Friday, April 01, 2005

U.S. Report Says Al-Qaeda Had Capacity for `Agent X' Bio-Weapon

March 31 (Bloomberg) -- Al-Qaeda had developed an ``extensive, well-organized'' biological weapons program before the war in Afghanistan and had the capacity to produce a ``virulent'' germ codenamed ``Agent X,'' a U.S. presidential commission reported.

Before the U.S. started the war against terrorism at the end of 2001, intelligence agencies couldn't determine how successful Osama bin Laden's group had been in developing weapons with substances including ``botulinum toxic and toxins obtained from venomous animals,'' according to the 600-page report the commission released today.

The agencies also didn't know whether al-Qaeda acquired a ``far more dangerous strain'' of biological material that the report, citing security concerns, identifies only as ``Agent X.'' After the U.S. overthrew Afghanistan's Taliban government, research found the terrorist group had made more progress than known and ``had probably succeeded in isolating cultures of Agent X.''

``Reporting supports the hypothesis that al-Qaeda had acquired several biological agents as early as 1999, and had the necessary equipment to enable limited, basic production of Agent X,'' the report said.

The report doesn't indicate whether the terror group produced ``Agent X'' for use as a weapon.

The report's finding on al-Qaeda's biological weapons efforts illustrates how incomplete U.S. intelligence was on the capabilities of an enemy that sought to harm vast numbers of civilians. One of the report's recommendations is for the government to focus more on biological terrorism.

Ricin, Salmonella and Anthrax

The co-chairmen of the commission, senior U.S. appellate Judge Laurence Silberman and former Virginia Senator Charles Robb, declined in a press conference to provide further information on Agent X. ``What you have in the report is the extent of what we can discuss with respect to Agent X,'' Robb said.

News reports in the months after the U.S. ousted the Taliban regime from Afghanistan identified several of al-Qaeda's possible germ-warfare pursuits including ricin, salmonella and anthrax. Today's report cites documents found at an Afghan training camp that included ``scientific notes pertaining to Agent X.''

``It's probably 99 percent likely that it's a bacterial agent,'' said Jonathan Tucker, a senior research fellow at the Center for Nonproliferation Studies in Washington. Tucker, who studies biological and chemical weapons issues, said Agent X probably isn't a virus because ``it's more difficult to cultivate.''

`Technical Know-How'

Al-Qaeda's skills are rudimentary and creating a viral agent requires lot of ``technical know-how,'' he said. Tucker speculated that Agent X is an anthrax bacterium or the bacterium that produces botulinum toxin. He couldn't rule out a number of other agents such as salmonella.

Anthony Cordesman, a senior fellow for strategic assessment at the Center for Strategic and International Studies in Washington, said he has a ``pretty good idea'' what Agent X might be. ``I'm not prepared to discuss it'' because the commission kept it classified, he said.

The disclosures on ``Agent X'' are included in a broader report analyzing U.S. intelligence failures since the Sept. 11 attacks. The report says U.S. intelligence was ``dead wrong'' about the military threat posed by Saddam Hussein's Iraq and knows ``disturbingly little'' about the ability of terrorists to mount biological, chemical or nuclear attacks.

The commission, which called for overhauling U.S. spy agencies, said a ``major intelligence failure'' by the Central Intelligence Agency and other agencies misled President George W. Bush into believing Iraq had stockpiled chemical and biological weapons and planned to produce nuclear weapons. The U.S. invaded Iraq on March 19, 2003.
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Thursday, March 31, 2005

Citizenship Up for Grabs: The Supreme Court and Immigration

The Constitution does not constitute us as ‘Platonic Guardians’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,’ or ‘common sense.’ ... We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role.

— Chief Justice Warren Burger1

If there is one area of law that should be universally understood as being largely outside the purview
of the Supreme Court’s social engineering reach, it is immigration. Article I, Section 8, of the Constitution states that Congress shall have the power to “establish an uniform Rule of Naturalization.”2

That, however, is not how events have transpired. For the last several decades, the Supreme Court has effectively trampled on Congress’s constitutionally mandated, separate, and exclusive power and taken upon itself the task of rewriting America’s immigration laws. The Court has abused its limited authority and has become, effectively, the architect of the rules governing not only how immigrants enter and remain in America, but whether those immigrants can avail themselves of social benefits that states and even Congress have sought to limit to U.S. citizens.

Thanks to succeeding Supreme Courts, illegal immigration—not legal immigrants but aliens who have broken U.S. law to enter this country—are entitled to a public school education at the U.S. taxpayers’ expense. The Court has also ruled that despite laws to the contrary, noncitizens who are legally in the U.S. can qualify for welfare, can seek tuition assistance to attend colleges and universities, and can take competitive civil service jobs and practice law.

According to the Federation for American Immigration Reform (FAIR), Arizona spends $1.3 billion each year on illegal immigrants.3 The same FAIR study reported that every Arizonan essentially pays a $700 annual tax to support the direct costs of illegal immigration. The New York Times reported in 2002 that “a wave of immigrants in the last 10 years, particularly in rural areas far from traditional immigration hubs, has left school districts across the country desperately short of people qualified to teach English.”4 In fact, the number of students who have limited English skills has doubled to approximately five million in the past ten years.5 Educating illegal immigrants in the public schools costs the states at least $7.4 billion annually, according to FAIR.6 California alone spends an estimated $2.2 billion annually to educate illegal immigrant children.7 And the Washington Times reported that hospitals near the U.S.-Mexican border spent, in 2000, almost $190 million to treat illegal aliens and another $113 million in ambulances and follow-up fees.8

Before American independence, each of the thirteen colonies developed its own immigration policies. Most of these policies were geared toward encouraging immigration from Europe to help alleviate severe labor shortages throughout the vast expanse of the colonial territories.9 Land grants and exemptions from taxes were popular enticements to immigrants to settle in the New World. However, most of the colonies also had laws in place to discourage certain types of immigrants—specifically Roman Catholics.10 Many of the colonies levied head taxes on ship captains for any Catholic they brought ashore. Certain colonies offered land grants and tax benefits only to Protestants.11 As a result, the majority of the early immigrants came from Protestant England and Germany.

