Monday, December 26, 2005

Bully Bolton: The American Prospect

The Arsonist
In his first six months at the UN, John Bolton has offended allies, blocked crucial negotiations, undermined the secretary of state -- and harmed U.S. interests. We expected bad; we didn’t expect this bad.

By Mark Leon Goldberg
Issue Date: 01.05.06

There is an excellent coffee shop in the basement of the United Nations building in New York. The espresso is served bitter and strong, Italian style. Sandwiches can be bought on hard French baguettes, and the pastries are always fresh. Whenever a meeting lets out in one of the conference rooms adjacent to the shop, diplomats make a beeline to the cash registers. Others light cigarettes: Though the United Nations is in Manhattan, New York Mayor Michael Bloomberg’s anti-smoking crusade has not yet penetrated the complex, which sits on international land; so, beneath conspicuous no-smoking signs, diplomats routinely light up, creating a hazy plume that gives the Vienna Café a decidedly European feel.

The European way of doing things, in the weeks preceding the mid-September 2005 United Nations World Summit, could not be stretched to include the 35-hour workweek. For days, frantic negotiations on the substance of far-ranging UN reforms dragged on from 8 a.m. to 1 a.m. But the one UN ambassador who generally arrived earliest and stayed latest always looked more upbeat than his bleary-eyed counterparts. “All night -- all right!” quipped John Bolton to a press stakeout.

There was a reason for Bolton’s cheer: He was the man most responsible for the complexity of these negotiations. A month earlier, the newly minted, recess-appointed U.S. ambassador had sent negotiations into a tailspin when he submitted some 750 alterations to a 39-page text known as the “summit outcomes” document. Bolton’s most eye-popping suggestion at this summit, billed as a renewal of the UN’s 5-year-old pledge to help poor countries, was that all 14 references in the document to the anti-poverty Millennium Development Goals (MDGs) be deleted.

The MDGs grew out of a global agreement on poverty eradication known as the Millennium Declaration, which was signed at a UN summit in September 2000. The “goals” that Bolton tried to nix include, among other things, reducing by half the number of people who live on less than a dollar a day -- right now, 1.3 billion -- by 2015. While the United States had never signed the agreement, the goals were never a target of Bush administration animus before Bolton came aboard.

Bolton’s stance on the MDGs caused an uproar. In addition to the G-77 bloc of developing nations that had the most to lose from the elimination of MDGs, the British, who had recently played host to a G8 summit focusing on African poverty, were particularly livid. Even the United States itself seemed to back away. In a meeting with representatives of nongovernmental organizations shortly after Bolton’s edits were leaked to The Washington Post for an August 25 story, Undersecretary of State for Political Affairs Nicholas Burns refused to confirm or deny that, per Bolton, the United States was dropping its support of the MDGs. To those in the room, wise to the oblique lingua franca of the diplomatic world, Burns’ pullback hinted that Bolton had forged his own policy on the MDGs -- ahead of Secretary of State Condoleezza Rice.

The Prospect has learned that, in the end, it took Rice’s personal intervention to set things right. On September 5 she participated in a conference call with UN Secretary-General Kofi Annan and British Foreign Minister Jack Straw on the subject of UN reform. The next day, Bolton sent a letter to his UN counterparts relenting on the issue. Finally, to put all lingering questions about U.S. support of the MDGs to rest, President Bush himself stated America’s firm commitment to them in his September 14 speech to the UN General Assembly.

When Bolton was nominated in March 2005, the Bush administration seemed invincible at home and abroad. Having won an election based on his handling of a war to which the UN had refused to grant its imprimatur, Bush started his second term with a self-proclaimed mandate to impose his aggressive doctrine to the far reaches of the globe. Flying high, Bush and Vice President Dick Cheney sent Bolton, a combative State Department official and longtime Cheney confidant, to do to the UN what their two previous ambassadors to Turtle Bay could not: make the world body a wholly owned subsidiary of Bush foreign policy.

That was the plan. But over the past 10 months, Bush’s poll numbers have plummeted while Iraq has taxed every ounce of American diplomatic and military resources. Bolton, meanwhile, never seems to have gotten the memo that times have changed; he remains a fire-breathing caricature of Bush’s first-term, “shoot first, do diplomacy later” outlook. And that approach is no longer sustainable. At least one comparatively saner Bush administration official knows this. And so the tension between Rice and Bolton has grown dramatically in several areas, most notably with regard to Syria: The Prospect has learned that Bolton was the source of an October leak to the British press that submarined sensitive negotiations Rice was overseeing with that country.

