Congress Never Authorized Spying Effort, Daschle Says

WASHINGTON, Dec. 23 - Tom Daschle, the South Dakota Democrat who was Senate majority leader at the time of the Sept. 11 attacks, has disputed a central element of the administration's case for its eavesdropping program: that Congress implicitly authorized spying on Americans when it endorsed granting President Bush broad power in 2001 to combat terrorism.

In an op-ed article published Friday in The Washington Post, Mr. Daschle said he rejected a White House effort three days after the attacks to grant Mr. Bush specific authority to conduct antiterrorism operations within the United States as part of a broader resolution backing the use of force.

In seeking the specific authority for a domestic response, Mr. Daschle said, the White House was effectively acknowledging that the resolution did not cover domestic actions like spying on Americans.

"The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress - but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language," Mr. Daschle said in the article.

The White House has asserted that the resolution, adopted by Congress on Sept. 14, 2001, freed Mr. Bush from the requirement to get warrants to monitor international phone calls and e-mail of Americans and others in the United States. That resolution authorized the president to employ "all necessary and appropriate force" in response to the attacks on New York and the Pentagon.

But by Mr. Daschle's new account, which appears not to have been made public previously, the White House sought within minutes before the vote on the resolution to alter it to include new wording specifically granting power to carry out the antiterrorism campaign within the United States.

The White House, Mr. Daschle said, wanted the resolution to give Mr. Bush authority to use "all necessary and appropriate force in the United States and against those nations, organizations and persons" responsible for the attacks.

Mr. Daschle said he had turned aside the White House's effort to include "in the United States and" in that sentence, leaving the focus of the resolution on fighting terrorism abroad.

Asked for comment Friday, a White House spokesman provided a written statement that defended the eavesdropping program by referring to a letter the administration sent to members of Congress this week justifying the president's authority for the operation. The statement did not address Mr. Daschle's account of the deliberations over the wording of the Congressional resolution.

In an interview, Mr. Daschle said he and his staff were dealing primarily at the time with Alberto R. Gonzales, then the White House counsel and now attorney general. He said the request to add the wording authorizing activities in the United States had been made by the White House through the office of Senator Trent Lott, Republican of Mississippi, who was then the minority leader.

"They presented a draft that gave the president virtually unchecked authority and the ability to do virtually anything," Mr. Daschle said in the interview. "We were dumbfounded that they were asking for the ability to take these actions" not just abroad but domestically as well.

Mr. Daschle's account suggests that the administration's effort to define the powers of the presidency expansively were well under way within days after the terrorist attacks. In the last week, both Mr. Bush and Vice President Dick Cheney have defended their efforts to claim broad executive authority as necessary for national security, and have cited the 2001 resolution as one basis for their assertion that the eavesdropping program is legal.

Speaking about the program in his weekly radio address last Saturday, Mr. Bush said: "To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I'm also using constitutional authority vested in me as commander in chief."

Mr. Daschle said that in the days immediately after Sept. 11, there was "grave concern about our ability to respond quickly." But, he said, when briefed by the administration about the eavesdropping program in 2002, "I and others expressed concern."

He said his concern would have been even greater had he known the extent of the program. The description provided by the administration in 2002, he said, left him with the impression that it was more limited than recent disclosures have portrayed it.

George W. Bush's Scorecard for 2005

A year ago, everyone expected President Bush to get his way on Social Security. Pundits warned Democrats that they were making a big political mistake by opposing plans to divert payroll taxes into private accounts.

A year ago, everyone thought Congress would make Mr. Bush's tax cuts permanent, in spite of projections showing that doing so would lead to budget deficits as far as the eye can see. But Congress hasn't acted, and most of the cuts are still scheduled to expire by the end of 2010.

A year ago, Mr. Bush made many Americans feel safe, because they believed that he would be decisive and effective in an emergency. But Mr. Bush was apparently oblivious to the first major domestic emergency since 9/11. According to Newsweek, aides to Mr. Bush finally decided, days after Hurricane Katrina struck, that they had to show him a DVD of TV newscasts to get him to appreciate the seriousness of the situation.

A year ago, before "Brownie, you're doing a heck of a job" became a national punch line, the rising tide of cronyism in government agencies and the rapid replacement of competent professionals with unqualified political appointees attracted hardly any national attention.

A year ago, hardly anyone outside Washington had heard of Jack Abramoff, and Tom DeLay's position as House majority leader seemed unassailable.

A year ago, Dick Cheney, who repeatedly cited discredited evidence linking Saddam to 9/11, and promised that invading Americans would be welcomed as liberators - although he hadn't yet declared that the Iraq insurgency was in its "last throes" - was widely admired for his "gravitas."

A year ago, Howard Dean - who was among the very few prominent figures to question Colin Powell's prewar presentation to the United Nations, and who warned, while hawks were still celebrating the fall of Baghdad, that the occupation of Iraq would be much more difficult than the initial invasion - was considered flaky and unsound.

A year ago, it was clear that before the Iraq war, the administration suppressed information suggesting that Iraq was not, in fact, trying to build nuclear weapons. Yet few people in Washington or in the news media were willing to say that the nation was deliberately misled into war until polls showed that most Americans already believed it.

A year ago, the Washington establishment treated Ayad Allawi as if he were Nelson Mandela. Mr. Allawi's triumphant tour of Washington, back in September 2004, provided a crucial boost to the Bush-Cheney campaign. So did his claim that the insurgents were "desperate." But Mr. Allawi turned out to be another Ahmad Chalabi, a hero of Washington conference rooms and cocktail parties who had few supporters where it mattered, in Iraq.

A year ago, when everyone respectable agreed that we must "stay the course," only a handful of war critics suggested that the U.S. presence in Iraq might be making the violence worse, not better. It would have been hard to imagine the top U.S. commander in Iraq saying, as Gen. George Casey recently did, that a smaller foreign force is better "because it doesn't feed the notion of occupation."

A year ago, Mr. Bush hadn't yet openly reneged on Scott McClellan's 2003 pledge that "if anyone in this administration was involved" in the leaking of Valerie Plame's identity, that person "would no longer be in this administration." Of course, some suspect that Mr. Bush has always known who was involved.

A year ago, we didn't know that Mr. Bush was lying, or at least being deceptive, when he said at an April 2004 event promoting the Patriot Act that "a wiretap requires a court order. ...When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

A year ago, most Americans thought Mr. Bush was honest.

A year ago, we didn't know for sure that almost all the politicians and pundits who thundered, during the Lewinsky affair, that even the president isn't above the law have changed their minds. But now we know when it comes to presidents who break the law, it's O.K. if you're a Republican.

By PAUL KRUGMAN

In trying to justify Bush's warrantless spying, his defenders are distorting the facts about Clinton and due process of the law.

By Joe Conason

Dec. 23, 2005 | Notwithstanding the haughty pretensions of this imperial president -- who never apologizes and rarely explains -- the officials, scribes and courtiers of the Bush administration are busy fashioning excuses for the illegal-surveillance scandal. Advanced by Attorney General Alberto Gonzales as well as the likes of Matt Drudge and Rush Limbaugh, these sophistries range from the absurdly illogical to the blatantly misleading.

Someday the courts may justify or rebuke what Bush has done. Someday Congress may exonerate or punish him. Someday we may find ourselves yoked by a kinglike "wartime president," or we may at last be freed of his ongoing excesses. In the meantime, however, it is worth clearing away the intellectual chaff spread so persistently by his enablers.

In his signature style, Drudge has sought to suggest that Bush has done nothing that Democratic presidents didn't do, which may reflect his own continuing obsession with Bill Clinton. The Internet gossip's headline this week blared, "Clinton Executive Order: Secret Search on Americans Without Court Order..." He went on to link to a National Review Online article that made much of a Clinton order in 1994 authorizing warrantless searches. But it is important to connect the dots, as the president would say, in Drudge's ellipsis points. The Clinton executive order permitted such searches only under certain very limited circumstances that are legal under the Foreign Intelligence Surveillance Act, the very statute that Bush has admitted ignoring.

The Center for American Progress noted Wednesday what Drudge left out and what the National Review's Byron York elided -- namely, the difference between search or surveillance operations conducted against foreigners and those conducted against American citizens. ("Some people," York later noted in chiding exaggerations on both sides of the issue, "have said that Bill Clinton signed an executive order authorizing such surveillance; he did not.")

The Foreign Intelligence Surveillance Act restrictions were designed to protect Americans, not to hobble U.S. counterintelligence aimed at foreign spies and terrorists.

That was why Clinton's order authorized the attorney general "to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year" -- but only if the attorney general "makes the certifications required" by Section 302(a)(1) of FISA. That section requires the attorney general to certify that the search or surveillance in question would not invade the property or premises of "a United States person," meaning a citizen or someone living here legally. By leaving out the same qualification, Drudge made the same incorrect implication about an order signed by Jimmy Carter in 1979. Then again, as Drudge has occasionally boasted, his reporting is 80 percent correct -- but sometimes that omitted 20 percent can make all the difference.