After 1776, the new Congress did not preempt the states’ existing immigration and naturalization policies.12 The only modification to the status quo came in Article IV of the Articles of Confederation (the forerunner to the Constitution), which provided that the citizens of each state were given the same privileges and immunities as citizens of every other state. But each state retained its own naturalization and immigration laws and standards. This arrangement created a de facto briar patch of policies and practices that inhibited commerce and limited America’s potential role on the world stage. The problem was rectified at the Constitutional Convention in 1787. Article I, Section 8, of the new constitution gave Congress the power “To establish an uniform Rule of Naturalization.”13

The noted nineteenth-century associate justice of the Supreme Court and constitutional scholar Joseph Story spoke eloquently of the need for congressional oversight and exclusive jurisdiction over immigration:

The power of naturalization is, with great propriety, confided to Congress, since, if left to the States, they might naturalize foreigners upon very different, and even upon opposite systems; and, as the citizens of all the States, have common privileges in all, it would thus be in the power of any one State to defeat the wholesome policy of all the others in regard to this most important subject. Congress alone can have the power to pass uniform laws, obligatory on all the States; and thus to adopt a system, which shall secure all of them against any dangerous results from the indiscriminate admission of foreigners to the right of citizenship upon their first landing on our shores. And, accordingly, this power is exclusive to Congress.14

The first effort to control immigration and naturalization came with the Naturalization Act of 1790, when Congress set the residency requirement for U.S. citizenship at two years. In 1795, the requirement was increased to five years. The Alien and Sedition Acts of 1798 were dramatic attempts by Congress, then controlled by the Federalist Party of John Adams and Alexander Hamilton, to address both a national security threat and a political challenge to the Federalists’ power.15 The first was the imminent threat of war with France and the second was the trend of new immigrants to ally with the Republican Party headed by Thomas Jefferson. Among the many things these acts did was criminalize criticism of the federal government and increase the time an immigrant had to live in the United States before becoming a citizen from five to fourteen years. They also provided for the deportation of aliens from “enemy” states and allowed the president to imprison enemy aliens during wartime.16

When Jefferson won the presidency and his party took control of both houses of Congress in 1800, the Alien and Sedition Acts were repealed. Congress also returned the residency requirement for U.S. citizenship to five years. Beyond these actions, no real effort was made by Congress to limit immigration in this country until 1875, when Congress passed the first immigration act that restricted entry of aliens to the United States.17 The act prohibited immigration by slaves, prostitutes, and Chinese “coolies.”18 Later laws imposed temporary or permanent restrictions on entry by Chinese emigrants and other groups.

Congressional legislation has repeatedly, over the last two centuries, added, modified, or removed the residency, gender, race, and age requirements to become a U.S. citizen. The Naturalization Act of 1855, for example, opened U.S. citizenship to immigrant women who married a citizen or whose husband became naturalized.19

More recently, in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which gave immigration officers the authority to summarily deport an alien if the officer determines that the alien has engaged in fraud or misrepresentation, or that the alien does not possess valid documents.20 It also delegated to the attorney general—not to the Supreme Court—sole authority to naturalize individuals. Congress specifically stated in the IIRIRA that courts could no longer review an attorney general’s decision to remove an alien “on the basis of most criminal convictions.”21

Congress’s rationale for keeping naturalization an executive branch function is that deportation hearings do not determine whether an alien is guilty of any crime. By simply kicking someone out of our country, the federal government is not, in a legal sense, punishing that person.

Unfortunately, while recognizing in some cases Congress’s basic authority to write immigration law, a majority of justices on the Supreme Court have on several occasions used two constitutional provisions to insert the Court’s institutional nose under the immigration tent. The Court discovered that the equal protection and due process clauses in the Fifth22 and Fourteenth23 Amendments granted the judiciary all of the authority it will ever need to rewrite America’s immigration laws.

However, the Supreme Court has chosen in successive decisions to extend the premise of equal protection and due process to include equal access to social benefits as well. In fact, in Graham v. Richardson,24 a 1971 case, the Court said “this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’”25

This wasn’t always the case. The Court, particularly in the years leading up to World War I, recognized the importance of distinguishing between citizens and noncitizens and in making and managing public policy. In 1915, in Heim v. McCall, the Supreme Court decided in favor of New York’s authority to show preference in hiring citizens for transit authority projects. Justice Joseph McKenna wrote:

The basic principle of the decision of the Court of Appeals was that the State is a recognized unit and those who are not citizens of it are not members of it. Thus recognized it is a body corporate and, like any other body corporate, it may enter into contracts and hold and dispose of property. In doing this, it acts through agencies of government. These agencies, when contracting for the State, or spending the State’s moneys, are trustees for the people of the State. ... And it has hence decided that in the control of such agencies and the expenditures of such moneys it could prefer its own citizens to aliens without incurring the condemnation of the National or the state constitution.26

In Heim, in fact, the Court specifically rejected the argument that the Fourteenth Amendment precluded states from discriminating against non-citizens in the distribution of public benefits. “[I]t belongs to the State, as the guardian of its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities.”27

In other words, the Supreme Court of 1915 deferred to the judgment of the state governments to determine how public funds should be distributed—exactly as the framers of the constitution intended.

In 1927, in Ohio ex rel. Clarke v. Deckebach Auditor, the Court reinforced the Heim decision, specifically rejecting the equal protection argument advanced under the Fourteenth Amendment, and rejected the premise that the Court should exercise unfounded authority and write new law through its opinions.28 An 1815 treaty between the United States and Britain guaranteed that “the merchants and traders of each nation...shall enjoy the most complete protection and security for their commerce.”29 A merchant in Cincinnati, who was a resident alien and a subject of the British Empire, was denied a license to operate a pool hall because city ordinances required that such licenses be issued only to U.S. citizens. Justice Harlan Stone, in a unanimous decision, stated:

Some latitude must be allowed for the legislative appraisement of local conditions...and for the legislative choice of methods for controlling an apprehended evil. It was competent for the city to make such a choice, not shown to be irrational, by excluding from the conduct of business an entire class rather than its objectionable members selected by more empirical methods.30

But the Court, in a number of cases over the last four decades, has determined not only that aliens—even illegal aliens—are “persons” as defined in the Fifth and Fourteenth Amendments, but also that their status is increasingly indistinguishable from that of citizens. So while the Constitution gives to Congress the sole authority to determine how many immigrants may enter the country, how immigrants can become citizens of the United States, and whether those immigrants should be able to avail themselves of the benefits of U.S. citizenship, the Court has chosen on several occasions to ignore the express direction of the founders and usurp that authority for itself.

