A6

Politics & The Nation

S

KLMNO

Obama lacks support

for nuclear ambitions

Despite his leadership role, both Congress and other nations are wary

by Mary Beth Sheridan

In signing a new arms treaty

with Russia and hosting a major nuclear terrorism summit, Presi- dent Obama has shown leader- ship on his pledge to move toward a world without nuclear weapons. But is anyone following? At home, Obama faces a polar- ized Congress and a public fo- cused on other issues, such as the economy. Although many ex- perts think the Senate will ap- prove the new strategic-arms treaty with Russia, prospects are dim for ratifying another Obama priority: a global pact banning nuclear tests. Internationally, there is also a mixed picture. Obama has won kudos, and a Nobel Peace Prize, for a policy that many perceive as less belligerent than that of President George W. Bush. But George Perkovich, a prom- inent nuclear expert, noted in a recent report that nuclear pow- ers such as Russia, China and France had not rallied behind the idea of moving toward global disarmament. “The result is a talented presi- dent ready to lead a long-term campaign to remove the existen- tial threats posed by nuclear weapons, but as yet lacking suffi- cient colleagues and followers to make it happen,” wrote Perkov- ich, who is at the Carnegie En- dowment for International Peace.

Obama’s policy will face a crit- ical test next month, when near- ly 200 countries are to gather at the United Nations to review the Non-Proliferation Treaty (NPT), which is credited with keeping a lid on the spread of nuclear weapons for four decades. Oba- ma wants to strengthen the pact, which is under severe strain be- cause of Iran’s and North Korea’s nuclear programs. The NPT is a bargain that gives all signatories the right to nuclear power while barring them from getting a bomb; the original five nuclear powers could keep their weapons but were to take steps toward dis- arming. India, Pakistan and Is- rael, all nuclear weapons states, did not sign the treaty and North Korea quit it in 2003. But it will be difficult to get tougher penalties because the NPT conference operates by con- sensus. Iran, which is a signatory and maintains that its nuclear program is peaceful, could block changes. To critics, the forum of- ten becomes a place where nu- clear have-nots bash the nuclear haves, no matter what they do. “In one sense, the United

States will be perceived as genu- inely having regained a position of leadership,” said Linton F. Brooks, a top nuclear official in the past two Republican admin- istrations. “Whether you’ll be able to point to concrete results of that leadership, I simply don’t know.” The Obama administration is especially eager to avoid a repeat of the failed 2005 conference, at which the Bush administration was accused of ignoring its own obligations to move toward dis- armament. Obama will try to es- tablish his credibility at the con- ference by pointing to his recent achievements: the U.S.-Russia Strategic Arms Reduction Treaty (START), and his new nuclear policy, which reduces the role of

the weapons in U.S. defense strategy.

Still, the administration could face trouble from policy contra- dictions inherited from its pred- ecessors. U.S. presidents have been silent about Israel’s nuclear program, which that country does not publicly acknowledge or deny. U.S. officials and ana- lysts worry that the NPT confer- ence could be dominated by a push by Arab states to demand a nuclear-free zone in the Middle East. Meanwhile, the United States, following up on a 2008 deal reached by the Bush administra- tion, struck a deal last month al- lowing India to get power for its nuclear energy plants by extract- ing plutonium from spent U.S. nuclear fuel. But because India never signed the NPT, its facil- ities were not subject to interna- tional nuclear inspectors, who could detect whether the pluto- nium had been diverted to make a bomb. “The chief problem with this agreement is that the U.S. is al- lowing a non-NPT member rights that we’re not offering to NPT members,” said Daryl G. Kimball of the Arms Control As- sociation, an independent group. Pakistan is so unhappy about

the India deal that it recently blocked talks on another part of the Obama agenda: getting a treaty banning production of weapons-grade nuclear material. Pakistan’s representative to those treaty talks, Zamir Akram, said his government’s early opti- mism about the administration “had been short-lived.” Administration officials ac- knowledge that it will not be easy to reach their goals, but they say they reversed momen- tum when the Non-Proliferation Treaty was fraying. Obama has tried to emphasize U.S. support for the treaty in multiple ways: holding arms talks with Russia, promoting access to peaceful nu- clear energy, and embracing a goal of eventual global disarma- ment. “The fundamental theory of

the agenda the president laid out [last year] is, it takes movement on a whole range of fronts at once to strengthen the NPT and the nonproliferation regime,” said Benjamin Rhodes, the White House director of stra- tegic communications. Obama recently gave orders to

the Pentagon to start preparing for talks seeking deeper reduc- tions in the U.S. and Russian ar- senals after the ratification of START.