On Tuesday, Limbaugh, another Clinton obsessive, relied on the same false assumptions to claim that the Clinton administration had done "exactly what George W. Bush did" in authorizing warrantless surveillance. In fact, the position of the Clinton Justice Department was clear: Not only did Clinton believe that FISA properly balances civil liberties and national security, but he supported expanding its provisions in 1994 to cover physical searches as well as electronic surveillance.

Perhaps the most revealing assertions were made by Gonzales, the White House yes-man who has given cover to every trespass of legality by this administration, from the abandonment of the Geneva Conventions to the indefinite detention of citizen "combatants."

Attempting to defend the secret domestic surveillance program, the attorney general said that the White House had considered asking Congress to pass new legislation that would explicitly permit those activities. He asserted that Congress had in fact already given blanket approval for such spying with its approval of the war resolution. But he also confessed that the administration had abandoned the idea of new legislation because getting a bill through Congress "would be difficult if not impossible." In other words, Congress would refuse to pass legislation authorizing activities its members had supposedly approved after Sept. 11, 2001.

Obviously that argument makes no sense -- and the dishonesty of the Bush defenders only undermines the public confidence that would be necessary to entrust the White House with expanded powers to spy. New technologies that enable the government to sweep through gigantic amounts of computer and voice data, in search of clues to terrorist threats, may well require new legislation. Nobody wants to enable terrorists to escape timely detection. But if the president gets away with behaving like a tyrant, with constitutional checks and balances erased by fiat, then the terrorists have indeed already won.

Colin Powell Speaks Out on Domestic Spy Program

By STEVEN R. WEISMAN
WASHINGTON, Dec. 25 - Former Secretary of State Colin L. Powell said on Sunday that it would not have been "that hard" for President Bush to obtain warrants for eavesdropping on domestic telephone and Internet activity, but that he saw "nothing wrong" with the decision not to do so.

"My own judgment is that it didn't seem to me, anyway, that it would have been that hard to go get the warrants," Mr. Powell said. "And even in the case of an emergency, you go and do it. The law provides for that."

But Mr. Powell added that "for reasons that the president has discussed and the attorney general has spoken to, they chose not to do it that way."

"I see absolutely nothing wrong with the president authorizing these kinds of actions," he said.

Asked if such eavesdropping should continue, Mr. Powell said, "Yes, of course it should continue."

Mr. Powell said he had not been told about the eavesdropping activity when he served as secretary of state.

He spoke on the ABC News program "This Week" about the disclosure, first reported in The New York Times, that Mr. Bush had authorized the National Security Agency to intercept communications by Americans without approval from a special foreign intelligence court.

Though Mr. Powell stopped short of criticizing Mr. Bush, his suggestion that there was "another way to handle it" was another example of his parting company on a critical issue with the president he served for four years.

This fall, Mr. Powell broke with the administration on the issue of torture, endorsing a move by Senator John McCain, Republican of Arizona, to pass a measure in Congress banning cruel, inhuman and degrading treatment of detainees by all American authorities, including intelligence personnel. The White House at first opposed the measure but later accepted it.

Since leaving office at the end of Mr. Bush's first term, Mr. Powell has been involved in several business and public service ventures, including the establishment of the Colin Powell Center for Policy Studies at City College of New York, his alma mater.

On Iraq, Mr. Powell repeated earlier statements that differed somewhat from those of Mr. Bush, saying he did not know whether he would have advocated going to war with Iraq if he had known that the country had no stockpiles of illicit weapons.

Referring to the case for going to war if there were no such weapons, Mr. Powell said he would have told the president, "You have a far more difficult case, and I'm not sure you can make the case in the absence of those stockpiles."

Mr. Powell said he expected American troop levels to continue to go down in the coming year out of necessity, because it will become difficult to sustain the current high levels and because the effort to train Iraqis should be successful.

The main worry in Iraq, he said, is the growth of semi-independent militias with allegiance to sectarian groups within the Iraqi military.

Asked if the ethnic divisions in Iraq that were reinforced by the recent elections posed a threat of civil war, Mr. Powell said, "I think it is something we all have to be worried about."

Courts Criticize Judges' Handling of Asylum Cases

December 26, 2005
By ADAM LIPTAK, NY TIMES

Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.

In one decision last month, Richard A. Posner, a prominent and relatively conservative federal appeals court judge in Chicago, concluded that "the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice."

Similarly, the federal appeals court in Philadelphia said in September that it had "time and time again" been forced to rebuke immigration judges for their "intemperate and humiliating remarks." Citing cases from around the country, the court wrote of "a disturbing pattern" of misconduct in immigration rulings that sent people back to countries where they had said they would face persecution.

The harsh criticism may stem in part from a surge in immigration cases before the federal appeals courts. Immigration cases, most involving asylum seekers, accounted for about 17 percent of all federal appeals cases last year, up from just 3 percent in 2001. In the courts in New York and California, nearly 40 percent of federal appeals involved immigration cases.

The increase occurred after Attorney General John Ashcroft made changes in 2002 to streamline appellate review within the immigration courts, which are part of the Justice Department.

Many federal appeals court judges say those changes essentially shifted work to their courts. The Justice Department counters that the increase is largely unrelated to the Ashcroft changes and is instead the result of a higher rate of appeals in the courts in New York and California.

Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.

"The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal," Mr. Cohn said. "They're only seeing a fraction of the cases, and only a small fraction of those give rise to criticism."

But that criticism can be very sharp, particularly given the temperate language that is the norm in the federal appellate courts.

In the Philadelphia decision in September, Judge Julio M. Fuentes of the United States Court of Appeals for the Third Circuit had this to say about Annie S. Garcy, an immigration judge, or I.J., in Newark: "The tone, the tenor, the disparagement, and the sarcasm of the I.J. seem more appropriate to a court television show than a federal court proceeding."

Judge Garcy ordered Qun Wang returned to China, where he said his wife had been forcibly sterilized. "He's a horrible father as far as the court's concerned," Judge Garcy ruled, saying Mr. Wang was obsessed with having a son and did not pay enough attention to his daughter, who is disabled.

All of that was irrelevant to the issues before Judge Garcy, Judge Fuentes wrote, returning the case to the immigration system for a rehearing before a different judge. "The factual issue before" Judge Garcy, Judge Fuentes wrote, had been only "whether Wang's wife had been forcibly sterilized and whether, if he returned to China, the Chinese government would inflict improper punishment on him for leaving the country."

Through a spokeswoman, Judge Garcy declined to comment.

In another decision, Judge Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said a decision by Nathan W. Gordon, an immigration judge, was "literally incomprehensible," "incoherent" and "indecipherable." A crucial sentence in Judge Gordon's decision, she said, "defies parsing under ordinary rules of English grammar."

Judge Gordon ordered Ernesto Adolfo Recinos de Leon returned to Guatemala, notwithstanding Mr. Recinos's testimony that he would be persecuted there for his political activities. Judge Berzon sent the case back to the immigration system for another hearing.

Judge Gordon, now retired, did not respond to a request for comment.

A spokesman for the Executive Office for Immigration Review, the unit of the Justice Department responsible for immigration adjudications, declined requests for interviews with officials there but provided answers to written questions.

"We would caution against drawing broad conclusions," the statement said, "from a small number of cases in the federal courts." The nation's roughly 215 immigration judges, the statement continued, "handle more than 300,000 matters every year," and "the vast majority of I.J.'s do an excellent job given such a large caseload."

Denise Noonan Slavin, the president of the National Association of Immigration Judges, a union affiliated with the A.F.L.-C.I.O., said she was concerned about what she called the rising number of "scathing opinions" from federal appeals court judges.

"To go name-calling and having an open season on judges, it's crossing the line of civility," Judge Slavin said. "That is not to say that immigration judges don't make mistakes."

But Lory Diana Rosenberg, a former judge on the administrative body within the Justice Department that reviews decisions from immigration judges before they reach the federal appeals courts, said the recent criticisms were warranted.

"They're a brave, honest and proper reaction," Ms. Rosenberg said, "to a pattern of unfettered misuse of authority."

Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."

Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions."

The people who appear before immigration judges often do not speak English, and their cases often turn in part on changing political and social conditions around the world. In a decision in March, Judge Posner wrote that immigration judges' "lack of familiarity with relevant foreign cultures" was "disturbing."

Judge Slavin, who sits in Miami, disagreed, saying she and her colleagues often had a sophisticated understanding of conditions in the most relevant countries, which are China for immigration judges in New York and Philadelphia; Eastern Europe for those in Chicago; Haiti, Columbia and Venezuela for those in Miami; and Central and South America for those in California.

"I know more about Haitian politics than the people coming before me," Judge Slavin said. But she acknowledged both the difficulty and the importance of her work.

"Immigration law can be life-or-death decisions in terms of whether you're going to send someone back to a place where they may be killed," Judge Slavin said. "I have over 1,000 cases on my docket. Most of us do about four decisions a day. In Texas, on the border, you might get 10 a day."

Judges at the top and bottom of the system blame the administrative body between them, the Board of Immigration Appeals, for the surge in appeals and the mixed quality of the decisions reaching the federal appeals courts. The board is meant to act as a filter, correcting erroneous or intemperate decisions from the immigration judges and providing general guidance. The losing party can appeal the board's decision to the federal courts.

