Wednesday, February 27, 2008


By William Fisher

Former senior level intelligence officials are disputing claims by the Bush Administration that the failure of Congress to pass a new foreign surveillance law is jeopardizing America’s national security.

In a letter to Admiral Mike McConnell, the Director of National Intelligence, the officials say “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”

The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).

The controversy has been triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.

A similar bill passed by the House of Representatives but the House version did not provide such immunity.

Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.

Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.

Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.

Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."

He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."

The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."

The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”

They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."

They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.

They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”

Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”

Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.

Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.

Typical is Prof. Peter Shane of the University of Ohio law school, who told us, “Bush's position is senseless.”

He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”

His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told us, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”

Saudi Arabian "Justice"

By Mona Eltahawy

If justice really was a woman she would not survive long in Saudi Arabia.

Between the Kafkaesque-sounding Committee to Promote Virtue and Prevent Vice and its infamous morality police, and the hardline Wahhabi clerics who serve as judges with wide-ranging powers run amok in the absence of a written penal code, justice couldn’t stand a chance in the royal kingdom.

More barbaric than Kafkaesque is the case of Fawzia Falih, a 51-year-old Saudi citizen of Jordanian origin who is awaiting public execution -- by beheading -- for “witchcraft.” She had already been hospitalized from weeks of beatings by the morality police (the mutaween) prior to her conviction in April 2006.

Judges sentenced her to death based on a confession extracted during those beatings. Falih, who is illiterate, was made to fingerprint that confession although she could not read what it said. One witness against her was a man who claimed he had suddenly become impotent after Falih “bewitched” him.

In a rare moment of lucidity in September 2006, an appeals court threw out her capital conviction after Falih retracted the confession. But a lower court later ruled she should be executed in the “public interest.”

It would be macabre to call Falih lucky, but at least she understood the proceedings against her. I doubt that Rizana Nafeek, a Sri Lankan maid who just turned 20, understood a word of her “trial” which sentenced her to be beheaded.

Nafeek was accused of murdering a baby -- who she says choked as she was feeding it. She was only 17 at the time. She had no access to lawyers during either her interrogation or her trial. Like Falih, Nafeek also retracted a “confession” extracted during police questioning.

A Saudi court is said to be considering Nafeek’s appeal but human rights organizations are concerned because of Saudi Arabia’s alarmingly high rates of execution. At least 26 people, including three women, have been executed since 8 January, and at least 158 people -- including three women -- were executed in Saudi Arabia in 2007.

As those groups point out, Nafeek’s execution would be in contravention of the United Nations Convention on the Rights of the Child which prohibits the execution of offenders for crimes committed when they were under 18 years old.

In its complete mockery of justice, Saudi Arabia ignores these UN conventions -- even the ones it has signed. In 2000, it ratified an international bill of rights for women but stipulated that Islamic law (Sharia) would prevail if there were conflicts with its provisions.

A farce played out in Geneva earlier this year, when a Saudi delegation appeared for the first time before the UN women’s rights panel. Finally an international body grilled the Saudis to explain why, in the 21st century, women have to have a male guardian’s permission to do almost everything in the kingdom, and why women cannot drive.

It was absurd to hear the Saudis insist that women in their country faced no discrimination. But the most ludicrous claim came when the UN committee asked why Saudi men could marry up to four wives. With a straight face, a Saudi delegate -- a man of course -- explained that it was to ensure a man’s sexual appetite was satisfied legally if one wife could not fulfill it.

Not surprisingly, the UN special rapporteur on violence against women, Yakin Erturk, soon went to Saudi Arabia on a 10-day fact-finding mission. She criticized the mutaween and the cleric-judges, mentioning two more cases of women whose treatment at the hands of those entities is nothing short of surreal.

Erturk met with Fatima Azzaz who was forced to separate from her husband Mansour al-Timani in 2006 after her brothers persuaded judges that Timani was from a lesser tribe. Azzaz is being held in a government home for orphans with a young son. She refuses to return to her family home as required by a court order divorcing her from her husband, who has custody of their daughter.

One of the latest atrocities of the mutaween was the arrest in early February of a businesswoman known only as Yara, a 40-year-old mother of three, for sitting in a Starbucks coffee shop in Riyadh with a male colleague. She told the English-language daily Arab News she was taken to a prison, strip-searched and forced to sign a confession of being caught alone with an unrelated man. Yara said the morality police released her several hours later after her husband intervened. The man with whom Yara had coffee, an unidentified Syrian financial analyst, had also been arrested and released the following day.

As these cases show, a grilling by a UN watchdog and a fact-finding mission to explore the miserable state of women’s rights in Saudi Arabia were long overdue. But they are meaningless when Saudi Arabia daily abuses the very rights it has promised to uphold. It must choose -- either its Wahhabi 'justice' or international conventions.

By forcing it to choose, the civilized world supports Saudis who refuse to be intimidated by the morality police and the Wahhabi judges. Last year, several Saudis sued the mutaween for their abuses But my favorite story is of two young women out shopping last year who were chided by the mutaween apparently for wearing makeup. One of the young women pulled out a can of pepper spray and she emptied it into the face of the morality police as her friend filmed the incident with her mobile phone while calling the mutaween "terrorists."

You can't say Saudi women aren't fighting back.

Mona Eltahawy is an award-winning New York-based journalist and commentator, and an international lecturer on Arab and Muslim issues.