But the talks are expected to

be difficult because they would include the smaller, short-range nuclear weapons Russia relies on to offset the superiority of U.S. and Allied conventional forces in Europe. For their part, the Rus- sians will insist on limits on U.S. missile-defense systems, some- thing the Pentagon and Repub- licans in Congress strongly op- pose. Perkovich said the recent Nu- clear Security Summit, which produced an agreement by 47 countries on better safeguarding nuclear material, provided some reason for hope on international cooperation. First, no one botched the final accord. Second, although it is nonbinding, the agreement can be used by U.S. government officials to nudge their foreign counterparts to move forward, he said. “That’s a lot more leverage than has existed before,” he said.

sheridanm@washpost.com

Staff writer Steven Mufson contributed to this report.

MONDAY, APRIL 19, 2010

JEFF CHIU/ASSOCIATED PRESS

National Security Agency Director Keith B. Alexander is “working as quickly as he can” to resolve the issue, one key member of Congress said.

NSA suspends collecting some data

Officials trying to resolve concerns raised by court

by Ellen Nakashima

A special federal court that oversees domestic surveillance has raised concerns about the Na- tional Security Agency’s collec- tion of certain types of electronic data, prompting the agency to suspend collecting it, U.S. officials said. The Foreign Intelligence Sur- veillance Court, which grants or- ders to U.S. spy agencies to mon- itor U.S. citizens and residents in terrorism and espionage cases, re- cently “got a little bit more of an understanding” about the NSA’s collection of the data, said one of- ficial, who spoke on the condition of anonymity because such mat- ters are classified. The data under discussion are records associated with various kinds of communication, but not their content. Examples of this “metadata” include the origin, destination and path of an e-mail; the phone numbers called from a particular telephone; and the Internet address of someone mak- ing an Internet phone call. It was not clear what kind of data had

provoked the court’s concern. Some House Republicans have argued that the suspension of col- lection creates an intelligence gap that undermines the govern- ment’s ability to track and identi- fy terrorist networks, according to officials familiar with the matter. Frustrated about waiting for a remedy, these Republicans say the gap can be closed with a technical fix to the Foreign Intelligence Sur- veillance Act, the officials said. “This is a basic tool we used to

have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’ ” The data could be used to help analysts learn whom a suspect was working and communicating with, and to “detect and antici- pate” a plot, the official said. “It’s not a concern over what was be- ing collected,” he said. “It’s just a question about whether the law was written in a way that allowed the information to be collected in away that they were collecting it.” But some Democrats on Capitol

Hill are confident, the officials said, that NSA Director Keith B. Alexander and the Justice Depart- ment can address the court’s con- cerns without resorting to legisla-

tion. “I’m satisfied he’s working as quickly as he can but at the same time making sure that he’s doing it as thoroughly as possible,” said House intelligence committee Chairman Silvestre Reyes (D- Tex.). The Justice Department and

NSA declined to comment. The NSA voluntarily stopped

gathering the data in December or January rather than wait to be told to do so, the officials said. The agency had been collecting it with court permission for several years, officials said. Alexander promptly informed the intelligence committees of the situation, as he is required to do. Reyes said there had been in- stances in which Alexander had not informed the panels as soon as a problem arose, but “he’s held himself accountable and prof- fered a rational explanation.” Since then, he has notified the committees promptly even before he has “all the facts” of a case, Reyes said.

At issue in this case is how well

the NSA’s gathering of data con- forms to the Foreign Intelligence Surveillance Act, which was passed in 1978 to prevent a repeat of the domestic spying abuses of the 1960s and ’70s. The law was revised in 2008 to broaden the government’s surveillance au-

thority after a 11⁄2 -year congres-

sional debate with George W. Bush’s administration, which ar- gued that technology had out- stripped the 1978 law’s language. Several House intelligence

committee members discussed the challenge of calibrating collec- tion with ensuring Americans’ privacy and the nation’s security. They did not confirm or deny that the NSA had stopped collecting some kinds of data. “It was much simpler when all you needed to do was figure out whether you needed a search war- rant to search a particular loca- tion,” said Rep. Adam Schiff (D- Calif.), also a Judiciary Committee member. “But in an age of voice over IP, when everyone has stored electronic communications on answering machines, the laws that were quite simple rapidly be- come outdated. The challenge at agencies like NSA is to not only stay ahead of the technological curve, but to stay ahead of the le- gal curve as well.” Rep. Rush D. Holt (D-N.J.), who chairs the House Select Intelli- gence Oversight Panel, said that technological change means that “you also can find yourself way out of bounds before you know it.” And, he added, “in the process of getting back inbounds, you actu- ally can lose a lot.”

nakashimae@washpost.com

For group, surveillance law is elusive legal target

by Ellen Nakashima

A group of lawyers, human rights activists and journalists ar- gued in a federal appeals court on Friday that a 2008 update to U.S. surveillance law has made their e-mails and phone calls more sus- ceptible to government intercep- tion and that, as a result, they are forgoing conversations and flying overseas rather than making phone calls or writing e-mails. Those in the group are trying to show that they have suffered harm because of the revised law, which dropped a requirement that the government identify the subjects of its surveillance. The group must prove harm in order to challenge the law’s constitu- tionality in federal court. “By significantly increasing the