The first of these cases was Graham v. Richardson, which involved the rules established by two states for aliens to receive welfare benefits.31 In the 1960s, Pennsylvania and Arizona required that permanent resident aliens in those states meet minimum residency requirements in order to receive certain welfare benefits. Arizona, for example, required that to qualify for welfare a resident alien must have lived in the state for fifteen years.32 State officials were concerned that, without minimum residency requirements, aliens would move from state to state depending on the benefits they could receive.33

In 1969, Carmen Richardson, a sixty-four-year-old Mexican native who had legally emigrated to Arizona thirteen years before, became disabled. She filed for welfare benefits but was turned down because she did not meet the state’s fifteen-year residency requirement.34 Richardson subsequently filed suit in federal court in Arizona, claiming that the residency requirement violated the equal protection clause of the Fourteenth Amendment and her constitutionally protected right to travel. Richardson’s case was joined with other cases in Arizona and Pennsylvania and heard by the U.S. Supreme Court after lower courts accepted her arguments and ruled in her favor.35

In rejecting the established principle that states have a right and a responsibility to husband their limited resources for their citizens and long-standing legal residents, Justice Harry Blackmun wrote:

We agree with the three-judge court in the Pennsylvania case that the justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces...aliens may live within a state for many years, work in the state and contribute to the economic growth of the state.... There can be no “special public interest” in tax revenues to which aliens have contributed on an equal basis with the residents of the state.... Accordingly, we hold that a state statute that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided in the United States for a specified number of years violate the Equal Protection Clause.36

Blackmun also invoked a test for courts to use to decide whether a citizenship requirement for benefits from a state or federal agency is permissible. “The Court’s decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial security.”37 In other words, lawmakers could only use noncitizenship if they could demonstrate a compelling government interest in doing so—a hurdle that would be nearly impossible to overcome.

The real question the Court should have addressed—and the one that would have profound constitutional implications—is: Who gets to determine whether aliens are eligible for certain benefits? Who sets policy? Clearly, if there is a desire to create a national standard for eligibility of federal programs, Congress should make that decision. If the program is exclusive to a particular state, the relevant state government should make that decision. The Court simply abrogated the explicit and inherent authority of those elected legislative bodies and imposed its own preference.

The Court also found that the Civil Rights Act of 1866, which guaranteed equal rights to every citizen in every state, included a protected right to travel among the states.38 The Court ruled that creating residency requirements for aliens would inhibit their right to travel. Again, the Court simply created a new constitutional right—the right to travel—and then extended that “right” to aliens.

In 1976, the Supreme Court ruled in the case Hampton v. Mow Sun Wong that citizenship was an unconstitutional requisite to holding a government job.39 In 1970, five resident alien civil service employees were dismissed from their jobs in the Post Office,40 the Heath, Education, and Welfare Department,41 and other federal agencies because it was discovered that they were not U.S. citizens as required by Civil Service Commission regulations. The five sued the commission in federal court.

The Supreme Court ruled unanimously that the citizenship requirement violated the due process and equal protection clauses and legal aliens’ right to liberty. Justice John Paul Stevens wrote:

The rule enforced by the Commission has its impact on an identifiable class of persons who, entirely apart from the rule itself, are already subject to disadvantages not shared by the remainder of the community. Aliens are not entitled to vote and, as alleged in the complaint, are often handicapped by a lack of familiarity with our language and customs. The added disadvantage resulting from the enforcement of the rule—ineligibility for employment in a major sector of the economy—is of sufficient significance to be characterized as a deprivation of an interest in liberty.... By reason of the Fifth Amendment, such a deprivation must be accompanied by due process....It follows that some judicial scrutiny of the deprivation is mandated by the Constitution.42

The unanimous vote of the Court notwithstanding, the reasoning behind the Hampton decision is another example of the Court reaching into an area the Constitution reserves for Congress—and that Congress in successive immigration and naturalization acts delegated to the executive branch. The legislative history cited—yet ignored—by Stevens in the Hampton decision even demonstrated that it was the intention of Congress that civil service jobs be reserved for U.S. citizens or, at least, to aliens who had pledged permanent allegiance to the country.43

The Court had to manufacture the premise that denying resident aliens a civil service job somehow infringed on their liberty to obtain a job at all, and that there was no valid reason for ensuring that government jobs go primarily to U.S. citizens.

In 1973, in Sugarman v. Dougall, New York’s civil service law included the requirement that all state civil servants be U.S. citizens.44 Four low-level state employees, who were resident aliens, were dismissed from their positions once their citizenship status became known.45 They then sued the state, claiming that the statute violated their Fourteenth Amendment due process rights.46

In an 8-1 decision (only Justice William Renquist dissented) the Supreme Court built on the Graham and Hampton decisions and continued to reverse the position it took in the 1915 cases that states have the right to distinguish between citizens and noncitizens in their public expenditures. In Sugarman, the Court found that while states could indeed differentiate between citizens and noncitizens in certain types of jobs, those jobs had to be very narrowly defined and limited specifically to the functions of the government—such as law enforcement and senior policymaking positions. Citizenship was not a material requirement for other civil service positions, so requiring it for those positions violated an immigrant’s Fourteenth Amendment rights.47

Renquist, however, offered a brilliant response in his solitary dissent:

The Court, by holding…that a citizen-alien classification is ‘suspect’ in the eyes of our Constitution, fails to mention, let alone rationalize, the fact that the Constitution itself recognizes a basic difference between citizens and aliens. That distinction is constitutionally important in no less than 11 instances in a political document noted for its brevity…. Not only do the numerous classifications on the basis of citizenship that are set forth in the Constitution cut against both the analysis used and the results reached by the Court in these cases; the very Amendment which the Court reads to prohibit classifications based on citizenship establishes the very distinction which the Court now condemns as ‘suspect.’ 48

The 1982 Plyler v. Doe decision is perhaps the most egregious of the Court’s immigration rulings.49 In the 1960s and 1970s, a rising tide of illegal immigrants crossed the border from Mexico into Texas to take advantage of the better economic climate and quality of life in the United States. By 1975, the financial strain of the influx had started to choke the already crowded school systems in Texas border towns. In response, Texas enacted a new law concerning children not legally admitted to the United States that allowed local school districts to deny their enrollment and withheld from local school districts state funds to educate these children.50

Numerous lawsuits were brought on behalf of several children challenging the new law, which were consolidated in the case Plyler v. Doe. In a 5-4 decision, Justice William Brennan, writing for the majority, went so far as to extend the term “person” in the Fourteenth Amendment to include illegal aliens, by virtue of their physical presence in the United States.51

Moreover, Brennan found that the children of illegal immigrants weren’t responsible for their illegal entry into the country, therefore, “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”52

While the Court recognized that there is no constitutionally enumerated “right” to a free public education, Brennan stated:

[N]either is [a public education] merely some governmental ‘benefit’ indistinguishable from the other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance…. We have recognized the public schools as a most vital civic institution for the preservation of a democratic system of government….And these historic perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.53

But Brennan wasn’t done. When he moved to the question of whether the equal protection clause applied to extending social benefits to illegal aliens, he determined that because Texas had essentially delineated illegal aliens as a distinct “class” of people, they must be treated equally with every other person in the state. Not to do so in this instance—the provision of a free public education—would violate the equal protection clause.54 In Plyler, the Court decided that any conglomeration of people, regardless of the reason for their classification under law, had to be treated identically with every other class of people.

