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Copyrighted material 404: Information Missing From Your Daily News

Summaries of under-reported news, updates on previous Monitor stories

 + WELCOME TO THE STAR CHAMBER   President Bush has now signed into law the Anti-Terrorist Act of 2001, which bestows sweeping new police powers on the FBI, CIA, and other federal law enforcement agencies. That's happy news for fearful Americans who want to turn the clock back to before Sept. 11. Several polls showed that a majority of the public are willing to forfeit some (unspecified) civil liberties if it will help make America again safe from terrorism. While the new laws can't guarantee that we'll be any safer, it is certain that we've lost a goodly measure of our freedom. It will be months, maybe years, before we learn how much of the Bill of Rights that Congress and the Bush administration have just thrown away.

One of the key parts of the new law expand the powers of the FISA (Foreign Intelligence Surveillance Act) court. Until recentl events, hardly anyone even knew this court existed, although it was created nearly a quarter-century ago. In 1995, MONITOR published the first feature article on the secret FISA court and its ability to issue warrants with no public scrutiny whatsoever. Since the FISA court began in 1979, it has proved to be a great friend of law enforcement; it has approved over 12 thousand warrants, and denied only one.

FISA became law during the Carter years as a special court to fight terrorism (ironically, it was also intended as a way to rein in widespread abuses of the Nixon White House and Hoover FBI, when the feds were eavesdropping on conversations or burglarizing the homes of suspects -- as well as their political enemies). If national security were really at risk, Congress reasoned at the time, then it was okay to play fast-and-loose with the Fourth Amendment, which promises no unreasonable searches and seizures unless there is probable cause. But that only applies to criminal cases, Congress said in 1978; wiretapping enemies of our country was different.

A few weeks after the 1995 Oklahoma City bombing, Clinton expanded FISA court powers dramatically by letting the court authorize black-bag operations -- sneaking into homes or businesses when no one's around and taking away anything they deem suspicious. The suspect has no right to know what items were taken. The person under investigation doesn't even have to be suspected of a crime; it's enough that they associate with someone that's a target, or even just belong to a group that the Justice Department thinks might be suspicious. Clinton's last year was the busiest in the court's history, with over 1,000 warrants issued -- more than twice the number of criminal case wiretaps issued by federal judges during the same time.

But after Sept. 11 the Bush administration wanted even broader powers. The bogeyman in this case was Zacarias Moussaoui, a Morroco-born man who was arrested by the FBI exactly one month before the jetliner terrorist attacks. Moussaoui reportedly sought training on flying a jet -- but didn't seem interested in learning any take-off or landing skills. FBI agents wanted search warrants, but Bureau and DoJ supervisors felt there wasn't enough evidence for either a conventional federal court or a FISA court search warrant. But when authorities discovered after Sept. 11 that Moussaoui had called a roommate of hijacker Mohammed Atta, he became the FBI's posterboy for the urgent need for roaming wiretaps -- the ability of the feds to tap any phone that a suspect might use, instead of a specific telephone line.

The new anti-terrorist laws make only small changes to the court's powers --more ability to authorize "pen registers," for example -- but these subtle changes in the wording open the door to broad police surveillance. Earlier, the FISA court could authorize a spy operation only if foreign intelligence was "the purpose." As a Baltimore Sun analysis pointed out, the new rules make foreign intelligence "'a significant purpose,' allowing criminal investigation as a simultaneous goal."

Besides the Baltimore Sun, only a handful of newspapers or other media have even mentioned the FISA court connection, much less raised questions about its new powers. The LA Times provided an important interview with Morton Halperin, a former State Department policy advisor who helped write the original FISA law. "That [new] definition can leave the government a lot of room," Halperin said, noting that some Vietnam War protesters were labeled as foreign agents to justify government surveillance in the Nixon years.

There are also serious questions whether members of Congress understood what they were authorizing. The Anti-Terrorist Act was rushed through in less than six weeks after the Sept. 11 attacks; there was no chance for public comment on the broad, new FISA changes, and given the few comments made by members of Congress, it's doubtful that most understood the possible far-reaching impacts. As columnist Robert Scheer notes "...because of the pressure to pass something -- anything! -- and the fact that congressional staffs were locked out of their offices because of an anthrax scare, few in Congress had even read summaries, let alone the fine print, of the document they so hastily passed."

Only one Senator had the foresight -- and the courage -- to vote against the Act and to speak out. On the same day that the Senate approved the Anti-Terrorist Act, Senator Russ Feingold (D - Wisconsin) made a brave and prophetic statement on the Senate floor:

I am also very troubled by the broad expansion of government power under the Foreign Intelligence Surveillance Act, known as FISA. When Congress passed FISA in 1978 it granted to the executive branch the power to conduct surveillance in foreign intelligence investigations without meeting the rigorous probable cause standard under the Fourth Amendment that is required for criminal investigations. There is a lower threshold for obtaining a wiretap order from the FISA court because the FBI is not investigating a crime, it is investigating foreign intelligence activities. But the law currently requires that intelligence gathering be the primary purpose of the investigation in order for this lower standard to apply.