By December, a looming crisis over the UN budget was testing Bolton and Rice’s relationship once again. At the time of this writing, the United Nations was in chaos. Kofi Annan had just canceled a trip to Asia to oversee negotiations over the UN’s biennium budget, which was being derailed by an American threat to withhold support for the UN’s two-year operating budget until a number of management reforms are passed. With a December 31 deadline looming, Bolton proposed that the world body adopt a three- or four-month interim budget -- just enough time to force other member states to accept the reforms.

These reforms are backed by Europe, Canada, Australia, New Zealand, Japan, and the secretary-general himself. Yet Bolton’s strong-arm tactics led their representatives to warn that his proposal would starve the United Nations and disrupt other important UN business like peacekeeping operations.

The rumor mill at the Vienna Café has suggested that Bolton must have bypassed Rice and received support for holding the UN budget hostage from the president himself -- a view widely held as the truth among UN diplomats. Regardless of the accuracy of this rumor, Bolton’s move is paradigmatic of his self-defeating approach to the UN: Instead of banding together with powerful allies, he alienates them. And in doing so he empowers adversaries like Iran, Venezuela, Cuba, and other spoilers content with a UN that is tied in knots. Critics feared that Bolton’s tenure would be problematic for American interests. The evidence suggests it’s been even worse.

* * *

For progressive Washington, Bolton’s nomination was a dagger in the heart. In his two decades in and out of public service, Bolton had earned a well-deserved reputation as one of Washington’s least diplomatic figures. How could the United States send a man to the United Nations who quipped that if the UN building lost 10 of its 38 floors, “it wouldn’t make a difference”? Progressives knew -- indeed, everyone knew -- that Bolton’s role at the UN would not be merely to represent U.S. interests but to bully the international body into subservience.

Buoyed by an outpouring of grass-roots support and sustained media pressure, Democrats on the Senate Foreign Relations Committee fought hard against the nomination. During the six-month confirmation process, Bolton was repudiated by a large bipartisan coalition of former American diplomats, and new tales of Bolton’s browbeating of subordinates were emerging by the day. The opposition culminated with a former State Department intelligence official testifying that Bolton is a “quintessential kiss-up, kick-down kind of guy.” Overnight, Bolton became a national symbol of the boss from hell. Eventually Senator George Voinovich of Ohio broke ranks with his Republican counterparts on the committee, refusing in a May 13 vote to support Bolton’s nomination. (Later he choked back tears on the Senate floor when he invoked the image of his grandchildren living in a world where Bolton was the ambassador to the UN.) But the Bush administration, still riding its bellicose high, pushed on. On August 1, to circumvent the stalled nomination, Bush gave Bolton a recess appointment, the first time that that constitutional maneuver had been used for an ambassador to the United Nations.

The next day, Bolton arrived at work, already living up to his boss-from-hell reputation. Eight months before, he had sent shivers down the spine of staffers at the United States Mission to the United Nations with an e-mail from his chief of staff saying he required a copy of everyone’s résumé. By the time he set foot in his new office, morale was already low.

The Prospect has learned that Bolton’s first staff meeting did little to improve things: He told the roughly 100 people present that he wanted to personally sign off on every cable from the mission to Washington. There can be up to five of these cables sent to Foggy Bottom each day, and though the ambassador technically signs them, in practice previous UN ambassadors would not normally read them all. “He wanted to get in the weeds,” said someone present at that meeting. “It seemed to be his way of scaring people.” (Despite repeated requests, Bolton’s office would not comment for this article.)

In a move that further disturbed some of the staff at the mission, the Prospect has also learned, Bolton put the kibosh on routine visits to Washington, where mission staffers often travel to consult with colleagues at Foggy Bottom who share a similar portfolio. And he has consolidated his oversight of the expenditure of so-called representational funds, the petty cash that the mission gives to staffers to take people out to lunch and otherwise “do diplomacy.”