Brennan also said that irrespective of the financial burden imposed on the community or the state by illegal aliens, the cost was not sufficient to justify preventing illegal immigrants from availing themselves of a free public education.55

Chief Justice Warren Burger, writing the dissenting opinion for himself and Justices Byron White and Rehnquist, summed up the true nature of the Court’s action:

The Court makes no attempt to disguise that it is acting to make up for Congress’s lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.56

The Supreme Court has reached into other areas to find rights for immigrants that the Constitution, Congress, and the executive branch never intended. In 1973, in In Re Griffiths, the Court ruled that a state could not deny noncitizens the right to take the bar exam and become licensed, practicing attorneys—again thanks to the hidden meaning the Court found in the equal protection clause.57

In 1977, in Nyquist v. Mauclet, the Court decided by a 5-4 vote that it was unconstitutional for New York to require resident aliens to at least apply for U.S. citizenship before becoming eligible for financial aid for education.58

The Court, as a practical matter, is in no position to substitute its policy objectives for that of a legislature or Congress. It sits as an adjudicative body, insulated from the kind of give-and-take that occurs between the citizenry and their representatives. It has no responsibility for the kind of balancing act elected officials must undertake in weighing public priorities.

September 11, 2001, underscored that we need greater government scrutiny over our borders and immigration. Congress’s role in drafting and the executive’s authority in enforcing immigration law have never been more important, and the judiciary’s interference with these constitutional roles has never been more dangerous.


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Endnotes
1. Plyler v. Doe, 457 U.S. 202,242 (1982).

2. U.S. Constitution Article I, § 8.

3. Don Collins, “Illegal Immigration is ravaging Arizona,” Pittsburgh Tribune-Review, June 22, 2004.http://www.pittsburghlive.com/x/tribune-review/opinion/columnists/guests/print_199848.html.

4. Yilu Zhao, “Wave of Pupils Lacking English Strains Schools,” The New York Times, August 5, 2002.

5. Ibid.

6. Stephen Dinan, “States Pay $7.4 billion to Educate Illegals; Report Notes Drain on U.S. Children,” Washington Times, August 21, 2003.

7. Ibid.

8. Jerry Seper, “Report Ties Health Care Struggles to Immigration; Increase in Uninsured Aliens Seen Straining Hospital Budgets,” Washington Times, February 26, 2004.

9. Immigration Laws 1700-1800, “Colonial Period: Legal Authority over Immigration.” www.oriole.umd.edu.

10. Ibid.

11. Ibid.

12. Immigration and naturalization are the two main classifications of law in this regard. Immigration refers to emigrants from other countries entering the United States. Naturalization concerns the process by which immigrants become citizens of the United States.

13. U.S. Constitution Amendment I, § 8.

14. Joseph Story, Commentaries on the Constitution of the United States, “Power Over Naturalization and Bankruptcy,” § 1098.

15. The term “Alien and Sedition Acts” is commonly used as shorthand for three acts of Congress: The Naturalization Act of 1798, the Aliens Act of 1798, and the Alien Enemy Act of 1798.

16. Ibid.

17. Immigration Act of 1875.

18. Ibid. Coolies were bonded workers from China, India, and other nations in Asia.

19. Naturalization Act of 1855.

20. 8 U.S.C. § 1101 (2000).

21. 8 U.S.C. § 1103 (2000).

22. U.S. Constitution Amendment V. The Fifth Amendment delineated the limitations on the federal government’s power over individuals. In addition to requiring that no person can be deprived of “life, liberty, or property” without due process of law, it provides for the use of a grand jury to indict someone and prohibits double jeopardy and self incrimination. The Fourteenth Amendment imposes similar restrictions on the authority of state governments.

23. U.S. Constitution Amendment XIV. The Fourteenth Amendment, in particular, was written to ensure that state governments did not treat individuals, or groups of individuals, unequally under the law, or that individuals or groups were not treated differently solely because of their race or ethnic heritage. It was not written to guarantee identical treatment for everyone everywhere, nor to provide for equal outcomes under the law for everyone.

24. Graham v. Richardson, 403 U.S. 365 (1971).

25. The Graham decision also cited other cases in which the premise of no distinction between benefits or privileges and rights should be made. These cases include Sherbert v. Verner, 374 U.S. 398 (1963), Shapiro v. Thompson, 394 U.S. 627 (1969), Goldberg v. Kelly, 397 U.S. 254 (1970), and Bell v. Burson, 402 U.S. 535 (1971).

26. Heim v. McCall, 239 U.S. 365 (1971).

27. Ibid., 191.

28. Clarke v. Deckebach, 274 U.S. 392 (1927).

29. Ibid., 395.

30. Ibid., 397.

31. Ibid.

32. Ibid., 367.

33. Graham v. Richardson, 403 U.S. 367.

34. Ibid.

35. Ibid., 368.

36. Ibid., 376.

37. Ibid., 372.

38. 1866 Civil Rights Act, 14 Stat. 27-30, Section 1. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

39. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).

40. In 1971, the Post Office, which was a federal agency, was semi-privatized and became the U.S. Postal Service.

41. In 1979, the federal Department of Health, Education, and Welfare was reorganized into two agencies, the Department of Education and the Department of Health and Human Services.

42. Hampton v. Mow Sun Wong, 426 U.S. at 102-03.

43. Ibid., 106.

44. 413 U.S. 634 (1973).

45. Ibid., 637. The four employees were among approximately 450 employees who actually worked for private sector nonprofit organizations that received funding through a federal agency, the United States Office of Economic Opportunity. In 1970, federal funding for those organizations was stopped and the nonprofits absorbed by a New York City agency, the Manpower Career and Development Agency (MCDA). When the jobs were moved under the city, the state’s civil service requirements became applicable and the noncitizen employees were dismissed.