But the board largely stopped reviewing immigration cases in a meaningful way after it was restructured by Mr. Ashcroft in 2002, several judges said.

Mr. Ashcroft reduced the number of judges on the board to 11 from 23. "They just hacked off all the liberals is basically what they did," said Ms. Rosenberg, who served on the board from 1995 to 2002.

Mr. Ashcroft also expanded the number of appeals heard by a single board member and encouraged the use of one-word affirmances in appropriate cases.

The goal of the changes, Mr. Ashcroft said, was streamlining. The board had a backlog of more than 56,000 cases, which fell to 32,000 by September 2004.

At a conference at New York Law School in September, John M. Walker Jr., the chief judge of the United States Court of Appeals for the Second Circuit, in New York, said the changes at the board level served to transfer its backlog to his court and other federal appeals courts.

"He just moved the problem from one court to another court," Judge Walker said of Mr. Ashcroft.

In the two and a half years after April 2002, said John R. B. Palmer, a staff lawyer at the Second Circuit, his court received twice as many appeals from immigration board decisions as it had in the previous 30 years combined.

Several federal appeals court judges said they were frustrated by the quality of the board's review of decisions from immigration judges.

In his March decision, Judge Posner wrote that the board often affirmed "either with no opinion or with a very short, unhelpful, boilerplate opinion even when" the immigration judge had committed "manifest errors of fact and logic."

As a consequence, Judge Walker said, "We're the first meaningful review that the petitioner has."

In its statement, the immigration review office said "we absolutely disagree" with Judge Walker's comment. "Each decision that comes before the board is carefully reviewed by a staff attorney and at least one board member," the statement said.

According to the office, the number of one-word affirmances dropped this year, to about 20 percent from about a third in previous years.

The solution to some of what recent criticisms identified as problems, several federal appeals court judges said, is to add positions to the immigration board and to require judges there to explain the reasons for their decisions.

"At least write a couple of pages, three pages," said Jon O. Newman, a judge on the Second Circuit. "It would really help us."

An article to be published early next year in the Georgetown Immigration Law Journal concludes that the shift toward the federal appeals court "was triggered by the high volume of B.I.A. decisions issued starting in March 2002, and a general dissatisfaction with the B.I.A.'s review."

In its statement, the immigration review office disagreed.

"The surge in federal appeals," the statement said, "is not related to the board's increased number of decisions but the rate of appeal." In some parts of the country, immigrants appeal only 7 percent of the time, the statement said. In the states covered by the federal appeals courts in New York and California, the appeals rate is now more than 30 percent.

At an argument in an appeal of an immigration case in September in Chicago, the three judges on the panel expressed exasperation with the current state of affairs.

"Does the Justice Department have any idea of what is happening to your cases in this court?" Judge Posner asked Cindy S. Ferrier, the government lawyer defending the decision of the immigration judge.

She said yes.

A second judge, Ilana Rovner, offered Ms. Ferrier a measure of sympathy.

"It is so cruel to send a lovely human being like you in here to be a messenger of such madness, such nonsense," Judge Rovner said.

Bill O'Reilly on San Francisco

"If Al Qaeda comes in here and blows you up, we're not going to do anything about it."
-- Bill O'Reilly, putting San Francisco on notice

"My satirical riff had a serious point. Why should the USA protect San Francisco from terrorists?"
-- Bill O'Reilly, refining his position

Intelligent Design Ruled Illegal

Federal Judge Rules, in Strongly Worded Opinion, That Teaching Intelligent Design Is Unconstitutional

By THOMAS BARTLETT

In a broad and withering opinion, a federal judge ruled today that intelligent design was nothing more than creationism in disguise and therefore that it was unconstitutional to teach it in a public-school science classroom.

The judge, John E. Jones III of the U.S. District Court in Harrisburg, Pa., took proponents of intelligent design to task in his 139-page opinion, saying that they wished to "change the ground rules of science to make room for religion, specifically, beliefs consonant with a particular version of Christianity."

He also chastised the former members of the Dover Area School Board who insisted that teachers in the Pennsylvania district present intelligent design as a legitimate alternative to the widely accepted principles of biological evolution laid down by Charles Darwin nearly 150 years ago. The judge cited the "breathtaking inanity" of the board's decision and the board members' "striking ignorance" about the concept of intelligent design, often called "ID." (Eight board members who supported inserting intelligent design into the science curriculum have since been voted out of office.)

"The citizens of the Dover area were poorly served by the members of the board who voted for the ID policy," the judge wrote. "It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID policy."

Judge Jones also had harsh words for intelligent-design proponents in general, writing that the concept is "at bottom premised upon a false dichotomy, namely, that to the extent evolutionary theory is discredited, ID is confirmed." At one point in the ruling, he stated plainly that intelligent design is "not science" -- a view that reflects the arguments of ID's strongest critics.

Intelligent design is the notion that some aspects of living organisms are so complex that they could not have evolved according to Darwinian principles, but must have been designed by some superior intelligence. Critics of intelligent design say it is little more than creationism, and is in any event not a scientific theory.

The ruling did not please John G. West, a senior fellow at the Center for Science and Culture at the Discovery Institute, a leading think tank for intelligent-design research. Mr. West said his organization did not support the Dover policy but was upset that Judge Jones, who was appointed to the bench by President Bush, had used his ruling to attack intelligent design. "Bottom line is that he was so interested in having his place in history that he is pontificating about things that were not directly required by the decision," Mr. West said.

Mr. West, who is also an associate professor of political science at Seattle Pacific University, said the decision would "further embolden those who favor Darwinist theory and think that, rather than winning arguments, they can get the government to censor those who favor intelligent design."

But censorship isn't the point, said Harold Morowitz, a professor of biology and natural philosophy at George Mason University, who has argued against the teaching of intelligent design (The Chronicle, September 2). "They're not trying to censor them -- they're trying to say this is not science," Mr. Morowitz said. "It seems like this judge was trying to establish a precedent so that this case will not have to be fought over again in federal court."

Aside from its broad effect on the culture wars that have consumed some in academe, the ruling could have an indirect effect on the work of higher education, says Michael Weisberg, an assistant professor of philosophy at the University of Pennsylvania. He is chairman of the Evolution Project at Penn's museum, which helps public-school teachers explain evolution to their students. "It helps clear the air," Mr. Weisberg said of the ruling. "Now I can perhaps go into a school and talk about evolution without having to deal so much with intelligent design."

And if students have a better grounding in evolution during high school, he said, they will be better science students in college.

Robert E. Hemenway, chancellor of the University of Kansas, warned, however, that the ruling probably will not put an end to efforts by intelligent-design proponents to win attention for their beliefs in classrooms. Mr. Hemenway has been outspoken in his support of the teaching of evolution as his state's school board considers requiring teachers to present intelligent design (The Chronicle, September 28).

Other scholars agreed that the ruling was unlikely to stop those with a strong religious motivation from pursuing their goals. But Kevin Padian, a professor of integrative biology at the University of California at Berkeley, said he was "ecstatic" about the decision. "The judge really understood that ID is not science," said Mr. Padian, who testified as an expert witness for the plaintiffs during the six-week trial.

Mr. Padian, who is also president of the National Center for Science Education, which defends the teaching of evolution in public schools, said he could not have hoped for a better outcome. "I don't think there is a single sentence the ID folks could point to and say 'Yea!'" he said. "It's pretty gloom and doom for them."

He added, "It's a grand slam."



"Survival of the unfittest"

SALON.COM

A Pennsylvania judge has ruled that intelligent design is not fit for science classes. But I.D. remains rooted in U.S. schools, where science teachers are pressured to address God in the classroom.
By Gordy Slack

Dec. 21, 2005 | In a remarkably unequivocal decision Tuesday, a federal judge ruled that teaching intelligent design in public science classrooms in Dover, Pa., is prohibited by the constitutional separation of church and state. In the decision, Judge John E. Jones III declared that the school district's claim that I.D. is a scientifically valid alternative to evolution is simply wrong. "Intelligent design is nothing less than the progeny of creationism," he writes.

The judge's ruling was not a surprise to those of us who had spent time at the trial, which had earned the nickname Monkey Trial II, a reference to the famous 1925 court case in which Tennessee schoolteacher John Scopes was found guilty of teaching evolution. In the Harrisburg, Pa., courtroom, we could see from the first week that the trial was going badly for I.D. proponents. That the school board intended to promote their religious views was evident, as was the strong scientific consensus that the basic tenets of evolution were unimpeachable.

The much ballyhooed scientific defense of I.D. -- the idea that some aspects of the natural world are best explained as designed by some unnamed intelligence rather than as the products of purely naturalistic processes -- was also a dud. Then came an article in the Dec. 4 New York Times suggesting that I.D. may be losing some academic ground in the evangelical Christian colleges that were assumed to be its base.

