-fought battle within the administration, in which lawyers for the State Department and the military services strongly disputed his views. Thereafter, several senior officials said, those lawyers were sometimes excluded from the drafting of more delicate opinions.

For example, they said, Mr. Yoo's much-criticized 2002 memorandum with Mr. Bybee on interrogations -- which said that United States law prohibited only methods that would cause 'lasting psychological harm' or pain 'akin to that which accompanies serious physical injury such as death or organ failure' -- was not shared with either State Department or military lawyers, despite its implications for their agencies.

'They were not getting enough critical feedback from within O.L.C., or from within the Justice Department, or from other agencies,' one former official said of Mr. Yoo's opinions. Officials said senior aides to Attorney General Ashcroft also complained that they were not adequately informed about some of the Mr. Yoo's frequent discussions with the White House.

Mr. Yoo said he had always duly notified Justice Department officials or other agencies about the opinions he provided except when 'I was told by people very high in the government not to for classification reasons.'

Yesterday, with controversy brewing again about some of the policies on which Mr. Yoo worked, he said he was unmoved.

'If you're being criticized for what you did and you believe that what you did was right, you shouldn't take it lying down,' he said. 'You should go out and defend yourself."

Photos: John C. Yoo has often been a target of liberal scholars and human rights lawyers. But 'I didn't go into these subjects looking for a brawl,' he said.

Points for consistency

LINK

Regarding the President's authorizing spying on Americans by the NSA, the Washington Post reports that...

The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times.
Mr. Yoo is one of the people who, while working as a deputy assistant attorney general for the Justice Department's Office of Legal Counsel, argued, essentially, that torture was legal.

In a commentary in the San Jose Mercury News earlier this year, Yoo explained why the U.S. needn't abide by the Geneva Conventions:

The Justice Department's Office of Legal Counsel -- where I worked at the time -- determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians -- violating the fundamental principle that war is waged only against combatants.
Hmm. Well, aside from the fact that torturing prisoners isn't something any government claiming the moral high ground should condone, let alone take part in, this almost seems a reasonable argument. But note how, in the same commentary, Yoo bends over backwards to keep the Geneva Conventions from applying to the Taliban:

The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.
I see. So by Yoo's logic, if you violate the Geneva Conventions, other governments no longer need to abide by them when dealing with your citizens.

Yoo also had a hand in coming up with a very narrow definition of torture written in in 2002 by the Justice Department for the White House:

Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.
When that definition was leaked to the press, it sparked an outrage. The Justice Department then changed it to say that even acts that fall short of provoking excruciating and agonizing pain might be torture. But that wasn't Yoo's opinion.

Jump to today, when we learn that the President ordered potentially unconstitutional spying on American citizens. Why did he think he had the legal authority to do that? John Yoo -- the guy who argued that we needn't always abide by the Geneva Conventions, and that something is only torture if it inflicts pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Methinks the administration needs to pick its attorneys more carefully.

gnomic says:
Repeating a lie does not make it true; Congress did not authorize Bush to spy on Americans without oversight. Laws are in effect for judicial oversight of that activity and there is no interpretation of the law that gives this administration that power.

This is a naked power grab by this administration, consistent with its ideology that the President has nearly unlimited powers.

This view is not a Conservative view. Nor is it a liberal view. Those of you tossing labels at each other need to stop and read some history. Conservatives want to keep government power and spending limited in order to keep citizens free to make their own choices and suffer the consequences. Liberals want a more active role in government, redistributing wealth for the "common good;" but likewise did not want the government making choices for citizens.

Only a few groups want the government spying on citizens, denying them rights, torturing people from behind cloaks and hoods. You can probably list the governments that do that sort of thing. Few books hold these governments up as the ideals as a beacon for which nations should strive.

Today I see my government defending torture, defending spying, defending actions taken in secrecy in our name. I see this same government caught in lies and deceptions. I see our kids dying to bring democracy to another nation while civil rights are stolen away at home.

This is not actions of a "compassionate conservative" who argued against "nation building." These are the desperate actions and spin of a politician in over his head, ill-advised by men of greed and power.

Our democracy was founded by wise men who did not trust the unchecked power of government, especially one cloaked in secrecy, ignoring the rule of law. Conservatives and Liberals alike should rise up and demand responsible congressional and judicial oversight, investigation and perhaps even impeachment. For if lying about an affair is impeachable, this subversion of Democratic principles and Presidential oath of office is treasonous at the very least.

CK says:
Anyone care to venture where Mr. Yoo works now?