Meeting in the FBI's state-of-the-art command center in the J. Edgar Hoover Building, the lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches of homes and businesses of terrorism suspects - also without court approval, one current and one former government official tell US News. "There was a fair amount of discussion at Justice on the warrantless physical search issue," says a former senior FBI official. "Discussions about - if [the searches] happened - where would the information go, and would it taint cases."

FBI Director Robert Mueller was alarmed by the proposal, the two officials said, and pushed back hard against it. "Mueller was personally very concerned," one official says, "not only because of the blowback issue but also because of the legal and constitutional questions raised by warrantless physical searches." FBI spokesman John Miller said none of the FBI's senior staff are aware of any such discussions and added that the bureau has not conducted "physical searches of any location without consent or a judicial order."

In December, the New York Times disclosed the NSA's warrantless electronic surveillance program, resulting in an angry reaction from President Bush. It has not previously been disclosed, however, that administration lawyers had cited the same legal authority to justify warrantless physical searches. But in a little-noticed white paper submitted by Attorney General Alberto Gonzales to Congress on January 19 justifying the legality of the NSA eavesdropping, Justice Department lawyers made a tacit case that President Bush also has the inherent authority to order such physical searches. In order to fulfill his duties as commander in chief, the 42-page white paper says, "a consistent understanding has developed that the president has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes." The memo cites congressional testimony of Jamie Gorelick, a former deputy attorney general in the Clinton administration, in 1994 stating that the Justice Department "believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

"Black-bag jobs." Justice Department spokesman Brian Roehrkasse says the white paper cited the Gorelick testimony simply to bolster its legal defense of the NSA's electronic surveillance program. Roehrkasse points out that Justice Department lawyers have told Congress that the NSA program "described by the president does not involve physical searches." But John Martin, a former Justice Department attorney who prosecuted the two most important cases involving warrantless searches and surveillance, says the department is sending an unambiguous message to Congress. "They couldn't make it clearer," says Martin, "that they are also making the case for inherent presidential power to conduct warrantless physical searches."

It could not be learned whether the Bush administration has cited the legal authority to carry out such searches. A former marine, Mueller has waged a quiet, behind-the-scenes battle since 9/11 to protect his special agents from legal jeopardy as a result of aggressive new investigative tactics backed by the White House and the Justice Department, government officials say. During Senate testimony about the NSA surveillance program, however, Gonzales was at pains to avoid answering questions about any warrantless physical surveillance activity that may have been authorized by the Justice Department. On February 6, Patrick Leahy, the ranking Democrat on the Judiciary Committee, asked Gonzales whether the NSA spying program includes authority to tap E-mail or postal mail without warrants. "Can you do black-bag jobs?" Leahy asked. Gonzales replied that he was trying to outline for the committee "what the president has authorized, and that is all that he has authorized" - electronic surveillance. Three weeks later, Gonzales amended his answer to Leahy's question, stating that he was addressing only the legal underpinnings for the NSA surveillance program but adding: "I did not and could not address operational aspects of the program, or any other classified intelligence activities." In the past, when Congress has taken up explosive issues that affect the bureau, Mueller has made it a point, officials have said, to leave Washington - and sometimes the country - so as not to get pulled into the political crossfire. When Gonzales testified February 6, Mueller was on his way to Morocco.

Government officials told the magazine that Mueller and then Deputy Attorney General James Comey, who also questioned the NSA spying program, both believed that while it was a close call legally, the president did have authority to conduct electronic surveillance of terrorism suspects in the United States without court approval; both men, however, raised grave concerns about the possible use of any information obtained from any warrantless surveillance in a court of law.

At least one defense attorney representing a subject of a terrorism investigation believes he was the target of warrantless clandestine searches. On Sept. 23, 2005 - nearly three months before the Times broke the NSA story - Thomas Nelson wrote to US Attorney Karin Immergut in Oregon that in the previous nine months, "I and others have seen strong indications that my office and my home have been the target of clandestine searches." In an interview, Nelson said he believes that the searches resulted from the fact that FBI agents accidentally gave his client classified documents and were trying to retrieve them. Nelson's client is Soliman al-Buthe, codirector of a now defunct charity named al-Haramain, who was indicted in 2004 for illegally taking charitable donations out of the country. The feds also froze the charity's assets, alleging ties to Osama bin Laden. The documents that were given to him, Nelson says, may prove that al-Buthe was the target of the NSA surveillance program.