BRENDAN HOFFMAN/GETTY IMAGES

President Obama, shown at the Nuclear Security Summit, faces resistance on several levels to his nuclear goals.

likelihood that my communica- tions will be acquired by the U.S. government, the new surveil- lance law compromises my ability to gather information that is rel- evant and necessary to my work,” Joanne Mariner, director of the counterterrorism program atHu- man Rights Watch, said in a court filing with the U.S. Court of Ap- peals for the 2nd Circuit. In an interview, Mariner said she made three trips to Jordan re- cently rather than speak by phone to former detainees of the CIA’s rendition and detention programs. “I’ve gone to Egypt,” she said, “or I’ll meet people in Europe. It definitely adds a bur- den.” In 1978, Congress passed the

Foreign Intelligence Surveillance Act, which ensured that Amer-

icans’ communications would not be tapped in the course of in- telligence investigations without a warrant. The law came in re- sponse to a string of abuses by government intelligence agents in the 1960s and 1970s that in- cluded spying on civil rights and antiwar activists. After the Sept. 11, 2001, terror-

ist attacks, the National Security Agency undertook a secret pro- gram of enlarged surveillance that included monitoring Amer- icans’ communications without a court warrant when one party to a call or e-mail was suspected to be associated with terrorist activ- ities. In 2007, more than a year af- ter the New York Times revealed the program, the Justice Depart- ment announced that surveil- lance would be brought under court supervision. In 2008, Con- gress revised the 1978 law to in- clude broader surveillance au- thority, after the government ar- gued that technology had rendered its tools ineffective. But the plaintiffs in the present case contend that the revision, known as the FISA Amendments Act, runs afoul of the Fourth Amendment’s prohibition of “general warrants” and unrea- sonable searches. A threshold question, however, is whether the plaintiffs have “standing” to bring their challenge at all. The legal dispute turns on a 1972 Su-

preme Court case, Laird v. Ta-

tum, involving a domestic intelli- gence-gathering program under the Army. The court said in that case that the plaintiffs lacked standing to sue “without more” evidence that the Army was in-

vestigating them. The Obama Justice Depart- ment, citing Laird, said the plain- tiffs cannot sue without proving their calls and e-mails are being monitored. Assistant Attorney General Tony West said in a court document that although the plaintiffs “may be at greater risk than the public at large of having their communications inciden- tally acquired . . . the threat that plaintiffs one day will be harmed . . . is conjectural or hypothetical.” A lower court agreed with the

government. And Orin S. Kerr of George Washington University, an expert on surveillance law, said challenging such laws is dif- ficult because of the need to prove one was surveilled. “It’s very tricky in the national surveil- lance area because the surveil- lance is by its very nature secret,” he said, “so standing problems are common.” “A ruling upholding the lower-

court decision would shield the new statute from meaningful ju- dicial review,” said Jameel Jaffer, a lawyer with the American Civil Liberties Union, which is repre- senting the plaintiffs. Challenges to foreign-intelli-

gence surveillance programs are unusual. One example is the case of the now-defunct al-Haramain Islamic Foundation, a Muslim charity in Oregon that the Trea- sury Department had listed as a terrorist organization. The foun- dation sued the government in 2006, alleging that it had wire- tapped two of its lawyers, both U.S. citizens, without warrants. In that case, the plaintiffs used public records to prove that they

had been wiretapped. One record was a speech by an FBI official noting that “surveillance” had been used in determining wheth- er to designate al-Haramain a ter- rorist group. The judge found that they had standing. Sylvia Royce, a Washington

lawyer who has represented de- tainees from the military prisons at Guantanamo Bay, Cuba, and Bagram, Afghanistan, said she has tried to interview detainees’ family members to explore whether detention was unjusti- fied. “They’re reluctant to open up,” she said in an interview, add- ing that she thinks it is partly be- cause she has cautioned them not to go into certain areas in too much detail over the phone. Lawyers are bound by ethical rules to protect the confidentiali- ty of information about their cli- ents, said New York University law professor Stephen Gillers, who filed a declaration support- ing the plaintiffs. “It’s really quite simple,” he said in an interview. “Every lawyer has to evaluate the risk of snooping, of eavesdrop- ping, before communicating with a client or others about a client’s matter, like witnesses or relatives. If the risks of discovery are great enough, the lawyer has to find a different method for communi- cating.” If lawyers such as Royce were to ask him what their duty was, he said, given the clients’ identity and the government’s claimed powers, “I would say, ‘Don’t use the phone or the Internet to com- municate with your clients or others about the case.’ ”

nakashimae@washpost.com Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56