46. Ibid.

47. Ibid., 639-40.

48. Ibid., 651.

49. Plyler v. Doe, 457 U.S. 202 (1982).

50. Ibid., 205.

51. Ibid., 210.

52. Ibid., 220.

53. Ibid., 221.

54. Ibid., 222.

55. Ibid., 229.

56. Ibid., 242-43.

57. In Re Griffiths, 413 U.S. 717 (1973).

58. Nyquist v. Mauclet, 432 U.S. 1 (1977).


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Mark R. Levin is the president of Landmark Legal Foundation, host of a number-one rated talk radio program on WABC in New York, and a contributing editor for National Review Online. During the Reagan Administration, he was chief of staff to the Attorney General, deputy solicitor at the Department of the Interior, deputy assistant secretary at the Department of Education, and associate director of Presidential Personnel. This Backgrounder is drawn from his new book, Men in Black: How the Supreme Court Is Destroying America.
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Wednesday, March 30, 2005

Saudi Cleric:"Jews and Christians Lie When They Say They Are the Sons of God"

Special Dispatch - Saudi Arabia/Jihad & Terrorism Studies Project
March 30, 2005
No. 886

Following Reports by MEMRITV: Saudi Cleric Retracts Antisemitic Statements

To view this Special Dispatch in HTML, visit http://www.memri.org/bin/opener_latest.cgi?ID=SD88605


As part of the official Saudi government TV coverage of Saudi Arabia's counter-terrorism conference in Riyadh, February 5 - February 8th, Saudi Sheikh 'Aed Al-Qarni made statements accusing the Jews and the U.S. of using terrorism. Later, after his statements were translated by MEMRI, Al-Qarni retracted these statements on Saudi TV.

Subsequently, the London Arabic-language daily Al-Sharq Al-Awsat reported on a campaign "spearheaded by MEMRI, against the Saudi Muslim cleric 'Aed Al-Qarni." According to the paper, "MEMRI was also behind another campaign intended to pressure the U.S. administration not to participate in the counter-terrorism conference."(1)

The following are Sheikh Al-Qarni's statements and his retraction. They are followed by other statements by Al-Qarni and a Saudi columnist's view on the matter:


"The First Ones to Kill and Use Terrorism in the World Were the Jews"

In the February 7, 2005 interview on Saudi TV, Al-Qarni said: "The first ones to kill and use terrorism in the world were the Jews. Let me quote Henry Manjiro [sic] in his book on the history of the U.S. Abraham Lincoln ... who freed their slaves, was killed in an act of terror. Kennedy was killed in an act of terror. And the list goes on. They began to act this way 200 years before us. Why don't they go back to their history? The terror attack on the building in Oklahoma was an American act of terror, as you know. The blowing up of the buildings in Washington, opposite the Pentagon, was an American terror attack [sic].

"There are world Zionist circles that want to create illegitimate constitutions for us. According to these constitutions, the killing of Palestinian and Iraqi civilians is permitted or not controversial. However, when one of them [i.e. the Zionists] is targeted in revenge, this is considered terror, and the entire world has to denounce it. It is as if killing them [i.e. the Zionists] is forbidden, while the lives of Muslims are fair game. We reject this unjust distinction. We object to any illegitimate fighting...

"But we won't accept the Zionist rule, or that of the White House - which is, in fact, a Black House. We say we have a religion, and we want to make the world understand this religion. We must rely on the divine source of authority in this matter, and not on what people understand, or on the declaration that 'Whoever is not with us is against us.' Whoever is not with Allah, His people, and His Messenger, is against goodness, virtue and truth."(2)


Al-Qarni's Retraction: "We Must Protect Them in Our Countries as We Protect Ourselves"

In response to the publication of his statements in the MEMRI report and the ensuing criticism of Saudi Arabia, Al-Qarni told Al-Sharq Al-Awsat on February 26, 2005, that he had included no calls for violence or for harming Jews in his sermons. He added that his condemnation had been directed toward the Zionist entity in Israel, which fights Muslims and harms Palestinians in their own land.

Nonetheless, he noted: "The Jews and the Christians have the right to conduct trade in Muslim countries and to coexist [with Muslims]." To back this up, Al-Qarni quoted from the Koran [60:8]: "Allah forbids you not, regarding those who do not fight you for [your] faith and do not drive you out of your homes, from dealing kindly and justly with them: for Allah loves those who are just." He added: "We must protect them in our countries as we protect ourselves."

Al-Qarni denied having said that the Jews were the first to act with violence, stating that they were not, and that other nations preceded them in the use of violence. He said that these accusations were only a few of thousands against Muslims of various ethnicities, and that underlying these claims was a Zionist campaign aimed at distorting the image of Islam.(3)


Editor in Chief of Saudi News: We Need to Create an Organization to Counter MEMRI

Arab News Editor in Chief Khaled Almaeena responded to Al-Qarni's retraction in the English-language Saudi daily Arab News: "...I would like to tell the Sheikh not to worry about what he said. As long as one does not attack another persons religion, it is his or her right to criticize the uncivilized behavior of a people. And uncivilized behavior is a good description of how the Israelis are behaving right now in occupied Palestine...

"These people in MEMRI love to distort the Arab image and try to create a wedge between ordinary Americans and Muslims. They deliberately mistranslate words, misinterpret statements and try to create the idea that our writers and religious leaders have no other purpose than to conduct an anti-Semitic campaign through our media. They have people who listen to them, but MEMRI also has the support of quite a few important and influential officials in Washington ...

"The question is, when an organization such as MEMRI can be informed literally in minutes of what we have done, why do we merely sit, complain, wallow in self-pity and claim that others are out to get us? We need to galvanize our efforts and resources to create our own organizations to contain and expose those false preachers and critics of Muslims and Islam. I would welcome any support toward this effort. Without that, the message of the hatemongers will go unchecked and the messages of MEMRI will remain in circulation...."(4)


MEMRITV Archives on Previous Al-Qarni Interviews

I. "Guiding the Brothers of Apes and Pigs to Islam is Better than Killing Them"

It should be noted that in the past Sheikh 'Aed Al-Qarni has harshly criticized both Jews and Christians and has made strong statements in favor of Jihad. Following are some of his previous statements, as published by MEMRI and which can be found on MEMRITV:

On January 9, 2005, Al-Qarni said on the Saudi religious TV channel, Iqra TV: "The Prophet Muhammad, as is said in the Hadith, sent Ali to the Jews, the brothers of apes and pigs, to fight them. Ali, being so brave and daring, thought he was sent to behead them. The Prophet Muhammad told him that it was better to guide them to the righteous path than to kill them and that the goal of the mission was to draw the Jews to the religion of Islam so they would convert and increase the number of Muslims. Guiding them to heaven is better than slaughtering them.