This bill changes that requirement. The government now will only have to show that intelligence is a "significant purpose" of the investigation... It seems obvious that with this lower standard, the FBI will try to use FISA as much as it can. And of course, with terrorism investigations that won't be difficult, because the terrorists are apparently sponsored or at least supported by foreign governments...

The significance of the breakdown of the distinction between intelligence and criminal investigations becomes apparent when you see the other expansions of government power under FISA in this bill. One provision that troubles me a great deal is a provision that permits the government under FISA to compel the production of records from any business regarding any person, if that information is sought in connection with an investigation of terrorism or espionage.

Now we're not talking here about travel records pertaining to a terrorist suspect, which we all can see can be highly relevant to an investigation of a terrorist plot. FISA already gives the FBI the power to get airline, train, hotel, car rental and other records of a suspect.

But under this bill, the government can compel the disclosure of the personal records of anyone -- perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called by -- the target of the investigation.

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Feingold ends with a chilling prediction: "Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering... This is a truly breathtaking expansion of police power."

But could it all be worth it? Had the new FISA court powers existed in August when the FBI nabbed Zacarias Moussaoui, could they have uncovered the Sept. 11 terror conspiracy and thwarted it? The answer is no.

Justice Department officials told the Washington Post that they simply had no clue that a plot was afoot; had they known about Moussaoui's indirect connection to Mohammed Atta it would have meant nothing -- Atta wasn't on their radar. Warning flags weren't even raised when French intelligence alerted the U.S. that Moussaoui was linked to "radical Islamic extremists" about ten days before the attack, according to the Post.

If the Bush White House can use Moussaoui as a patsy to justify broad FISA warrants, he's also a lesson in how such police powers can be abused. After all, the case of Zacarias Moussaoui doesn't teach that our government could stop terrorism -- only that our government could collect random bits of intelligence that might be valuable in hindsight. Is that worth trashing the Fourth Amendment? (October 30, 2001)

 + BUSH AND THE MISSING BILLIONS, PART II   It was always a safe bet that someone in the Bush cabinet would stumble during the first year, but it was anyone's guess who would be first to trip over their ethics. Would it be Energy Secretary Spencer Abraham, who took more than $700,000 from the auto companies during his failed bid for Senate reelection last year? Would the scandal be Attorney General John Ashcroft's ties with Microsoft, the target of the most important anti-trust case in two decades? Or maybe Health and Human Services Secretary Tommy Thompson's close relationship with cigarette killer Phillip Morris? As it turns out, the winner is idealogue Secretary of the Interior Gale Norton, who was both threatened with jail this month and caught lying to Congress.

Norton's lies surfaced October 19, when a watchdog group, Public Employees for Environmental Responsibility, documented that she had falsified data about the Arctic Refuge, currently under consideration for oil and natural gas exploration. As explained in the related news article in this issue, there's no wiggle room for claiming she made a few honest mistakes -- Norton doctored numbers and claimed a science report stated the opposite of its real findings. If not for the media's current War On Terrorism fixation, this would probably be a page-one scandal.

But even more outrageous are recent developments in the Indian Trust Fund quagmire. Last week lawyers asked a federal judge to throw Norton and 38 other bureaucrats in jail for lying and covering up their involvement in the worst financial scandal in U.S. history. This is no toothless threat; Norton's predecessor, Bruce Babbitt, was fined $625,000 for contempt of court on lesser charges related to this case.

Like Babbitt, Norton is insisting that a new, massive computer system will straighten it all out. At issue is tracking income from about 170 thousand properties. An average of one property is entered into the computer database every day, and even the accuracy of that data is questionable. A preliminary study found 1 out of 3 documents to be a duplicate or wrong.

The troubles began in 1887, when the federal goverment sought a way to legalize the exploitation of tribal lands. Over 11 million acres of tribal land were being used for cattle grazing, logging, mining, and other purposes, and it was the responsibility of the Interior Dept. BIA (Bureau of Indian Affairs) to collect useage fees and hold them in a trust fund for Native people. But every audit since 1928 has found billions missing from the trust fund. A 1996 class action suit was filed, charging that at least $10 billion is owed to 300,000 descendants of the original Native land owners. Between $300-500 million is collected each year. (For much more background, see the earlier 404 item.)

Norton bears no blame for abuses in the Clinton years (or, for that matter, the Grover Cleveland years), but the court-appointed supervisor's reports accuse Norton of falsifying information. Hey, is there a pattern here?

Supervisor Joseph S. Kieffer III has now filed four reports this year (read the most recent), with the last two blasting Norton for trying to mislead the judge in charge of the case. He refused to sign the last report from Norton's office: "No senior DOI official would touch that report with a 10-foot pole," Kieffer told the Denver Post. The official in charge of the trust fund and other top administrators wouldn't sign it either, but Norton submitted it to the court anyway. "The secretary of the interior has verified an untruthful, inaccurate and incomplete" quarterly report, he wrote to the judge. "The cry that 'it didn't happen on our watch' can no longer provide a defense for this administration," Kieffer said.