The searches, if they occurred, were anything but deft. Late at night on two occasions, Nelson's colleague Jonathan Norling noticed a heavyset, middle-aged, non-Hispanic white man claiming to be a member of an otherwise all-Hispanic cleaning crew, wearing an apron and a badge and toting a vacuum. But, says Norling, "it was clear the vacuum was not moving." Three months later, the same man, waving a brillo pad, spent some time trying to open Nelson's locked office door, Norling says. Nelson's wife and son, meanwhile, repeatedly called their home security company asking why their alarm system seemed to keep malfunctioning. The company could find no fault with the system.

In October, Immergut wrote to Nelson reassuring him that the FBI would not target terrorism suspects' lawyers without warrants and, even then, only "under the most exceptional circumstances," because the government takes attorney-client relationships "extremely seriously." Nelson nevertheless filed requests, under the Freedom of Information Act, with the NSA. The agency's director of policy, Louis Giles, wrote back, saying, "The fact of the existence or nonexistence of responsive records is a currently and properly classified matter."

"Maximum speed." For the FBI, the very mention of the term "black-bag jobs" prompts a bad case of the heebie-jeebies. In 1975 and 1976, an investigative committee led by then Sen. Frank Church documented how the FBI engaged in broad surveillance of private citizens and members of antiwar and civil rights groups, as well as Martin Luther King Jr. The committee's hearings and the executive-branch abuses that were documented in the Watergate investigation led to numerous reforms, including passage of the Foreign Intelligence Surveillance Act in 1978. The law created a special secret court tasked with approving electronic wiretaps in espionage and other national security investigations. After the Aldrich Ames spy case, Congress amended FISA to include approval of physical searches. After 9/11, the law was further amended to allow investigators to place wiretaps or conduct physical searches without notifying the court for 72 hours and to obtain "roving" wiretaps to allow investigators to tap multiple cellphones.

In justifying the NSA's warrantless surveillance program, Gonzales has argued that the review process required for a FISA warrant is too cumbersome for a program that is of "a military nature" and that requires "maximum speed and agility to achieve early warning."

White House lawyers, in particular, Vice President Cheney's counsel David Addington (who is now Cheney's chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials. Mueller, backed by Comey, resisted the administration's efforts. "The White House was putting pressure on Mueller to broadly make cases with the intelligence," says one official. "But he did not want to use it as a basis for any affidavit in any court." Comey declined numerous requests for comment. Sources say Mueller and his general counsel, Valerie Caproni, continue to remain troubled by the domestic spying program. Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."

Mueller has been criticized by some agents for being too close to the White House. His predecessor, Louis Freeh, made his break publicly from President Clinton, even returning his White House security access badge. Until recently, Mueller reported to the White House daily to brief Bush and Cheney. But Mueller has not shied away from making tough decisions. He refused to allow FBI agents to participate in CIA and Defense Department interviews of high-value prisoners because of the administration's use of aggressive interrogation techniques. In Iraq and at the Pentagon-run camp for terrorism suspects at Guantánamo Bay, Cuba, it has been FBI agents who have called attention to what they viewed as abuse of detainees.

It is unclear how much resistance from the FBI the White House and the Justice Department will be willing to brook. What is clear, however, is the extraordinary extent to which officials in both places inject themselves in the bureau's operations. In late 2004, President Bush asked then FBI Deputy Director Bruce Gebhardt, filling in for Mueller during the daily White House briefings, minute details about a suspected terrorism threat in Kansas. "Don't worry, Mr. President," responded Gebhardt, straight-faced. "We have Kansas surrounded."