Despite Jones' ruling, the Discovery Institute, the Seattle-based engine of the I.D. movement, is claiming victory. "Anyone who thinks a court ruling is going to kill off interest in intelligent design is living in another world," says John West, associate director of the Discovery Institute's Center for Science and Culture, in a press release. "Americans don't like to be told there is some idea that they aren't permitted to learn about. Banning intelligent design in Dover will likely only fan interest in the theory."

Although it seems far-fetched to spin I.D.'s loss in Dover as a triumph, I.D. remains firmly rooted in mainstream culture. After all, 2005 was a banner year for the theory. Pope Benedict XVI embraced the "intelligent project" that he said underlies nature, and President Bush endorsed teaching I.D. alongside evolution. The Kansas School Board decided to alter its definition of science to accommodate I.D., and several school boards around the country promise to follow suit.

Perhaps Tuesday's ruling will cause people to think differently about I.D., but polls taken earlier this year suggest that most Americans consider I.D. or some form of creationism a plausible alternative to evolution. A growing majority thinks it should be taught as an alternative to Darwin's theory in public science classrooms.

Most significantly, given that I.D. has reached a tipping point in the United States, nearly every high school biology teacher, community college instructor and college professor is being forced to deal with it in one way or another. Some dismiss it outright, but others are striving to craft intelligent ways to incorporate it into their classrooms, including the controversial approach known as "teach the controversy." As recently as 10 years ago, few could have guessed that science teachers would be wrestling with how to weave God into their curriculums. But thanks to the publicity surrounding I.D., many teachers say they don't have much choice.

Intelligent design did not spread through culture on its scientific merits. It got a big push from religious and political advocates. Funded by millions of dollars from some of the same religious supporters that helped put President Bush in the White House (conservatives like Philip F. Anschutz, Richard Mellon Scaife, and Howard and Roberta Ahmanson), the Discovery Institute has pushed a fringe academic movement onto virtually all the front pages and TV sets in the country. The New York Times has reported that the institute has granted $3.6 million in fellowships to 50 researchers since 1996. Those investments produced 50 books on intelligent design, innumerable articles, and two I.D. documentaries that were broadcast on public television.

Oxford biologist Richard Dawkins has said that Darwin's theory of evolution made it possible to be an intellectually satisfied atheist. Intelligent design, it seems, has made it possible for many fundamentalists to be intellectually satisfied creationists. Wesley Elsberry, a biologist at the National Center for Science Education, says millions of evangelical Christians craved a more science-like, sophisticated yet Bible-friendly theory to explain the diversity of life on earth.

"Discovery's early documents say that they consider the Christian community to be their base," Elsberry says. "They mean people who are in some sort of fundamentalist faith community, which takes a literal approach to Genesis. That's by far their biggest public base and it was ready-made for I.D.," says Elsberry.

In fact, I.D.'s advance has been one of the great coups of modern public relations, says Barbara Forrest, philosophy professor at Southeastern Louisiana University. She points out that plenty of bad science has been launched into the orbit of public consciousness -- Ronald Reagan's space-based missile system, for one -- but intelligent design is different. "I.D. is not bad science," she says. "It is non-science." With her Southern accent, she pronounces it "nonsense."

Intelligence design "is not just non-science -- it's anti-science," says Brown University biologist Kenneth Miller, who testified against I.D. at the Dover trial. It doesn't merely defy the definition of "science," which limits explanations to naturalistic causes, but also stops research in its tracks by attributing complex problems to supernatural causes.

Yet the I.D. movement has infiltrated the mainstream with "good slogans and sound bites," Forrest says, adding that I.D. advocates' "most intuitively compelling argument is their appeal to the American public and to parents to let their kids hear both sides of the debate. But it's a bogus appeal: There's nothing fair about trying to teach children something that isn't true."

West bristles at the idea that I.D.'s success is due to good P.R. "Darwinists like Forrest don't seem to understand that by caricaturing I.D. they ultimately undercut their own efforts," he says. "When students or scholars who have been exposed to Forrest's straw-man version of I.D. actually read science journal articles or academic books by I.D. scholars, they suddenly discover for themselves that the evidence and arguments for I.D. are a lot more impressive and sophisticated than they've been led to believe. And once they start to engage the real issues raised by the scientific evidence, the spin and scare tactics pushed by Darwinian fundamentalists like Forrest don't cut it."

Whether I.D.'s scientific core is "impressive and sophisticated," as West says, is debatable. Certainly Judge Jones didn't think so. Still, biology teachers are being pressured to bring it into their classrooms. A recent study published in American Biology Teacher, for instance, shows a near doubling over the past decade of public-school teachers in Minnesota who report being pressured from students, parents or administrators to spend less time teaching evolution in their classes. The study also shows growing pressure to teach creationism as an alternative to evolution.

An increasing number of high school science teachers are happy to comply. Twenty percent of Minnesota science teachers and nearly 50 percent in Kansas have endorsed teaching some form of creationism alongside evolutionary theory.

"The real danger is not that teachers will start teaching creationism," says geologist Warren Allmon, the director of the Museum of the Earth in Ithaca, N.Y., which features an exhibit on evolution seen by thousands of school kids every year. "It's that they will stop, or reduce, the teaching of evolution. Many now just assign [students to voluntarily read] the chapters on evolution and don't cover it in class, in order to avoid controversy."

Allmon's museum has initiated a special training program to help museum docents answer the growing number of questions about creationism and intelligent design that come from visitors. "There has been a definite increase over the past two years," he says, "though the questions are by no means all hostile ones coming from creationists. Even visitors who understand evolution are curious about what all the commotion over I.D. is about." The museum docents explain to visitors that the theory of evolution neither confirms nor denies the existence of God and that such questions are simply not the bailiwick of biology.

Many high school biology teachers still object to even discussing I.D. in their classrooms, saying that although there are lively controversies within evolutionary biology (arguments, for example about the relative importance of natural selection, sexual selection and physiological selection, or about the mode and tempo of evolutionary change), they are not "weaknesses" but inevitable and welcome signs of a lively science. Teaching I.D. alongside evolution would give it more scientific credibility than it deserves, they say.

"Whenever you debate, you should really have one person representing I.D. on one side and 10,000 scientists on the other," says Brown University biologist Miller. "That would give a fair representation of the division of opinion in the scientific community."

But refusing to discuss it gives the wrong impression, too, making it appear that scientists are afraid of it, think it is irrelevant, or are just too arrogant to bother. "There is an intellectual curiosity on the part of kids I teach," says Mark Stefanski, a high school science teacher at Marin Academy, a private school in San Rafael, Calif. "I don't want to teach them creationism and I won't. But they do want to know where all of this interest in intelligent design and creationism is coming from."

College-level academics and research scientists face a more acute Catch-22. If they debate creationists and I.D. proponents in public, they lend credibility to the notion that there is a substantial debate going on within science, says Miller, one of the few prominent biologists who publicly debates intelligent-design advocates. His many debates and published point-and-counterpoints with I.D.'ers were cited as evidence of scientific controversy in Dover. "But if we don't engage, it can mean ceding the public square to the other side, and that can be a huge mistake as well."

"The important thing," Miller says, "is always to make the distinction between the very real debate that is going on over science education and the non-debate among scientists about the validity of evolution on the whole. There is not a single scientific organization of any size anywhere in the world that has endorsed the point of view that these folks want to elevate to the level of science."

Teachers are addressing intelligent design in their classrooms in a variety of ways. Carol Dixon, a high school biology teacher in Castro Valley, a suburb east of San Francisco, tells her students that any discussion of religious subjects must be kept out of the science classroom because the First Amendment's establishment clause, protecting the separation of church and state, requires it.

"If my students ask about intelligent design or creationism, or ask me about my own religious views, I simply tell them that it's not an appropriate subject for science class," she says. "If I were required to teach about creationism or intelligent design, I'd have some serious problems. I'm just not trained to teach religion. And I don't want to."

Melissa Kindelspire, another high school biology teacher in Castro Valley, doesn't pull any punches when it comes to teaching evolution. "The theory of evolution via natural selection is the thing that ties everything else we are learning in my classroom together. If and when there are other [non-evolution-based] scientific theories that are accepted by scientists, I will introduce them," she says. But in her opinion, I.D. doesn't come close to fitting that bill.

Kindelspire says that she has heard from some students and parents who are troubled by her straightforward defense of evolution. But when parents give her brochures about creationism, she simply thanks them and puts the brochures aside. However, one recent incident did make her a little uneasy. She was told that the science department, and her name specifically, came up at a local church in a sermon about "evil influences on the parishioners' children's souls."

Other teachers, such as Dawn Wendzel and Julie Olson, who teach seventh-grade science in Gull Lake Middle School, near Kalamazoo, Mich., have simply woven I.D. into their curriculum. The two teachers, both evangelical Christians, presented I.D. as an alternative to evolution and had their students write papers comparing and evaluating the two views. Complaints from parents brought their practice to a halt. But Gull Lake school administrators have decided to make I.D. the subject of an elective social study class available to high school students.