Dennis Gingold, lead attorney for the Native plaintiffs, again demanded that the project be turned over to an independent agency. "The secretary and her appointees and senior management and her counsel have acted in concert to perpetrate a fraud on this court. They don't care about doing their job. They just care about making it appear to the court that they are doing their job."

Footnote for conspiracy hounds: the judge in charge of resolving the trust fund mess is U.S. District Judge Royce Lamberth, who is also Chief Judge of the FISA court -- see story above. (October 21, 2001)

 + A DECOMMISSIONED NUCLEAR PLANT IS A SAFE ONE   The public frets over nuclear power plant security in the wake of September 11, and for good reason. The Nuclear Regulatory Commission recently admitted that operating nuclear plants are not as safe as was first claimed after the attacks. Guards at the San Onofre, California, plant, for instance, came up short after a mock attack staged by the NRC in November, 2000. While originally the NRC said reactor buildings could withstand an airplane's collision, the word now is that, well, reactors could withstand a crash from an older-model plane, but the big, wide-bodied planes used on long-haul trips might be a problem. The state of New Jersey is worried enough that it sent out National Guards earlier this month to protect its plants.

Has that stopped NRC and industry plans to re-license aging reactors or build new ones? Not in a heartbeat. An accident from a plant with old, leaky, cracked and brittle containment can cause as much, as they say, "collateral damage," as a terrorist hit. Carnage from such a crash into a medium-sized nuclear plant would dwarf the deaths from the World Trade Center crashes. The Committee on Interior & Insular Affairs, in a conservative 1982 estimate, predicted about 30,000 deaths from a nuclear accident.

Two weeks after the Sept. 11 attacks, the commission floated a draft plan to "reduce the regulatory burden" for new nuclear plants. The commission also plans to cut out formal hearings on license extensions. The new plan is to have informal administrative hearings with no cross-examination and no discovery. The Nuclear Information and Resource Service contends this would eliminate the public's due process and provides a "new selling point to investors considering building more atomic reactors." The NRC stuck to its September 14 deadline for comments on the revised legal process.

These are disparate parts of what anti-nuclear activists call, "McLicensing." While there are several streamlining procedures planned under the current re-licensing regime, the bigger picture is a process called GALL, for "generic aging lessons learned." Last year a MONITOR story, "Nuclear Power Industry Seeks Life Extension For Aging Plants" reported that the NRC was quickly pushing through this re-licensing plan with no real opportunity for public comment. The overall report was approved in July, noting that some generic aging safety requirements passed muster, and some needed more review.

GALL allows nuclear plant owners a less expensive, less intrusive and faster way to secure an extended license. Nuclear owners can still apply for extensions under current rules, which, they say, are onerous in light of experience and the lack of accidents since Three Mile Island in 1979.

The NRC and the nuclear industry claim that increased experience and better management has made plants safe enough to be run the extra years. Under GALL management, certain parts of all nuclear plants are treated generically for license extension purposes. Environmentalists criticize GALL for many reasons, primarily, though, because a plant, for instance, on the edge of the Great Lakes is subject to a certain set of stresses and one on California's earthquake-prone coast is subject to far different stress.

Two days after the terrorist attacks, the Union of Concerned Scientists issued a briefing on GALL which notes 15 instances of problems with nuclear plants due to aging since March, 2000. Those include a September 27, 2000 incident at Diablo Canyon where aged insulation caused "phase-to-phase arcing" resulting in automatic shut down and an April 2, 2001 incident at San Onofre where a 25-year-old breaker failed and started a fire, causing a shut down.

Even the old method of re-licensing nukes with its formal hearings and drawn-out process does not catch aging problems. In May, 2000, the NRC, through the non-GALL process, granted a 20-year extension to Duke Power's 2,500 MW Oconee plant in South Carolina. Six months later, cracks due to aging control rod drive mechanism nozzles were discovered. If those fail, reactor water leaks out. The license extension has not been revoked. Oconee was the second nuclear plant to win a license extension under pre- GALL rules.

But while it was widely reported that the Bush-Cheney energy plan supported building new nuclear plants, the plan actually threw its support behind GALL and increasing the capacity of existing plants. Building new nuclear plants may raise not- in- my- backyard political backlash, but extending the life of current ones is politically acceptable. Also, according to the Center for Responsive Politics, the Nuclear Energy Institute -- the industry trade organization -- gave $334,716 in campaign contributions (three out of four dollars went to Republicans) as of July for next years election's. The Center equates the contributions with passing the Bush-Cheney energy plan.

A license extension could lead to a higher probability of an accident due to power plant aging -- the NRC considered, but dismissed many of those concerns. What was never considered under GALL's streamlined process, is that a re-licensed plant also presents a tempting terrorist target for an extra 20 years. (J.A. Savage, October 12, 2001)

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