"By Allah, if you guide a Jew or a Christian to the righteous path it is better than slaughtering one or two thousand of them on the battlefield."(5)


II. "Throats Must Be Slit and Skulls Must Be Shattered. This is the Path to Victory"

On December 26, 2004 Al-Qarni said on Iqra TV: "Allah be praised, [Abd Al-Aziz Al-Rantisi] was killed by the brothers of apes and pigs, the murderers of the prophets. He fulfilled his duty - he and Sheikh Ahmad Yassin, Allah's mercy be upon them. But we Muslims should be rebuked. One billion two hundred million nobodies! We are incapable of taking action, of being useful, of harming the Jews. The most people do today is to verbally protest over the TV channels or to demonstrate. What is the use of this?

"In the story of Joseph there is sacrifice, Jihad, and fear of God. That's what the mujahideen, like Ahmad Yassin and Abd Al-Aziz Al-Rantisi, do. How many doctors are there in the Muslim world today? But Allah honored [Al-Rantisi] by having his blood spilled, and he has become an international issue. People have prayed for him, praised him, and Allah has forgiven him. I pray to Allah that He will make the enemies fall into their own trap and that He will destroy the Jews and their helpers from among the Christians and the Communists, and that He will turn them into the Muslims' spoils.

"I praise Jihad, sacrifice, and resistance against the occupiers in Iraq. We curse them, all of them, every night and pray that Allah will annihilate them, tear them apart, and grant us victory over them...

"The Jihad in Falluja is a source of pride. It is astounding: a city of 250,000 residents opposing what is by their standards a superpower - downing their planes, destroying equipment, slaughtering them, taking them hostage, and proclaiming 'Allah Akhbar' from the mosques, and the worshippers and the preacher cursing them in their prayers, and then come others begging for forgiveness, and requesting dialogue and ceasefire and negotiations. Who can say even one word against this true Jihad against these colonialist occupiers?

"We must sacrifice people like Abd Al-Aziz Al-Rantisi, Ahmad Yassin, and thousands of others. Houses and young men must be sacrificed. Throats must be slit and skulls must be shattered. This is the path to victory, to shahada, and to sacrifice. Oh brothers, the idolatrous Vietnamese, Cambodians, and South Africans... Nations with no calling or divine law make sacrifices - sacrificing people, blood, and souls. All the more so should we, the nation of Islam."(6)


III. "Jews and Christians Lie When They Say They Are the Sons of God"

On December 12, 2004, Al-Qarni said on Iqra TV: "The Jews take pride in something they lie about  the Jews and the Christians. Allah says that the Jews and the Christians say: 'We are the sons of God, and beloved of Him,' and they declare this throughout the world, to modern intellectual streams, to international organizations, and to nations and countries. They say: 'Oh people, we, the Jews and Christians, are the sons of God and beloved of Him. Allah made us His sons.' They are lying, Allah's wrath be upon them.

"If you are truthful, why will Allah burn you in hell for your sins and errors? If you are truthful, and indeed Allah loves you, He would never torture you, because those whom Allah loves, He does not torture. But you are sinners and wrongdoers. You have rejected the messengers and killed the prophets. You will be punished for your lies. You are not prophets or the sons of God."(7)

Endnotes:
(1) Al-Sharq Al-Awsat (London), February 26, 2005.
(2) Channel 1 (Saudi TV), February 7, 2005. http://www.memritv.org/Search.asp?ACT=S9&P1=535 .
(3) Al-Sharq Al-Awsat (London), February 26, 2005.
(4) Arab News (Saudi Arabia), March 8, 2005.
(5) Iqra TV (Saudi Arabia), January 9, 2005. http://www.memritv.org/Search.asp?ACT=S9&P1=474 .
(6) Iqra TV (Saudi Arabia), December 26, 2004. http://www.memritv.org/Search.asp?ACT=S9&P1=445 .
(7) Iqra TV (Saudi Arabia), December 12, 2004. http://www.memritv.org/Search.asp?ACT=S9&P1=413 .



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Terror suspect 'had personal details about British soldier'

By Sean O’Neill
Times of London

A YOUNG Muslim with alleged “extremist leanings” appeared in court yesterday charged with possessing the personal details and home address of a decorated British soldier for a terrorist purpose.

Mohammed Abu Baker Mansha, 21, was arrested last Thursday in a 4am raid on a near-derelict flat on a housing estate in Thamesmead, southeast London.

He was charged under the Terrorism Act on Monday and brought before Bow Street magistrates.

The court was told that police search teams found a range of outdoor equipment, some with possible military uses, and correspondence relating to “missions” overseas.

Mr Mansha, who is bearded and has close-cropped dark hair, was dressed in jeans and a blue-and-white checked shirt with cufflinks.

As he stood in the dock, flanked by two prison officers, he turned to acknowledge a relative in the gallery. Patrick Stevens, for the prosecution, applied for Mr Mansha to be remanded in custody pending further inquiries. He said that the search of the flat had recovered a large amount of material that warranted further examination.

Officers had found military binoculars, full-face balaclavas with eyeholes cut out, a radio scanner and a respirator, four sleeping bags, four pairs of gloves and four pairs of Wellington boots in different sizes.

There were Ordnance Survey maps of the Snowdonia region and route planners for the area.

Mr Stevens said that correspondence found in the flat “appeared to suggest his involvement in what are described as missions abroad”.

He added: “There was also a quantity of material appearing to indicate that extremist leanings can be attributed to Mr Mansha.”

Police had “grave concerns” about the discovery of a cutting from a national newspaper referring to a decorated soldier. The soldier’s details were circled and on a separate piece of paper his home address and personal details had been written out.

Mr Stevens said that he was seeking a custodial remand because the Crown believed that there was a risk that further offences might be committed and that Mr Mansha might fail to appear in court.

He said that Mr Mansha, who was born in Whitechapel, East London, possessed British and Pakistani passports.

No bail application was made and District Judge Daphne Wickham remanded Mr Mansha to appear before the court next week.

Speaking outside court, Sara O’Keeffe, Mr Mansha’s solicitor, said that he strenuously denied all the allegations against him.

She added: “He intends to fight this all the way.”
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Tuesday, March 29, 2005

Defending Terrorism: Interview with Kristine Withers

3/28/2005

By Ryan Mauro
Kristine Withers claims to have been assaulted by the Islamic Thinkers' Society, a group she says is likely tied to Al-Muhajiroun, which is a radical Islamic group that is believed to have worked with Al-Qaeda. The following is our conversation about ongoing threats to her from the group, and charges that have been brought against her by the group.

Ryan Mauro: First of all, Kristine, what got you involved in looking at the activities of these Islamic protesters you are warning about?