* * *

The maltreatment of Bolton’s staff, however, was nothing compared with the bullying of the United Nations that would follow. When he arrived at Turtle Bay, Bolton stepped into the middle of negotiations on the most extensive set of UN reforms since the world body’s founding 60 years ago. On the table was a wide-ranging set of reforms, most of which had been championed by the United States: replacing the discredited Human Rights Commission (notorious for including such beacons of freedom as Sudan) with a new and improved Human Rights Council; increasing administrative oversight in light of the oil-for-food scandal; creating a new “Peace Building Commission” to help with postconflict reconstruction; working toward a strong definition, and condemnation, of terrorism; and making a forceful statement on nuclear nonproliferation.

Bolton, however, has been unable to deliver on most of these reforms. When he submitted his 750 edits of the working draft of UN reforms two weeks after arriving, he had insisted on going line by line through the document as a way to maximize U.S. gains. But rather than bolstering the United States’ bargaining position, the approach largely backfired. It gave spoiler countries like Pakistan, Cuba, and Venezuela the opening they needed to pursue maximalist positions on their own pet issues, and allowed countries with less-than-stellar human-rights records to undermine America’s insistence that the new Human Rights Council must exclude countries under UN sanction.

To make matters worse, once the negotiations devolved into a painstaking process of debating each word of the document, spoiler countries were rewarded by striking temporary bargaining alliances on single issues, or sometimes even on single sentences. Again, this was largely to the detriment of U.S. interests. For example, when Bolton tried to purge the section concerning nonproliferation of any mention of disarmament, the alliance of Israel, India, and Pakistan -- nuclear powers that are not parties to the Treaty on the Non-proliferation of Nuclear Weapons -- retorted by introducing language emphasizing disarmament and deleted references to the non-proliferation treaty. “We could not get back the balance between nonproliferation and disarmament [from earlier drafts],” a European diplomat told Jim Wurst of the Global Security Newswire. Eventually the entire section was scrapped. By the time heads of state signed on to reforms, the document contained not a single word on nuclear nonproliferation, and had even lost its pledge to keep weapons of mass destruction out of the hands of terrorists.

To be sure, the reform agenda was ambitious. But well before the summit, Secretary-General Annan had outlined a basic strategy in which member states with competing interests could work together to pass all the reforms as a package. In a seminal Foreign Affairs article published in May, Annan called for a “new San Francisco moment,” referring to the location where the treaty creating the UN was signed 60 years before, and conceptualized a framework in which rich and poor member states could strike a grand bargain that would address their respective needs. But in the end, the document signed by the assembled heads of state was the bland culmination of a last-minute sprint to the lowest common denominator on nearly every major issue. “It became a salvage operation,” said David Shorr of the Stanley Foundation. And with the notable exception of adopting the principle that the international community has the “responsibility to protect” vulnerable populations threatened by genocide or crimes against humanity, all the contentious issues, such as the mandate and makeup of the Human Rights Council, were kicked to the General Assembly for further discussion.

At a press conference the day after the assembly agreed to a set of reforms, Annan tried to put a positive spin on the outcome, but he looked uncharacteristically deflated. His notion of grand trade-offs between rich and poor counties ran square into Bolton’s zero-sum negotiations. A San Francisco moment this was not.

With the summit ingloriously concluded, the focus of the world’s diplomats and the press that covers them turned across town. Over sushi at the swanky Nobu restaurant and wine receptions at the Museum of Modern Art, they celebrated Bill Clinton’s new Clinton Global Initiative to help lift developing countries from poverty. But back in the far less comfortable confines of the UN building, the difficult task of implementing the reforms still lay ahead. And, once again, Bolton complicated that task. He did not recalibrate strategy by, say, teaming up with allies to strong-arm countries that are hostile to shared reform priorities. Rather, he set up a confrontation with the very same countries that might have been our best partners in the implementation of those reforms.

Bolton achieved this feat just a few short weeks before the December 31 deadline by threatening to withhold U.S. support for the UN’s $3.9 billion budget. Since the 1980s, the UN’s biennial budget has been adopted by consensus, a system encouraged by none other than the Reagan administration to ensure that poor countries could not frivolously increase the budget, the bulk of which is paid for by a handful of wealthy nations. Now that fear has been reversed: The UN’s largest contributor is threatening to use the consensus process to block the UN’s budget. Bolton has argued against passing the new biennial budget which begins January 6, without implementing management reforms that are generally opposed by the G-77 bloc of developing countries and favored by Annan and the Western world. Instead, he proposed an interim budget that would last a few months, during which time he would be able to push through the managerial reforms.