Men like John Buchanan Floyd, Secretary of War in 1860, whose arguably treasonable acts armed an insurrection against the Constitution he had sworn to protect. Or Woodrow Wilson, possessed of messianic ego and pathological dishonesty, who fed American youth into the furnace of a senseless war even as he rammed through a supine Congress a law making criticism of himself punishable for up to ten years. Or Donald Rumsfeld, a disastrously incompetent successor to John Floyd Buchanan's portfolio: a man who arrogantly and inflexibly defends the quagmire in Iraq because it got rid of the supposed Devil Incarnate Saddam Hussein, even as he feigns amnesia regarding his 1980s diplomatic mission to assure Saddam of U.S. support.

Where, indeed, do we get such men? Why do they always seem to choke the upper levels of government like kudzu on a Georgia hillside? What is the structural morphology of human society that ordains such creatures shall insert themselves into the body politic and determine its fate?

The latest example of such men--that is, men whose relation to their country is that of a tapeworm to the large intestine--comes to us courtesy of a conference on the Vietnam War held by the John F. Kennedy Library on 11 March 2006.

Among the array of self-justifying participants, the choicest quote was offered by former Chief of Staff to President Nixon and later Secretary of State Alexander Haig. He said that military leaders in Iraq are repeating a mistake made in Vietnam by not applying the full force of the military to win the war.

"Every asset of the nation must be applied to the conflict to bring about a quick and successful outcome, or don't do it," he said. "We're in the midst of another struggle where it appears to me we haven't learned very much."

Haig, whose swansong in public office was a borderline hysterical (and unconstitutional) statement that he was "in charge" after the attempted assassination of President Reagan, made a sententious declaration at the Kennedy Library that sounded reasonable--until one subjects it to a moment's analysis. Notice that once the decision for war is made according to the Haig formula, every asset of the nation should be brought to bear. But who makes the decision for war? Is it a wise one? Is it even an honest one? A skeptic would suggest that the August 1964 Gulf of Tonkin Incident was a fraud, as was the declaration that Iraq possessed weapons of mass destruction.

With his silence, Haig implies that Americans are supposed to give a pass to "leaders" who lie the country into war, so long as those leaders direct it like berserkers. Is it the duty of Americans only to make every sacrifice necessary (and with a GDP of over $13 trillion, there are a lot of assets to be sacrificed; unfortunately they involve our children's standard of living), and never to question the rationale and the principle behind the war?

Haig does not expatiate on that question. Neither does he expound on precisely what it means to apply every asset. Would that mean fire-bombing? Nuclear weapons? Poison gas? These have been military means from time to time. Apparently the 57,000 U.S. military and up to two million Vietnamese deaths were not, in Haig's mind, a sign of serious warmaking.

Really? The United States dropped more bombs on Southeast Asia than in all the theaters of war in World War II. The basso profundo roar of a B-52 arc light mission shook the earth as it rent eardrums and pulped the internal organs of those military or civilians unfortunate enough to be in the immediate vicinity. Quang Tri Province may have been the most blasted and bombed real estate in the history of war.

Millions of acres of coastal mangrove forest (protecting the shore from typhoons and anchoring the way of life of the local peasantry) were wiped out. The Agent Orange defoliation campaign was a lasting success, as the Vietnamese population's scientifically interesting genetic mutations can attest even unto the present day. [2]

For an impressionistic portrait of a mere sideshow of the Vietnam War, we quote at length Simon Jenkins in the Times of London [3]:

"The bombing of Laos ranks among the most obscene acts of war. It was wanton destruction, power without restraint divorced from the purpose of battle, which is to take and hold territory. . . . Like medieval armies salting fields and poisoning wells, modern air forces leave behind them weapons which they know will sprout death for decades to come.

"By the time Nixon and Kissinger sent the Air Force's 'strategic' B52s to the Plain of Jars in 1970--against the pleading of local commanders--the Vietnam War was lost. But punitive bombing exacted a terrible revenge on Laos, as on Cambodia to the south. Laos suffered a monsoon of destruction, with a peak of 500 sorties a day. The B52s used napalm, defoliants and weapons which, on any definition, were 'chemical.' They bombed the plain's neolithic jars, like bombing Stonehenge. At night they hosed anything that moved with cannon."

What was the physical effect of the bombing?