The Discovery Institute advocates "teaching the controversy" about evolution, an approach that casts doubt on the biological validity of natural selection and gives credence to I.D. The term was coined about 20 years ago by Gerald Graff, an English professor at the University of Chicago, to describe a method of exploring cultural disagreements over whether, say, Huck Finn is a racist, rather than simply teaching one side or the other of a conflict.

Graff, a self-described "secular left-liberal" says he first felt as if his "pocket had been picked when the intelligent design crowd appropriated my slogan." But recently, in an essay in Inside Higher Ed, Graff suggests there may be a silver lining to the I.D.-evolution debate.

"I can at least imagine a classroom debate between creationism and evolution that might be just the thing to wake up the many students who now snooze through science courses," Graff writes. "Such students might come away from such a debate with a sharper understanding of the grounds on which established science rests, something that even science majors and advanced graduate students now don't often get from conventional science instruction."

Some teachers, such as Susan Sperling, an anthropology and interdisciplinary studies professor at Chabot College in Hayward, Calif., have adopted a version of this process. She is trying to teach the controversy without granting undue legitimacy to I.D. as science. This semester, Sperling, a Berkeley-trained physical anthropologist, is holding a course in which her students learn about evolutionary biology by reading Charles Darwin's "On the Origin of Species."

In connection with the course, Sperling organized a series of three public lectures about creationism, I.D. and evolution. "I thought it would be good to have students and others in our community provided with a forum for looking at intelligent design in its larger cultural context," Sperling says, "and to be able to see the debate from different sides."

I decided to attend the lectures for myself. I wanted to see how the largely working-class, middle-American students at Chabot would respond to the different lecturers: Elsberry, an evolutionary biologist; Ken Malloy, a young-earth creationist and author; and Philip Johnson, a retired UC-Berkeley law professor who is considered the father of I.D.

Elsberry launched the series to a standing-room-only crowd, with a detailed review of the history of evolutionary theory from pre-Darwin days until now. It was thorough and fair and totally lacking in hype or flair. As one who has long studied evolution and natural history, I managed to follow along. But judging by the drooping heads and the dozen or so empty seats when the lights came up, I'm not sure how many of the Chabot students did.

At one point, as Elsberry was zipping through his talk about the synthesis of species, the young woman next to me muttered "Jesus" in exasperation before abandoning her frantic effort to take notes. For the rest of the talk, she just sat there, eyes half shut, letting the names, facts and figures wash over her like a foreign language.

Elsberry's commitment to detail and lack of rhetorical flourish sent Sperling into a bit of a panic. "Dr. Elsberry is a wonderful and meticulous scientist, but I don't think he really could see how little of what he was saying his audience even understood," she said after his lecture. "And now, to be brutally honest, I'm worried that I may be undermining my own science teaching." In other words, she was afraid the next speakers, the anti-evolutionists, might win the day.

I could see what an uphill climb it is for biologists trying to compete for the hearts and minds of Americans that are undereducated in the sciences, especially in evolutionary biology. Evolutionary theory isn't Einsteinian relativity, but it is counterintuitive in many ways and a detailed explanation is needed for it to make much sense, while the essential I.D. argument has a strong intuitive appeal: Life is too complex and meaningful to be accidental.

Yet some Chabot faculty members were just happy to see students and the community showing up for a public science lecture at all. "I could never draw this kind of crowd with a straightforward lecture on astronomy," Scott Hildreth, a lecturer in astrophysics at Chabot, told me. "This is a great forum in which to teach students about the meaning of science, where its limits are, and what it's all about."

A week later, Malloy, the young-earth preacher, was before the same audience explaining his literal interpretation of Genesis: Earth is about 6,000 years old, Noah's Ark was real (it has been found in Turkey, proven authentic beyond a shadow of doubt, he says), and rescued not only two of every currently living species, but two of every species that had ever lived, including Tyrannosaurus rex. He explained that T. rex had had to be brought aboard as babies, due to space constraints. "I use the words 'evolutionist' and 'atheist' interchangeably," he said. He dismisses carbon and other dating techniques of fossils as simply inaccurate. It was almost surreal, an evolutionist's nightmare, seeing a fundamentalist creationist standing in a college lab teaching a biology lecture right out of the Bible.

The lab full of students sat up straight and paid attention during Malloy's talk. For one thing, unlike Elsberry's lecture, it allowed them to easily follow his drift, even if, as Sperling pointed out afterward, "he might as well have been a tribesman telling creation stories from the highlands of New Guinea."

"Even though he said his claims were true, there wasn't any mistaking them for science," says Chabot freshman Christopher Jacob. "It was just interesting to see how different someone's view of the world could be."

The next lecture, by Johnson, would be more problematic for the 18-year-old Jacob, who afterward said he was thinking of studying biology to protect science from "political attacks like this."

Johnson's 1993 book, "Darwin on Trial," the publication of which marks the birth of I.D., is a rhetorically powerful critique of evolutionary biology that avoids saying much about God or the Bible. In his lecture at Chabot, Johnson argued that the evidence for I.D. is strong, that evolution is full of logical and evidentiary gaps. "Science should follow the evidence wherever it leads, not draw some arbitrary line at the appearance of design," he said. "To say, 'Despite the evidence [for design], we won't look there' is very unscientific."

Although Johnson is recovering from a stroke that impaired his speech, he had no problem holding the Chabot College audience's attention. Even Sperling, a trained evolutionist, was compelled by some of Johnson's arguments, saying they caused her to "think hard and long about how the boundaries of science get drawn."

Now that the lecture series is over, Sperling says she is convinced "that the evidence, power and logic of evolution speak for themselves. As an evolutionist and teacher, I'm not in the business of compelling anyone's opinion. There are good reasons that evolution is the organizing theory of modern biology, and my students can see that and think critically and intelligently about what they are hearing."

Time will tell whether I.D. continues to thrive in the nation's public schools. In the meantime, John Hoopes, an anthropologist at the University of Kansas, has designed his own intelligent approach to teaching I.D. Next fall, he will hold a class titled "Archaeological Myths and Realities." It will cover UFOs, crop circles, ESP and intelligent design.

-- By Gordy Slack

The "war on terror" is global and indefinite in scope, effectively removing traditional limits of wartime authority

By Barton Gellman and Dafna Linzer, Washington Post
Updated: 12:56 a.m. ET Dec. 18, 2005

In his four-year campaign against al Qaeda, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s.

The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress.

Since October, news accounts have disclosed a burgeoning Pentagon campaign for "detecting, identifying and engaging" internal enemies that included a database with information on peace protesters. A debate has roiled over the FBI's use of national security letters to obtain secret access to the personal records of tens of thousands of Americans. And now come revelations of the National Security Agency's interception of telephone calls and e-mails from the United States -- without notice to the federal court that has held jurisdiction over domestic spying since 1978.

Waging an adamant defense
Defiant in the face of criticism, the Bush administration has portrayed each surveillance initiative as a defense of American freedom. Bush said yesterday that his NSA eavesdropping directives were "critical to saving American lives" and "consistent with U.S. law and the Constitution." After years of portraying an offensive waged largely overseas, Bush justified the internal surveillance with new emphasis on "the home front" and the need to hunt down "terrorists here at home."

Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. Bush said yesterday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as "plenary" -- a term defined as "full," "complete," and "absolute."


• More U.S. news
A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.

Extent of policy shift disputed
Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.

"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."

Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."

The high-ranking intelligence official, who spoke with White House permission but said he was not authorized to be identified by name, said Graham is "misremembering the briefings," which in fact were "very, very comprehensive." The official declined to describe any of the substance of the meetings, but said they were intended "to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, 'I was briefed on this but I had no idea that -- ' and you can fill in the rest."

By Graham's account, the official said, "it appears that we held a briefing to say that nothing is different . . . . Why would we have a meeting in the vice president's office to talk about a change and then tell the members of Congress there is no change?"

House Minority Leader Nancy Pelosi (Calif.), who was also present as then ranking Democrat of the House intelligence panel, said in a statement yesterday evening that the briefing described "President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities." She said she "expressed my strong concerns" but did not elaborate.

The NSA disclosures follow exposure of two other domestic surveillance initiatives that drew shocked reactions from Congress and some members of the public in recent months.

Beginning in October, The Washington Post published articles describing a three-year-old Pentagon agency, the size and budget of which are classified, with wide new authority to undertake domestic investigations and operations against potential threats from U.S. residents and organizations against military personnel and facilities. The Counterintelligence Field Activity, or CIFA, began as a small policy-coordination office but has grown to encompass nine directorates and a staff exceeding 1,000. The agency's Talon database, collecting unconfirmed reports of suspicious activity from military bases and organizations around the country, has included "threat reports" of peaceful civilian protests and demonstrations.

CIFA has also been empowered with what the military calls "tasking authority" -- the ability to give operational orders -- over Army, Navy and Air Force units whose combined roster of investigators, about 4,000, is nearly as large as the number of FBI special agents assigned to counterterrorist squads. Pentagon officials said this month they had ordered a review of the program after disclosures, in The Post, NBC News and the washingtonpost.com Web log of William M. Arkin, that CIFA compiled information about U.S. citizens engaging in constitutionally protected political activity such as protests against military recruiting.