Kristine Withers: I noticed a group of Muslim men, demonstrating against the War on Terror and advocating the pro-fundamentalist Islam view, about 6 months after 9/11/01. I could not help notice them because they were demonstrating a block from me, which is also a busy commercial area for the Islamic-Hindu merchants, in an area I frequent because of the stores and transportation (to get to the subway). They had signs showing the 9/11 tragedy and were handing out brochures advocating fundamentalist Islamic. Upon research, based upon their literature, I found out they were connected with the Al-Muhajiroun group. At that time their brochure contained web links to that fundamentalist websites. I notified the NYPD anti terrorist taskforce, and this group disappeared.

Then around late May of 2003 I noticed the same people were out demonstrating again in the same area. They also knew who I was. I again notified the NYPD, and was told they had a permit. I went to my councilmen, and was ignored. Little by little their space grew with more and more signs, Television and stereo equipment. The crowds around them started to grow. I observed them to gain more information, but that let to verbal sparring with them. I admit it was a bad tactic, but I was genuinely offended that the people that were declaring war against my country, and western civilization, were there to recruit potential terrorist.

RM: Can you describe how you've been threatened and in your view, treated unfairly?

KW: My friend and I were walking our dogs, when we heard some loud voices. As we walked the voices became clearer, then we saw the a group of Islamic men demonstration. They had a loud amplifiers, they were about 3 feet tall, that was blaring out something in Arabic. The reason this caught my attention was because the week before, when I spoke to my State Senator, he informed me that they were not permitted to have sound equipment. I gave my dogs to my friend so she could take them home. I crossed the street to call the police, then I went over to the group, to inform them that I believed they were overstepping their permit, because of the sound system and because they were on both sides of the street. As I crossed to them, I observed their placards on the street (typical al-Muhajiroun stuff : US the real terrorist, oppose the war on terror, God hates the US because they have Homosexuals, restoration of the Caliphate, pictures of Abu Gharab, 9/11 pictures saying it was justified, etc..) Anyway I knocked down one of the signs, (the unaltered abu Gharab pictures, which showed naked people), next thing I know I was engaged in a verbal yelling match with them, they started threatening me and knocked me down. During this period (approx.. 20 mins before the police arrived) I turned down the rest of the signs, and held off a growing angry crowd of mad Muslims. They were telling me how wicked America and I was. A
member of the group was also telling me, "we will kill you", and "next time we will get all of NYC". A man punched me in the face, knocking of my glasses. These were not just a group of individuals. These people (that started the demonstration) were men in their 20's who were radicalized, mostly from the Mid-East, who were controlled by one elder man. They had great discipline that you would not see in just a mob. They were also videotaping this whole incident, with the elder man shouting "film this, it will get us more recruits." Any way the police came finally. After a few minutes finding out about the incident, they took me away alone. This even after I informed them that I was assaulted, a fact which was verified by a few witnesses. When I asked the officer why they did not bring the people who assaulted me in, I was told that "since 9/11 we have to bend over backwards for them."

Since that incident I have had other run-ins with them, been assaulted and threatened, but each time the police take me away.

RM: What group was behind the protests and what leads you to suspect them of being tied to radical Islamists?

KW: The group calls itself the The Islamic Thinkers Society. They fly the Al-Muhajiroun, and use Al-Muhajiroun tracts.

RM: And what is so significant about their ties to Al-Muhajiroun?

KW: Al-Muhajiroun is a group which advocates the control of society based on the rule of a Universal Caliphate, and ruled by Islamic law, the shiara. As a member said "we do not seek to coexist with other religions in America, we seek to dominate them". They want to see Islamic rule imposed worldwide. In their propaganda they portray Islam as an ideology, and an alternative to
Democracy. They advocate the advancement of their goal by violence and terrorism. One of their members were a part of the team that conducted the 9/11 attacks. They also advocate the self imposition of Shiara in neighborhoods where they are the majority. This makes for a danger, as happened in Jersey City last week. Where a family of Egyptian Christians were killed by Muslim hit man. Another reason that I find Al-Muhajiroun dangerous is their ability to recruit new adherents, especially among the youth whom they aim their recruitment at. They accomplish this by knowing how to manipulate the system, and take advantage of political correctness. This allows them to recruit openly, while they form a core of true believers in their closed meetings to be used for their Jihad.

RM: Can you explain the reaction of law enforcement to your information?

KW: I cannot explain the reaction of the police, which is what I would describe as apathy and fear. I cannot explain why they would allow a group, which has links to groups which killed fellow officers, to recruit and propagandize our enemies cause. The only logical reasons, in my opinion, would be one of three. First: fear of lawsuits. This precinct (the 115th) was almost sued by a group of Muslims, because they treated the Koran with disrespect when they arrested illegal vendors. Second: political correctness. In New York City, cultural relativism is almost a religion. Each immigrant group has a political base, that exerts pressure on the local politician. These politicians, with the aid of local media, pushes this political line, which affects the actions of the police. I would like to remind you that Queens is number one in Illegal, and legal immigrants in proportion to the general population. Three: Political and Police graft. The local politician, Helen Sears, is beholding to the large indo/Muslim merchants, who are represented by the Jackson Heights Merchants Association. Either way it must be seen as corruption or incompetence. This group has such a clear connection with terrorist groups that to allow them to recruit and operate is clearly collusion. This is especially surprising from the NYPD which experienced an attack by these people.

RM: Do you feel the police have enough evidence to really investigate the group?

KW: I believe that the police the police definitely have the right to investigate this group. This group is analogous to the Nazi's or Japanese recruiting fighters in NYC during WWII. This group calls, through its literature, for the overthrow of the government in favor of a Islamic state. They are trying to spread their Islamic Fundamentalist propaganda, as well as recruit members. They use the cover of religious tolerance to spread their political message.

Recently Shahawar Matin Siraj, 21, a native of Pakistan who lives in Jackson Heights in Queens was accused of plotting to blow up a subway station in NYC, and he was part of the group that was involved with my July 11th incident. Mohammed Junaid Babar was arrested last summer for being a sleeper agent with Al-Qaeda, has links with the Al-Muhajiroun network in Queens. He has admitted his intention to attack America. I do not know if he has direct links with the Islamic Scholars, but I would not doubt it. They are still out there on the weekends, in search of new converts.

RM: Can you tell us about the charges brought against you?
KW: I am charged with inciting a riot, destroying merchandise, resisting arrest, and public disturbance. I can understand the public disturbance, but the other charges are not correct. I was not trying to start a riot, I was trying to shame them away. The merchandise that is in question is their hate filled propaganda, and posters, which I knocked down, but did not destroy. I did not resist arrest, in fact I was just the opposite, I cooperated with the police. They are saying it is a "hate" crime on my part.