The reforms that Bolton advocates are badly needed; they would at once streamline the UN’s ossified bureaucracy and expand the office of the secretary-general to ensure greater accountability and oversight on the part of UN programs. Bolton, however, is alone in the view that the budget needs be delayed until these reforms are passed. Annan and his staff forcefully oppose any budgetary postponement—as does virtually every other UN member state. On November 30, The New York Times reported that Warren Sach, assistant secretary-general and controller of the UN, said that Bolton’s interim budget would give the UN a deficit of $320 million in the first quarter of 2006. Among the options to close the deficit is taking money from the separate peacekeeping budget. “This place does not run on air,” he lamented. Should an interim budget be adopted, the United Nations would have to significantly curtail expenditures for the first quarter.

Bolton’s budget proposal was also the subject of a rare public dispute between the United States and one of its closest allies at the UN. On November 23, Britain’s habitually soft-spoken UN ambassador, Emyr Jones Parry, openly rebuffed Bolton’s overture to have Britain join him in opposing the budget. “We are not in favor of holding any individual items or the budget hostage to other issues,” he announced. Echoing his concern was the UN’s second-largest financial contributor and staunch advocate of managerial reforms, Japan, which contributes 19 percent of the total UN operating budget. Not to worry: As one South American diplomat dryly ridicules, “[Bolton] can probably still bring along his usual allies—Palau and the Marshall Islands.”

* * *

In announcing the president’s nomination of Bolton, then the undersecretary of state for arms control and international security, Secretary Rice donned a happy face. Despite her enthusiastic exterior, though, this moment would mark the start of a new phase in their rocky relationship -- one in which Rice shadowed the heavy-handed Bolton with her own lighter diplomatic touch.

Indeed, it was Rice, not Bolton, who achieved the one significant success of Bolton’s first 100 days at the United Nations: a unanimous October 30 Security Council vote requiring Syria to fully cooperate with a UN investigation into the suspected Syria-sponsored assassination of former Lebanese Prime Minister Rafik Hariri. The Prospect has learned that in the days and weeks leading up to the late October UN report on Hariri’s assassination, Rice sought to sideline Bolton from the negotiations over the Security Council resolution that the report inspired. She also made the State Department, not the U.S. Mission to the UN, the central address for discussions on the resolution.

One of the first signs that a bureaucratic battle was brewing between Bolton and Rice over Syria came on October 18, when the State Department press corps was shocked to find that Rice had unexpectedly flown to New York to meet Annan. A State Department spokesman explained that the two met to “compare notes” in advance of a widely anticipated report by Detlev Mehlis, the secretary-general’s special investigator for the Hariri assassination. Yet Bolton, the man in charge of the United States’ day-to-day operations at the UN, was conspicuously absent from that meeting. In what appears to have been less of an accident than a matter of intentional timing, Rice made her trip to New York on the very morning that Bolton had to be in Washington, testifying before the Senate on the progress (or lack thereof) of UN reforms.

The Prospect has further learned that, rather than forging Security Council strategy with America’s European allies at the UN building in New York, much of the diplomatic legwork has been carried out in Foggy Bottom. On October 22, a French delegation from the UN traveled to Washington for initial discussions on the Syria resolution (later called Security Council Resolution 1636), of which the French were the original authors. According to a diplomatic source, Bolton was not initially invited to that meeting. The French, however, insisted on his presence. So Bolton attended, but not without three chaperones: Assistant Secretary of State for Near Eastern Affairs David Welch, Welch’s deputy (and vice-presidential daughter) Elizabeth Cheney, and National Security Council Middle East chief Michael Doran. “It’s like they stuck a strong team from the [State Department and National Security Council] to watch him,” said the diplomat.

Despite Rice’s tight oversight of the resolution negotiations, the unanimity of the council was still in doubt one day before the Security Council meeting. Finally, in a last-minute lunch meeting with her foreign-minister counterparts from the veto-wielding permanent five Security Council members, Rice personally removed references to sanctions that had been inserted by the United States. With those obstacles to unanimous consent gone, Resolution 1636 passed 15 to 0.