In November, The Post disclosed an exponentially growing practice of domestic surveillance under the USA Patriot Act, using FBI demands for information known as "national security letters." Created in the 1970s for espionage and terrorism investigations, the letters enabled secret FBI review of the private telephone and financial records of suspected foreign agents. The Bush administration's guidelines after the Patriot Act transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

The Post reported that the FBI has issued tens of thousands of national security letters, extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. Most of the U.S. residents and citizens whose records were screened, the FBI acknowledged, were not suspected of wrongdoing.

The burgeoning use of national security letters coincided with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed.

Yesterday's acknowledgment of warrantless NSA eavesdropping brought the most forthright statement from the president that his war on terrorism is targeting not only "enemies across the world" but "terrorists here at home." In the "first war of the 21st century," he said, "one of the most critical battlefronts is the home front."

Bush sidestepped some of the implications by citing examples only of foreigners who infiltrated the United States -- Saudi citizens Nawaf Alhazmi and Khalid Almihdhar, two of the Sept. 11, 2001, hijackers. But the most fundamental changes undertaken in the Bush administration's surveillance policy are the ones that have broadened the powers of the NSA, FBI and Pentagon to spy on "U.S. persons" -- American citizens, permanent residents and corporations -- on American soil.

Roger Cressey, who was principal deputy to the White House counterterrorism chief when terrorists destroyed the World Trade Center and a wing of the Pentagon, said "the amount of domestic surveillance is an admission of fundamental gaps in our understanding of what is happening in our country."

Those anxieties about unknown threats have ebbed and flowed since World War I, according to a bipartisan government commission chaired by Sen. Daniel Patrick Moynihan. President Woodrow Wilson warned against "the poison of disloyalty" and another loyalty campaign created black lists of accused Communists in the 1950s. In the 1960s and 1970s, the Army and the NSA collected files and eavesdropped on thousands of anti-Vietnam War and civil rights activists.

Congress asserted itself in the 1970s, imposing oversight requirements and passing the Foreign Intelligence Surveillance Act (FISA). Kate Martin, director of the Center for National Security Studies, said FISA "expressly made it a crime for government officials 'acting under color of law' to engage in electronic eavesdropping 'other than pursuant to statute.' " FISA described itself, along with the criminal wiretap statute, as "the exclusive means by which electronic surveillance . . . may be conducted."

No president before Bush mounted a frontal challenge to Congress's authority to limit espionage against Americans. In a Sept. 25, 2002, brief signed by then-Attorney General John D. Ashcroft, the Justice Department asserted "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."

The brief made no distinction between suspected agents who are U.S. citizens and those who are not. Other Bush administration legal arguments have said the "war on terror" is global and indefinite in scope, effectively removing traditional limits of wartime authority to the times and places of imminent or actual battle.

"There is a lot of discussion out there that we shouldn't be dividing Americans and foreigners, but terrorists and non-terrorists," said Gordon Oehler, a former chief of the CIA's Counterterrorist Center who served on last year's special commission assessing U.S. intelligence.

By law, according to University of Chicago scholar Geoffrey Stone, the differences are fundamental: Americans have constitutional protections that are enforceable in court whether their conversations are domestic or international.

Bush's assertion that eavesdropping takes place only on U.S. calls to overseas phones, Stone said, "is no different, as far as the law is concerned, from saying we only do it on Tuesdays."

Michael J. Woods, who was chief of the FBI's national security law unit when Bush signed the NSA directive, described the ongoing program as "very dangerous." In the immediate aftermath of a devastating attack, he said, the decision was a justifiable emergency response. In 2006, "we ought to be past the time of emergency responses. We ought to have more considered views now. . . . We have time to debate a legal regime and what's appropriate."



December 20, 2005
Administration Cites War Vote in Spying Case

By ERIC LICHTBLAU and DAVID E. SANGER
WASHINGTON, Dec. 19 - President Bush and two of his most senior aides argued Monday that the highly classified program to spy on suspected members of terrorist groups in the United States grew out of the president's constitutional authority and a 2001 Congressional resolution that authorized him to use all necessary force against those responsible for the Sept. 11 attacks.

Offering their most forceful and detailed defense of the program in a series of briefings, television interviews and a hastily called presidential news conference, administration officials argued that the existing Foreign Intelligence Surveillance Act was not written for an age of modern terrorism. In these times, Mr. Bush said, a "two-minute phone conversation between somebody linked to Al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives."

Mr. Bush strongly hinted that the government was beginning a leak investigation into how the existence of the program was disclosed. It was first revealed in an article published on The New York Times Web site on Thursday night, though some information that administration officials argued could be useful to terrorists had been omitted.

"We're at war, and we must protect America's secrets," Mr. Bush said. "And so the Justice Department, I presume, will proceed forward with a full investigation."

He also lashed out again, as he did Saturday, at Democrats and Republicans in the Senate who have blocked the reauthorization of the broad antiterrorism law known as the USA Patriot Act, saying they voted for it after the Sept. 11 attacks "but now think it's no longer necessary."

Several of the senators responded that Mr. Bush would not accept amendments to the act that they say are necessary to protect civil liberties and that he would not accept a short-term renewal of the existing law while negotiations continue.

In the first of a series of appearances Monday to defend the intelligence operations, Attorney General Alberto R. Gonzales told reporters that "this electronic surveillance is within the law, has been authorized" by Congress. "That is our position," he added.

Officials with knowledge of the program have said the Justice Department did two sets of classified legal reviews of the program and its legal rationale. Mr. Gonzales declined to release those opinions Monday.

Two of the key Democrats who had been briefed on the program said Monday that they had been told so little that there was no effective Congressional oversight for it.

In a highly unusual move, Senator John D. Rockefeller IV of West Virginia released a letter he sent to Vice President Dick Cheney on July 17, 2003, complaining that "given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities." The letter was handwritten because secrecy rules prevented him from giving it to anyone to type.

On Monday Mr. Rockefeller said that after he sent his letter to Mr. Cheney, "these concerns were never addressed, and I was prohibited from sharing my views with my colleagues."

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said, "I am skeptical of the attorney general's citation of authority, but I am prepared to listen."

Mr. Specter, who has said he will hold hearings on the program soon after the confirmation hearings for the Supreme Court nominee, Judge Samuel A. Alito Jr., said he did not believe the president's decision to inform a handful of members of Congress was sufficient.

"I think it does not constitute a check and balance," he said. "You can't have the administration and a select number of members alter the law. It can't be done."

Mr. Specter also predicted that the domestic spying debate would spill over into Judge Alito's confirmation. On Monday, he sent the judge a letter saying he intended to ask "what jurisprudential approach" the judge would use in determining if the president had authority to establish the program.

"The fat's in the fire," Mr. Specter said. "This is going to be a big, big issue. There's a lot of indignation across the country, from what I see."

Mr. Bush, Mr. Gonzales and Lt. Gen. Gen. Michael V. Hayden, the nation's second-ranking intelligence official and a former director of the National Security Agency, which conducted the surveillance, stepped around questions about why officials decided not to use emergency powers they have under the existing foreign surveillance law. The law allows them to tap international communications of people in the United States and then go to a secret court up to 72 hours later for retroactive permission.

"The whole key here is agility," General Hayden said, adding that the aim "is to detect and prevent."

Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified "hot numbers" - the telephone numbers of suspects - and then hooked into their conversations lay behind the need to operate outside the old law.

Soon after Mr. Bush spoke, three senior Democrats influential on national security matters - Senators Carl Levin of Michigan, Jack Reed of Rhode Island and Russell Feingold of Wisconsin - assailed the president for bypassing the court that Congress set up a quarter-century ago to make sure intelligence agencies do not infringe on the privacy of Americans.

"He can go to the court retroactively," Mr. Levin, the ranking Democrat on the Armed Services Committee, told reporters, referring to the 72-hour rule.

Mr. Bush - who initially resisted a public investigation into the Sept. 11 attacks and the intelligence failures in Iraq - used his news conference Monday to discourage Congress from publicly delving into the program, saying that "public hearings on programs will say to the enemy, 'Here's what they do, adjust.' " He repeatedly cited the case of Osama bin Laden, who was widely reported to have stopped using a satellite telephone after news reports that intelligence agencies were listening in.

The White House briefing itself was unusual, with two of the administration's most senior officials discussing legal and operational details of what Mr. Gonzales described as "probably the most classified program that exists in the United States government."

Mr. Gonzales said the president had "the inherent authority under the Constitution" as commander in chief to authorize the program. He also argued that the legal rationale followed the logic in a Supreme Court decision last year in the case of an enemy combatant named Yaser Esam Hamdi, an American citizen who was detained in Afghanistan on the battlefield.

In addition, Mr. Gonzales said the administration believed that Congress gave the president clear and broad authorization to attack Al Qaeda in a resolution passed on Sept. 14, 2001, that set the stage for the invasion of Afghanistan. That resolution authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Many members of Congress say that in authorizing the military invasion of Afghanistan days after the Sept. 11 attacks, they never intended or envisioned that the authority could be applied to searches without warrants within the United States.