"The beautiful plain, in reality a long valley flanked by high karst mountains, is still a morass of craters, each containing unknown horrors. Its settlements were more blasted than the Somme, more flattened than Dresden. The 500-year-old provincial capital of Xiang Khouang saw its temples reduced to dustclouds by B52s, described afterwards as 'looking like Hiroshima.' Nobody knows how many people died. The only memorial I saw was to the 320 villagers of Tham Piu, forced from their homes into a cave, where a direct hit from a T28 rocket incinerated them."

And more than three decades on, the dying persists:

"Still the war continues, killing and maiming hundreds. Every other day, someone treads on a bomb, plays with it or hits it with a hoe or a fishing line. Instantly the years roll back and blood and guts are everywhere. There are far too many bombs ever to be cleared."

This is the war Al Haig thinks the government, which succored his bank account, fought with one arm tied behind its back. This is the war our resident wise man says the government conducted with a blameworthy excess of moral scruple.

Where indeed, in which circle of hell, do we get such men?

Werther is the pen name of a Northern Virginia-based defense analyst

ROBERT MCCLELLAND: It shows that the Australian people are very concerned that we're going to be sucked along into a civil war situation in Iraq, and certainly that could happen if we don't precisely define what our mission is and what the benchmarks for achieving that mission are. So far the Government's failed to do that.

GILLIAN BRADFORD: The Prime Minister has of course maintained that Australians shouldn't cut and run. Isn't he right to say that we've got to stay there as long as the Iraqis need us?

ROBERT MCCLELLAND: Well, again, that open-ended, and we say open chequebook commitment is unconditional, and for instance there's been no conditions attached regarding the appropriate conduct of the Iraqi regime itself.

Certainly one ministry appears to be tolerating, if not sponsoring, its own sectarian violence and payback, and that is something which can only aggravate the civil disquiet and the potential for, indeed, civil war.

GILLIAN BRADFORD: So are you saying Australia's government needs to place a lot more pressure on the Iraqi Government to get its own house in order?

ROBERT MCCLELLAND: Very much so. I mean, this open-ended and open chequebook commitment is directly contrary to that objective.

I mean, we are entitled to know as Australians, and certainly they must be told, look, this is what we're intending to do, we're intending to train x-thousand number of members of the security force, supervise or protect the Japanese in respect of this particular scope of works.

But after that point in time, the time has come for you to have your own house in order, to put aside this sectarian rivalry, appropriate compromise where necessary to form a viable government and take responsibility for your own security.

GILLIAN BRADFORD: What difference do you think it would make to the security situation in Iraq if Australia did pack up and leave?

ROBERT MCCLELLAND: In one sense we've completed our objective, one would think, in terms of training, I think it's about two battalions of members of their security forces and, from my understanding, assisted the Japanese in terms of protecting them while they complete their existing scope of works.

I mean, April or May, one would think after the current rotation would be an appropriate time to leave.

GILLIAN BRADFORD: So what do you say is a better use of Australian troops?

ROBERT MCCLELLAND: Well, we've clearly got, and Condoleezza Rice confirmed last week on our own doorstep, our own backyard is a particularly dangerous place in terms of international terrorism.

And the irony of it is, that is where we can be most effective in the international fight against terrorism, because that's where we've got our geographic, our historic and diplomatic ties more closely than any other nation in the world, and where we can be most effective in assisting the United States in terms of our Australian-United States alliance, and the international community, to combat international terrorism.

GILLIAN BRADFORD: But where specifically are you saying those troops could go? It's not as though we can just drop them into Indonesia uninvited.

ROBERT MCCLELLAND: Well it's, it's both a question of troops, but it's also a question of resources. For instance, we've spent $1.2 billion on the war in Iraq to date, and that's more than we spend each year on the entire Australian Federal Police budget.

There's obviously a lot that can be done in South East Asia to assist them with policing activities, with intelligence activities, but indeed I think it's being explored and should be explored, actually supporting the Philippines Government in terms of the area in southern Philippines where terrorism is rife.

Certainly, several years ago, the United States assisted that government with several thousand troops, and these are things where Australia obviously could be exploring.

ELEANOR HALL: Labor's Defence Spokesman Robert McClelland, speaking to Gillian Bradford.