Rice’s involvement came after Bolton had won round one in the Syria battle. Bolton and Rice’s bureaucratic tiffs over Syria had actually boiled over two weeks prior to the Security Council vote. Journalist Ibrahim Hamidi, writing in the Arabic-language newspaper Al-Hayat, reported -- and the Prospect has independently confirmed -- that Bolton had leaked to British newspapers that the Bush administration had signaled its willingness to offer Syria a “Libya-style deal” -- a reference to Libyan President Muammar Quaddafi’s decision last year to give up pursuing weapons of mass destruction and renounce terrorism in return for a restoration of relations with the United States and the United Kingdom. According to The Times of London, Syria responded positively to the secret U.S. offer, which was made through a third party. But after Bolton publicly aired the details of the potential deal -- which would require Syria to cooperate with the Mehlis investigation, end interference in Lebanese affairs and alleged interference in Iraqi affairs, and cease supporting militant groups like Hamas and Hezbollah—Damascus quickly denied that such a deal was in the offing.

“It is no secret that Mr. Bolton and Dr. Rice are not the closest friends,” a well-placed UN official told the Prospect. “Indeed, I’ve heard it said that the main reason he came here was that she didn’t want him in Foggy Bottom.” The animosity between the two is, in fact, well established, as they locked horns on Iran. On April 18, 2005, The Washington Post reported that Bolton let Rice go on her first trip to Europe as secretary of state without briefing her on European opposition to his one-man campaign to seek the ouster of the International Atomic Energy Agency Chief Mohammed ElBaradei. ElBaradei was a popular diplomat -- and would later win the Nobel Peace Prize for his work -- but Bolton thought ElBaradei was too “soft” on Iran.

Rice was playing hardball with Bolton, too. During the first Bush term, Bolton had effectively blocked U.S. support for a French, German, and British plan for confronting Tehran’s nuclear ambitions. Soon after Rice moved to Foggy Bottom, she sought to keep Bolton out of key policy discussions about Iran. In June, The Washington Post reported that Rice sought to keep secret from Bolton a meeting of French, British, German, and American officials who flew to Washington for a “brainstorming session on Iran.” Of the Iran meeting a European diplomat told the Post, “It was the American side that didn’t want him there.”

* * *

Bolton has consistently portrayed himself as a man on a mission: to save the UN from itself. But for all his reformist rhetoric, he continues with his wrecking-ball ways, knocking down America’s alliances while our diplomatic adversaries only stand more firmly.

Bolton’s tenure at the United Nations will last at least until his recess appointment concludes in January 2007, and until then we can expect to see more of the same. On November 14, Bolton treated the Jesse Helms Center at Wingate University, 35 miles east of Charlotte, North Carolina, to a lecture on UN reform. The venue could not have been more appropriate: During his long and destructive reign as the Republican leader of the Senate Foreign Relations Committee, Helms was the Senate’s chief UN antagonist-in-residence (a title that now belongs to Minnesota’s Norm Coleman). Helms was a key booster of Bolton early in his career: Bolton began his public service as Helms’ aide, and the two share a warm -- some might say eternal -- relationship. During Bolton’s 2001 confirmation hearing as undersecretary of state for arms control and international security, Helms famously referred to him as “the kind of man with whom I would want to stand at Armageddon.”

As the featured “Jesse Helms Lecture Series” speaker, it was Bolton’s turn to return the favor. He launched into a point-by-point critique of the United Nations that took one of Helms’ most famous invectives against the world body -- that it is full of “crybabies [who] whine about not receiving enough of American taxpayers’ money” -- one giant rhetorical step further. “Being practical, Americans say that we either need to fix the institution or we’ll turn to some other mechanism to solve international problems,” Bolton told the audience. Two days later, he clarified his remarks for the Financial Times. “The UN is simply one of many competitors in the global marketplace for problem solutions and problem solvers,” he told reporter Mark Turner. “If it is not good at solving problems, Americans will look to some other institution; some other organization; some other framework.”

As if in a nod toward diplomacy, he added that he hoped that those who want a stronger UN would “see the logic of our argument.” But his remarks to another British reporter just one week prior were probably more to the point. After listening to a tirade from Bolton against inefficiency, corruption, and supposed anti-Americanism at the UN during a private dinner, a Sunday Telegraph reporter in the audience asked him what he enjoyed most about the UN, to which Bolton replied, “It’s a target-rich environment.”

Mark Leon Goldberg is a Prospect writing fellow.
© 2005 by The American Prospect, Inc.