Mr. Gonzales and General Hayden were careful to emphasize that the surveillance program was "limited" in scope.

"People are running around saying that the United States is somehow spying on American citizens calling their neighbors," Mr. Gonzales said. In fact, he said, it was "very, very important to understand" that the program is limited to calls and communications between the United States and foreign countries.

"What we're trying to do is learn of communications, back and forth, from within the United States to overseas members of Al Qaeda," he said. "And that's what this program is about."

He added: "This is not about wiretapping everybody. This is about a very concentrated, very limited program focused on gaining information about our enemy."

As the administration has argued since the disclosure of the program Thursday night, Mr. Gonzales and General Hayden said the normal system for issuing warrants for a domestic surveillance operation - required in 1978 in a program that grew out of the improper surveillance of political dissidents - was inadequate in some cases.

Regarding a possible leak investigation, which would be handled by the Justice Department, Mr. Gonzales said: "This is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we'll just have to wait and see."

When questions at the news conference turned to Iraq, Mr. Bush urged reporters to look at rationales he offered for invading the country that went beyond its suspected caches of weapons of mass destruction, including his vision of creating democratic havens in the Middle East. But he acknowledged that the failure to find weapons in Iraq made it difficult to make the case "in the public arena" that countries like Iran are pursuing nuclear weapons, as Mr. Bush has charged.

He said, "People will say, if we're trying to make the case on Iran, well, the intelligence failed in Iraq, therefore how can we trust the intelligence in Iran?" Later, he added, "It's no question that the credibility of intelligence is necessary for good diplomacy."

Eric Schmitt and Sheryl Gay Stolberg contributed reporting for this article.

'The Republican War on Science,' by Chris Mooney

Political Science
Review by JOHN HORGAN

Last spring, a magazine asked me to look into a whistleblower case involving a United States Fish and Wildlife Service biologist named Andy Eller. Eller, a veteran of 18 years with the service, was fired after he publicly charged it with failing to protect the Florida panther from voracious development. One of the first species listed under the Endangered Species Act, the panther haunts southwest Florida's forests, which builders are transforming into gated golf communities. After several weeks of interviews, I wrote an article that called the service's treatment of Eller "shameful" - and emblematic of the Bush administration's treatment of scientists who interfere with its probusiness agenda.

My editor complained that the piece was too "one-sided"; I needed to show more sympathy to Eller's superiors in the Wildlife Service and to the Bush administration. I knew what the editor meant: the story I had written could be dismissed as just another anti-Bush diatribe; it would be more persuasive if it appeared more balanced. On the other hand, the reality was one-sided, to a startling degree. An ardent conservationist, Eller had dreamed of working for the Wildlife Service since his youth; he collected first editions of environmental classics like Rachel Carson's "Silent Spring." The officials who fired him based their denial that the panther is threatened in part on data provided by a former state wildlife scientist who had since become a consultant for developers seeking to bulldoze panther habitat. The officials were clearly acting in the spirit of their overseer, Secretary of the Interior Gale Norton, a property-rights advocate who has questioned the constitutionality of aspects of the Endangered Species Act.

This episode makes me more sympathetic than I might otherwise have been to "The Republican War on Science" by the journalist Chris Mooney. As the title indicates, Mooney's book is a diatribe, from start to finish. The prose is often clunky and clichéd, and it suffers from smug, preaching-to-the-choir self-righteousness. But Mooney deserves a hearing in spite of these flaws, because he addresses a vitally important topic and gets it basically right.

Mooney charges George Bush and other conservative Republicans with "science abuse," which he defines as "any attempt to inappropriately undermine, alter or otherwise interfere with the scientific process, or scientific conclusions, for political or ideological reasons." Science abuse is not an exclusively right-wing sin, Mooney acknowledges. He condemns Greenpeace for exaggerating the risks of genetically modified "Frankenfoods," animal-rights groups for dismissing the medical benefits of research on animals and John Kerry for overstating the potential of stem cells during his presidential run.

In "politicized fights involving science, it is rare to find liberals entirely innocent of abuses," Mooney asserts. "But they are almost never as guilty as the Right." By "the Right," Mooney means the powerful alliance of conservative Christians - who seek to influence policies on abortion, stem cells, sexual conduct and the teaching of evolution - and advocates of free enterprise who attempt to minimize regulations that cut into corporate profits. The champion of both groups - and the chief villain of Mooney's book - is President Bush, whom Mooney accuses of having "politicized science to an unprecedented degree."

Some might quibble with "unprecedented." When I starting covering science in the early 1980's, Ronald Reagan was pushing for a space-based defense against nuclear missiles, called Star Wars, that a chorus of scientists dismissed as technically unfeasible. Reagan stalled on acknowledging the dangers of acid rain and the buildup of ozone-destroying chlorofluorocarbons in the atmosphere. Warming the hearts of his religious fans, Reagan voiced doubts about the theory of evolution, and he urged C. Everett Koop, the surgeon general, to investigate whether abortion harms women physically and emotionally. (Koop, though an ardent opponent of abortion, refused.) Mooney notes this history but argues that the current administration has imposed its will on scientific debates in a more systematic fashion, and he cites a slew of cases - including the Florida panther affair - to back up his claim.

One simple strategy involves filling federal positions on the basis of ideology rather than genuine expertise. Last year, the White House expelled the eminent cell biologist Elizabeth Blackburn, a proponent of embryonic stem-cell research, from the President's Council on Bioethics and installed a political scientist who had once declared, "Every embryo for research is someone's blood relative." And in 2002 the administration appointed the Kentucky gynecologist and obstetrician W. David Hager to the Reproductive Health Drugs Advisory Committee of the Food and Drug Administration. Hager has advocated treating premenstrual syndrome with Bible readings and has denounced the birth control pill.

In addition to these widely reported incidents, Mooney divulges others of which I was unaware. In 2003 the World Health Organization and Food and Agricultural Organization (W.H.O./F.A.O.), citing concerns about rising levels of obesity-related disease, released a report that recommended limits on the intake of fat and sugar. The recommendations reflected the consensus of an international coalition of experts. The Sugar Association, the Grocery Manufacturers of America and other food industry groups attacked the recommendations.

William R. Steiger, an official in the Department of Health and Human Services, then wrote to W.H.O.'s director general to complain about the dietary report. Echoing the criticism of the industry groups, Steiger questioned the W.H.O. report's linkage of obesity and other disorders to foods containing high levels of sugar and fat, and he suggested that the report should have placed more emphasis on "personal responsibility." Steiger later informed the W.H.O. that henceforth only scientists approved by his office would be allowed to serve on the organization's committees.

In similar fashion, the Bush administration has sought to control the debate over climate change, biodiversity, contraception, drug abuse, air and water pollution, missile defense and other issues that bear on the welfare of humans and the rest of nature. What galls Mooney most is that administration officials and other conservative Republicans claim that they are guided by reason and respect for "sound science," whereas their opponents are ideologues peddling "junk science."

In the most original section of his book, Mooney credits "Big Tobacco" with inventing and refining this Orwellian tactic. After the surgeon general's office released its landmark 1964 report linking smoking to cancer and other diseases, the tobacco industry sought to discredit the report with its own experts and studies. "Doubt is our product," declared a 1969 Brown & Williamson memo spelling out the strategy, "since it is the best means of competing with the 'body of fact' that exists in the mind of the general public."

After the E.P.A. released a report on the dangers of secondhand smoke in 1992, the Tobacco Institute berated the agency for preferring "political correctness over sound science." Within a year Philip Morris helped to create a group called The Advancement of Sound Science Coalition (Tassc), which challenged the risks not only of secondhand smoke but also of pesticides, dioxin and other industrial chemicals. (The executive director of Tassc in the late 1990's was Steven Milloy, who now "debunks" global warming and other environmental threats in the Foxnews.com column "Junk Science.") Newt Gingrich and other Republicans soon started invoking "sound science" and "junk science" while criticizing government regulations.

A veteran tobacco lobbyist also played a role in the Data Quality Act, which Mooney calls "a science abuser's dream come true." Jim Tozzi, who served in the Office of Management and Budget before becoming a consultant for Philip Morris and other companies, helped draft the legislation and slip it into a massive appropriations bill signed into law in 2000, late in the Clinton administration. The act, which raises the standard for scientific evidence justifying federal regulations, is designed to induce what one critic calls "paralysis by analysis." While the law does not exclusively serve business interests (for example, Andy Eller successfully used it to challenge the Fish and Wildlife Service's policies on panther habitat), they have been its main beneficiaries. Already it has been employed by loggers, herbicide makers, manufacturers of asbestos brakes and other companies to challenge unwelcome regulations.

Mooney, who grew up in New Orleans, seems particularly incensed when he addresses the issue of global warming. He notes that Bush officials have repeatedly ignored or altered reports by the National Academy of Sciences, the E.P.A. and other groups tying global warming to fossil fuel emissions. Mooney devotes nearly a whole chapter to denouncing Senator Daniel Inhofe of Oklahoma, a Republican and chairman of the Committee on Environment and Public Works, who once said human-induced global warming might be "the greatest hoax ever perpetrated on the American people." Republicans' "refusal to consider mainstream scientific opinion fuels an atmosphere of policy gridlock that could cost our children dearly," declares Mooney, who finished his book before Hurricane Katrina. I can only imagine how he feels now. Mooney implicates the news media in this crisis. Too often, he says, reporters covering scientific debates give fringe views equal weight in a misguided attempt to achieve "balance."

To back up this claim, Mooney cites a study of coverage of global warming in four major newspapers, including this one, from 1988 to 2002. The study concluded that more than 50 percent of the stories gave "roughly equal attention" to both sides of the debate, even though by 1995 most climatologists accepted human-induced global warming as highly probable. Mooney notes that one prominent doubter and sometime Bush administration adviser on climate change, the M.I.T. meteorologist Richard Lindzen, is a smoker who has also questioned the evidence linking smoking and lung cancer.

Mooney's critique has understandably annoyed some of his colleagues. In a review in The Washington Post, the journalist Keay Davidson faults Mooney for not acknowledging how hard it can be to distinguish good science from bad. Philosophers call this the "demarcation problem." Demarcation can indeed be difficult, especially if all the scientists involved are trying in good faith to get at the truth, and Mooney does occasionally imply that demarcation consists simply of checking scientists' party affiliations. But in many of the cases that he examines, demarcation is easy, because one side has an a priori commitment to something other than the truth - God or money, to put it bluntly.

Conservative complaints about federally financed "junk science" may ultimately prove self-fulfilling. Government scientists - and those who receive federal funds - may toe the party line to avoid being punished like the whistleblower Andy Eller (who was rehired last June after he sued for wrongful termination). Increasingly, competent scientists will avoid public service, degrading the quality of advice to policy makers and the public still further. Together, these trends threaten "not just our public health and the environment," Mooney warns, "but the very integrity of American democracy, which relies heavily on scientific and technical expertise to function." If this assessment sounds one-sided, so is the reality that it describes.

John Horgan is director of the Center for Science Writings at the Stevens Institute of Technology. His latest book is "Rational Mysticism."

Enron redux

Living in the Enron Dream World

By JOSEPH NOCERA
THIS past Tuesday, Kenneth L. Lay, the disgraced former chairman of Enron, gave a remarkable speech before a hometown crowd in Houston. It's not every day that a prominent white-collar defendant makes an impassioned public defense barely a month before his criminal trial is set to start. That sort of thing tends to tick off prosecutors, not to mention judges.

Then there was the matter of the speech's content. Aggressively self-pitying would sum up the tone of Mr. Lay's remarks. "Of anything and everything that I could imagine might happen to me in my lifetime," Mr. Lay said, according to a text of his speech posted on his Web site, "the one thing I would have never even remotely speculated about was that some day I would become entangled in our country's criminal justice system."

He then went on to lay out his belief that a huge miscarriage of justice had taken place, largely because the "political and public hysteria" over Enron's failure had prompted the Justice Department's Enron Task Force to search for scalps among victimized Enron executives like, well, himself.

"Contrary to popular belief today," he said, "I firmly believe that Enron was a great company. Although, like most companies, it was not without some problems, Enron was a strong, profitable, growing company even into the fourth quarter of 2001."

As he has done consistently since Enron's downfall, Mr. Lay assigned none of the blame for what happened to himself, pointing his finger instead at Enron's former chief financial officer, Andrew S. Fastow, whose secret partnerships and pocket-lining side deals, according to Mr. Lay, caused the banks to lose confidence in the company once they were exposed, after which it lost its access to the capital markets and was doomed.

"The Enron Task Force investigation," Mr. Lay said, "is largely a case about normal business activities typically engaged in on a daily basis by corporate officers of publicly held companies throughout the country." The task force, he added, was trying to "criminalize these very same business activities."

He concluded by asking former Enron employees - the same people who lost everything when the company crashed to earth - to stand alongside him and proclaim "the truth": that Enron was "a real company, a substantial company, an honest company, a company that had a vision and values, a company that changed industries and markets for the better, a company that we were all proud to work for."

"A great company?" "A strong, growing, profitable company?" "A real company, a substantial company, an honest company?" Who is he trying to kid?

Actually, I know who he's trying to kid: himself. He's been kidding himself ever since Enron began its downward spiral in the summer of 2001. Indeed, it was precisely Mr. Lay's inability to look the thing straight in the eye and admit what Enron really was - a corporate version of three-card monte - that has gotten him in so much trouble.

Let's skip over the single stupidest thing Mr. Lay did during all the years he ran Enron, for which he can blame no one but himself. With the board's backing, Mr. Lay granted Mr. Fastow's request that he be exempt from the company's conflict of interest rules so that he could manage - and profit from - a series of partnerships that existed solely to conduct transactions with Enron. Even a saint shouldn't be put in the position of negotiating on both sides of a deal, and Mr. Fastow was hardly a saint.

Let's also skip over the reason Mr. Fastow set up the partnerships, which seems to have escaped Mr. Lay. They were vehicles that Enron absolutely had to have to disguise its true financial condition. With the help of the Fastow partnerships - and Mr. Fastow's willing accomplices on Wall Street - Enron hid billions of dollars in debt, created illusory cash flow, and ginned up profits that never really existed.

An argument can be made, certainly, that this or that transaction amounted to "normal business activity," but taken together, their fundamental purpose was to paper over the fact that more cash was going out the door than was coming in. Far from tearing down Enron, Mr. Fastow was actually propping it up. Sure, he was skimming a little off the top for himself, but that was hardly the central problem.

Finally, let's take Mr. Lay at his word that he was clueless about the shell game that was going on just outside his door. After all, the Justice Department appears to have accepted Mr. Lay's argument that he was merely asleep at the switch, as opposed to criminally negligent, for the great bulk of Enron's sordid history.

But in the months before Enron went bankrupt, everything changed for Mr. Lay - and it is his actions during that narrow time frame that got him indicted. Before that time, Mr. Lay could fuss over fabric swatches for the new company airplane while Mr. Skilling ran the show, an anecdote recounted in "The Smartest Guys in the Room" (a book, it should be noted, that I played a role in creating, and in which I have a financial interest).

But from August to December 2001, all of Enron's problems were put right under Mr. Lay's nose. He couldn't avoid them. And given the choice between telling the truth to investors or continuing to pretend that Enron was a "strong, growing, profitable company," Mr. Lay opted for the latter. Let me put it another way. He lied through his teeth.

You remember those final months of the Enron debacle, don't you? Mr. Skilling, who, after years as the company's president, had assumed the title of chief executive just that February, suddenly quit late in the summer of 2001. As the stock swooned, and Wall Street began to ask tough questions about the company's condition, Mr. Lay assumed the chief executive position. He seemed to believe that his mere return as C.E.O. would be all it took to get the ship back on course.

But he was badly mistaken. By then, he company's water business had collapsed. Its broadband business was on life support. Sherron Watkins had written her infamous memo, outlining the accounting scams that had gone on under Mr. Fastow, and the likelihood that they would soon unravel. One such scam, called the Raptors, was already coming apart, which meant the company was going to have to take a huge hit to its earnings, possibly even a restatement. Arthur Andersen, Enron's craven accountants, had found a $1.2 billion mistake on the company's balance sheet. And on, and on.

And in the face of all those problems - problems that were being explained to him, in detail, by underlings; problems that were surely going to require the company to take an enormous loss in the next quarter - Mr. Lay told the world that everything was just fine. "My personal belief is that Enron stock is an incredible bargain at current prices," he told employees on Sept. 26. The third quarter, he added, "is looking great; we're going to hit our numbers."

Repeatedly in those final months, Mr. Lay took the same message to Wall Street. Never once that entire time - not after the disastrous third quarter, not after Mr. Fastow's partnerships were exposed, not after Mr. Fastow himself was finally fired, not even in the final days before the bankruptcy filing - did Mr. Lay try to tell the truth about Enron. He's right to say that the banks had lost confidence in the company. But it wasn't only because of the revelations about Mr. Fastow's partnerships. It was also because the banks stopped believing Mr. Lay.

To my mind, the reason Mr. Lay couldn't admit the truth was because he has always taken the view that perception is reality. If he could convince people that Enron was the greatest company ever, then it surely was - and never mind that its profits were largely fiction. Mr. Lay's belief in the power of public relations is the reason he gave a news conference the day after he was indicted. And it's the reason he made that speech in Houston this week. He seems to believe that if he says something often enough, and loudly enough, it will become true.

Does Mr. Lay know, in his heart of hearts, that he lied about Enron in those final months? I don't know. As the saying goes, a good con man always believes his own con. In any case, that's what the Enron trial will try to ascertain.

I do know this, though. Once the trial starts next month, Mr. Lay will finally have to leave the public relations dream world he's existed in for so long. No more hometown audiences applauding politely at his spin. Instead, he will face hostile questions from prosecutors, he'll be shown hard evidence of the Enron fraud, and he'll hear the testimony of former executives who will testify against him - starting with Mr. Fastow. He won't like that reality one bit. But then, reality has never been Mr. Lay's strong suit.