1984-2005...Big Brother and You

December 25, 2005
Private Lives
The Agency That Could Be Big Brother

DEEP in a remote, fog-layered hollow near Sugar Grove, W.Va., hidden by fortress-like mountains, sits the country's largest eavesdropping bug. Located in a "radio quiet" zone, the station's large parabolic dishes secretly and silently sweep in millions of private telephone calls and e-mail messages an hour.

Run by the ultrasecret National Security Agency, the listening post intercepts all international communications entering the eastern United States. Another N.S.A. listening post, in Yakima,Wash., eavesdrops on the western half of the country.

A hundred miles or so north of Sugar Grove, in Washington, the N.S.A. has suddenly taken center stage in a political firestorm. The controversy over whether the president broke the law when he secretly ordered the N.S.A. to bypass a special court and conduct warrantless eavesdropping on American citizens has even provoked some Democrats to call for his impeachment.

According to John E. McLaughlin, who as the deputy director of the Central Intelligence Agency in the fall of 2001 was among the first briefed on the program, this eavesdropping was the most secret operation in the entire intelligence network, complete with its own code word - which itself is secret.

Jokingly referred to as "No Such Agency," the N.S.A. was created in absolute secrecy in 1952 by President Harry S. Truman. Today, it is the largest intelligence agency. It is also the most important, providing far more insight on foreign countries than the C.I.A. and other spy organizations.

But the agency is still struggling to adjust to the war on terror, in which its job is not to monitor states, but individuals or small cells hidden all over the world. To accomplish this, the N.S.A. has developed ever more sophisticated technology that mines vast amounts of data. But this technology may be of limited use abroad. And at home, it increases pressure on the agency to bypass civil liberties and skirt formal legal channels of criminal investigation. Originally created to spy on foreign adversaries, the N.S.A. was never supposed to be turned inward. Thirty years ago, Senator Frank Church, the Idaho Democrat who was then chairman of the select committee on intelligence, investigated the agency and came away stunned.

"That capability at any time could be turned around on the American people," he said in 1975, "and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide."

He added that if a dictator ever took over, the N.S.A. "could enable it to impose total tyranny, and there would be no way to fight back."

At the time, the agency had the ability to listen to only what people said over the telephone or wrote in an occasional telegram; they had no access to private letters. But today, with people expressing their innermost thoughts in e-mail messages, exposing their medical and financial records to the Internet, and chatting constantly on cellphones, the agency virtually has the ability to get inside a person's mind.

The N.S.A.'s original target had been the Communist bloc. The agency wrapped the Soviet Union and its satellite nations in an electronic cocoon. Anytime an aircraft, ship or military unit moved, the N.S.A. would know. And from 22,300 miles in orbit, satellites with super-thin, football-field-sized antennas eavesdropped on Soviet communications and weapons signals.

Today, instead of eavesdropping on an enormous country that was always chattering and never moved, the N.S.A. is trying to find small numbers of individuals who operate in closed cells, seldom communicate electronically (and when they do, use untraceable calling cards or disposable cellphones) and are constantly traveling from country to country.

During the cold war, the agency could depend on a constant flow of American-born Russian linguists from the many universities around the country with Soviet studies programs. Now the government is forced to search ethnic communities to find people who can speak Dari, Urdu or Lingala - and also pass a security clearance that frowns on people with relatives in their, or their parents', former countries.

According to an interview last year with Gen. Michael V. Hayden, then the N.S.A.'s director, intercepting calls during the war on terrorism has become a much more complex endeavor. On Sept. 10, 2001, for example, the N.S.A. intercepted two messages. The first warned, "The match begins tomorrow," and the second said, "Tomorrow is zero hour." But even though they came from suspected Al Qaeda locations in Afghanistan, the messages were never translated until after the attack on Sept. 11, and not distributed until Sept. 12.

What made the intercepts particularly difficult, General Hayden said, was that they were not "targeted" but intercepted randomly from Afghan pay phones.

This makes identification of the caller extremely difficult and slow. "Know how many international calls are made out of Afghanistan on a given day? Thousands," General Hayden said.

Still, the N.S.A. doesn't have to go to the courts to use its electronic monitoring to snare Al Qaeda members in Afghanistan. For the agency to snoop domestically on American citizens suspected of having terrorist ties, it first must to go to the Foreign Intelligence Surveillance Court, or FISA, make a showing of probable cause that the target is linked to a terrorist group, and obtain a warrant.

The court rarely turns the government down. Since it was established in 1978, the court has granted about 19,000 warrants; it has only rejected five. And even in those cases the government has the right to appeal to the Foreign Intelligence Surveillance Court of Review, which in 27 years has only heard one case. And should the appeals court also reject the warrant request, the government could then appeal immediately to a closed session of the Supreme Court.

Before the Sept. 11 attacks, the N.S.A. normally eavesdropped on a small number of American citizens or resident aliens, often a dozen or less, while the F.B.I., whose low-tech wiretapping was far less intrusive, requested most of the warrants from FISA.

Despite the low odds of having a request turned down, President Bush established a secret program in which the N.S.A. would bypass the FISA court and begin eavesdropping without warrant on Americans. This decision seems to have been based on a new concept of monitoring by the agency, a way, according to the administration, to effectively handle all the data and new information.

At the time, the buzzword in national security circles was data mining: digging deep into piles of information to come up with some pattern or clue to what might happen next. Rather than monitoring a dozen or so people for months at a time, as had been the practice, the decision was made to begin secretly eavesdropping on hundreds, perhaps thousands, of people for just a few days or a week at a time in order to determine who posed potential threats.

Those deemed innocent would quickly be eliminated from the watch list, while those thought suspicious would be submitted to the FISA court for a warrant.

In essence, N.S.A. seemed to be on a classic fishing expedition, precisely the type of abuse the FISA court was put in place to stop.At a news conference, President Bush himself seemed to acknowledge this new tactic. "FISA is for long-term monitoring," he said. "There's a difference between detecting so we can prevent, and monitoring."

This eavesdropping is not the Bush administration's only attempt to expand the boundaries of what is legally permissible.

In 2002, it was revealed that the Pentagon had launched Total Information Awareness, a data mining program led by John Poindexter, a retired rear admiral who had served as national security adviser under Ronald Reagan and helped devise the plan to sell arms to Iran and illegally divert the proceeds to rebels in Nicaragua.

Total Information Awareness, known as T.I.A., was intended to search through vast data bases, promising to "increase the information coverage by an order-of-magnitude." According to a 2002 article in The New York Times, the program "would permit intelligence analysts and law enforcement officials to mount a vast dragnet through electronic transaction data ranging from credit card information to veterinary records, in the United States and internationally, to hunt for terrorists." After press reports, the Pentagon shut it down, and Mr. Poindexter eventually left the government.

But according to a 2004 General Accounting Office report, the Bush administration and the Pentagon continued to rely heavily on data-mining techniques. "Our survey of 128 federal departments and agencies on their use of data mining," the report said, "shows that 52 agencies are using or are planning to use data mining. These departments and agencies reported 199 data-mining efforts, of which 68 are planned and 131 are operational." Of these uses, the report continued, "the Department of Defense reported the largest number of efforts."

The administration says it needs this technology to effectively combat terrorism. But the effect on privacy has worried a number of politicians.

After he was briefed on President Bush's secret operation in 2003, Senator Jay Rockefeller, the Democratic vice chairman of the Senate Select Committee on Intelligence, sent a letter to Vice President Dick Cheney.

"As I reflected on the meeting today and the future we face," he wrote, "John Poindexter's T.I.A. project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance."

Senator Rockefeller sounds a lot like Senator Frank Church.

"I don't want to see this country ever go across the bridge," Senator Church said. "I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."

James Bamford is the author of "Puzzle Palace" and"Body of Secrets: Anatomy of the Ultra-Secret National Security Agency."

An Apologist For Torture: John Yoo

Rewriting the Laws of War for a New Enemy

The Geneva Convention Is Not the Last Word
By John Yoo, Robert J. Delahunty
Posted: Tuesday, February 1, 2005
Los Angeles Times
Publication Date: February 1, 2005

When the Senate considers Alberto R. Gonzales' nomination for attorney general this week, his critics will repeat the accusation that he opened the door to the abuse of Al Qaeda, Afghan and Iraqi prisoners. As Justice Department attorneys in January 2002, we wrote the memos advising that the Geneva Convention on prisoners of war did not apply to the war against Al Qaeda, and that the Taliban lost POW privileges by violating the laws of war. Later that month, Gonzales similarly advised (and President Bush ordered) that terrorists and fighters captured in Afghanistan receive humane treatment, but not legal status as POWs.

"Human rights" advocates have resorted to hyperbole and distortion to attack the administration's policy. One writer on this page even went so far as to compare it to Nazi atrocities. Such absurd claims betray the real weaknesses in the position taken by Gonzales' critics. They obscure a basic and immediate question facing the United States: how to adapt to the decline of nation-states as the primary enemy in war.

The Geneva Convention is not obsolete--nor, despite his critics, did Gonzales say it was. It protects innocent civilians by restricting the use of violence to combatants, and in turn gives soldiers protections for obeying the rules of war. Although enemy combatants may have killed soldiers or destroyed property, they are not treated as accused criminals. Instead, nations may detain POWs until the end of hostilities to prevent them from returning to combat.

The Geneva Convention provisions make sense when war involves nation-states--if, say, hostilities broke out between India and Pakistan, or China and Taiwan. But to pretend that the Geneva Convention applies to Al Qaeda, a non-state actor that targets civilians and disregards other laws of war, denies the reality of dramatic changes in the international system.

Shortly after World War II, nations ratified the Geneva Convention in order to mitigate the cruelty and horror of wars between the large mechanized armies that had laid waste to Europe. Now, the main challenges to peace do not arise from the threat of conflict between large national armies, but from terrorist organizations and rogue nations.

To believe that the Geneva Convention should apply jot-and-tittle to such enemies reminds us of the first generals of the Civil War, who thought that the niceties that were ideals of Napoleonic warfare could be applied to battles fought by massive armies, armed with ever more advanced weapons and aided by civilian-run mass-production factories and industry. War changes, and the laws of war must change with them.

Nations have powerful incentives to comply with the laws of war contained in the Geneva Convention. A United States or a Germany will care for captured prisoners, because any ill treatment could trigger retaliation against its own soldiers.

A nation will be concerned with public opinion, both to maintain popular support for its war effort and to keep its allies. Nations have leaderships that can be held accountable, either legally or politically, after the war. Nations have military and civilian bureaucracies that interpret and follow uniform standards of treatment.

Unfortunately, multinational terrorist groups have joined nations on the stage of war. They operate without regard to borders and observe no distinction between combatants and civilians. Our weapons for controlling hostile states don't work well against decentralized networks of suicidal operatives, with no citizens or borders to defend.

The problem of terrorist groups has been compounded by the emergence of pseudo-states. Pseudo-states often have neither the will nor the means to obey the Geneva Convention. Somalia and Afghanistan were arguably pseudo-states; Iraq under Saddam Hussein was another.

Pseudo-states control areas and populations subject to personal, clan or tribal rule. A leader supported by a small clique (like Hussein and his associates from Tikrit) or a tribal faction (like the Pashtuns in Afghanistan) rule. Political institutions are weak or nonexistent. Loyalties depend on personal relationships with tribal chiefs, sheiks or warlords, rather than allegiance to the nation.

Quasi-political bodies such as the Iraqi Baathist Party, the Taliban or even the Saudi royal family exercise government power. Defeat of the "national" leader or clique typically results in the complete disintegration of the regime.

Multinational terrorist groups and pseudo-states pose a deep problem for treaty-based warfare. Terrorists thrive on killing civilians and flouting conventional rules of war. Leaders like Hussein and the Taliban's Mullah Mohammed Omar ignore the fates of their captured soldiers. They have nothing riding on the humane treatment of American prisoners.

A treaty like the Geneva Convention makes perfect sense when it binds genuine nations that can reciprocate humane treatment of prisoners. Its existence and its benefits even argue for the kind of nation-building that uses U.S. troops and other kinds of pressures in places like Somalia, Afghanistan and Iraq; more nation-states make all of us safer. But the Geneva Convention makes little sense when applied to a terrorist group or a pseudo-state. If we must fight these kinds of enemies, we must create a new set of rules.

In that important respect, the Geneva Convention will become increasingly obsolete. Rather than attempting--as Gonzales' shrill critics do--to deny that reality, we should be seeking to address it.

Robert J. Delahunty is a law professor at St. Thomas University Law School in Minnesota. John C. Yoo, a law professor at the University of California-Berkeley, is a visiting scholar at AEI. Both authors were attorneys in the Justice Department during the first term of President George W. Bush.