I know I will be ok with the authorities. My lawyer met with the DA prosecuting the case, she being in charge of "hate" crimes division in Queens county, NY. My lawyer pointed out the absurdity of trying to prosecute me on a hate crime done to a hate group. She agreed with the premise, but said, rather candidly, she was under pressure from the Islamic community and politicos. We all arrived at an agreement where as I will attend anger management classes, I believe 24 sessions, and a fine. This also includes an order to stay away from them, and a period of probation.

Ryan Mauro is a geopolitical analyst. He began working for Tactical Defense Concepts (www.tdconcepts.com), a maritime-associated security company in 2002. In 2003, Mr. Mauro joined the Northeast Intelligence Network (www.homelandsecurityus.com), which specializes in tracking and assessing terrorist threats. He has appeared on over 20 radio shows and had articles published in over a dozen publications. His book "Death to America: The Unreported Battle of Iraq" is scheduled to be published in the coming months. He publishes his own web site called World Threats. Mr. Mauro may be reached at tdcanalyst@optonline.net


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How a Lone Diplomat Compromised the Hunt for Bin Laden

BY RICHARD MINITER
URL: http://www.nysun.com/article/11208

WASHINGTON - A lone U.S. ambassador compromised America's hunt for Osama bin Laden in Pakistan for more than two years, The New York Sun has learned.

Ambassador Nancy Powell, America's representative in Pakistan, refused to allow the distribution in Pakistan of wanted posters, matchbooks, and other items advertising America's $25 million reward for information leading to the capture of Mr. bin Laden and other Al Qaeda leaders.

Instead, thousands of matchbooks, posters, and other material - printed at taxpayer expense and translated into Urdu, Pashto, and other local languages - remained "impounded" on American Embassy grounds from 2002 to 2004, according to Rep. Mark Kirk, Republican of Illinois.

While the American government was engaged in a number of "black" or covert intelligence activities to locate Al Qaeda leaders, Mr. Kirk said, the "white" or public efforts - which have succeeded in the past in leading to the capture of wanted terrorists - were effectively shut down in the months following the September 11 attacks.

Mr. Kirk discovered Ms. Powell's unusual order in January 2004 and, over the past year, launched a series of behind-the-scenes moves that culminated in a blunt conversation with President Bush aboard Air Force One, the removal of the ambassador, and congressional approval for reinvigorating the hunt for Mr. bin Laden.

The full effect of Ms. Powell's impoundment order is difficult to measure. Pakistan is a key theater in the war on terror. Virtually every Al Qaeda leader captured to date has been apprehended in Pakistan, including Khalid Shaikh Mohammed, the planner of the September 11 attacks. More than 600 Al Qaeda fighters have been killed or captured in Pakistan since 2001.

Mr. Kirk accidentally learned of Ms. Powell's impoundment policy as part of an official congressional delegation visiting Islamabad, the capital of Pakistan, in January 2004.

During the course of his visit, Mr. Kirk met with several intelligence officers to discuss the hunt for Mr. bin Laden. Mr. Kirk, a moderate Republican from the North Shore of Chicago, also serves as an intelligence officer in the U.S. Navy Reserves.

Citing his experience in intelligence matters, Mr. Kirk asked embassy intelligence officials about the distribution of matchbooks in local languages. A single matchbook helped lead to the capture of Mir Amal Kansi, who gunned down several CIA employees at the front gates of the agency's Langley, Va., headquarters in 1993. Kansi was arrested in Pakistan in 1995 when a local fingered him for the $5 million reward. Mr. Kirk pointed out the similarities between the Kansi and bin Laden cases. "Both are cases gone cold in Pakistan," he said.

Embassy intelligence officials agreed with his assessment, Mr. Kirk said, but surprised the lawmaker by saying that the ambassador had ended the distribution of printed materials advertising the $25 million price on Mr. bin Laden's head.

Security personal were unhappy with the decision, according to the congressman. "There was a lot of discord among the staff," he said.

Mr. Kirk said that he raised the issue directly with the ambassador. According to the congressman, she replied that she had "six top priorities" and finding Mr. bin Laden was only one of them. She listed other priorities: securing supply lines for American and allied forces in Afghanistan, shutting down the network of nuclear proliferator A.Q. Khan, preventing a nuclear war between Pakistan and India, and forestalling a radical Islamic takeover of the government of Pakistan, a key American ally.

Ms. Powell, now serving at the State Department's Foggy Bottom headquarters in Washington D.C., declined to comment directly.

A senior State Department official confirmed that the meeting between Mr. Kirk and Ms. Powell did occur and that the ambassador did review the embassy's top six priorities, but the official said that "counterterrorism was the no. 1 priority."

The senior State Department official denied that Ms. Powell had restricted the distribution of materials touting the reward for Mr. bin Laden and other "high value targets." That program - known as Rewards for Justice - was discontinued in Pakistan prior to Ms. Powell's 2002 arrival because it was "ineffective," the senior official said. At the time, the Rewards for Justice program was widely used by other American embassies farther from the center of America's operations to kill or capture key Al Qaeda leaders.

A career State Department functionary, Ms. Powell was sworn in as American ambassador to Pakistan on August 9, 2002. A fluent Urdu speaker, she had previously served in posts on the subcontinent and across sub-Saharan Africa. She joined the State Department in 1977, following a six-year stint teaching high-school social studies in Dayton, Iowa.

Returning to Washington, D.C., Mr. Kirk began working to overturn Ms. Powell's order. As member of the House Appropriations subcommittee that funds the State Department, he was a force with which to be reckoned. He worked methodically, far from the public eye. He met with key congressional chairmen and then, gathering support, met with the speaker of the House, Dennis Hastert. In February 2004, he met with then-Deputy Secretary of State Richard Armitage. Then, he began raising the issue with a growing array of White House officials.

When Mr. Bush asked the congressman to join him aboard Air Force One for a campaign stop in Mr. Kirk's suburban Chicago district in July 2004, the lawmaker saw his chance. He told the president about his ambassador impounding materials that could lead to the capture of Mr. bin Laden. "Bush was very cautious," Mr. Kirk recalled. The president did not betray an immediate response. "When one of his people is concerned, he likes to take his time and investigate."

Ms. Powell left her post as American ambassador in November 2004.

State Department spokesman Noel Clay declined to comment on the timing of ambassadorial rotations.

A senior State Department official disputed the notion that Ms. Powell was removed by the White House, adding, "if the president really wants an ambassador gone, the department can move a lot faster than three months."

The former schoolteacher was replaced by veteran diplomat Ryan Crocker in November 2004. The mood at the American Embassy lifted almost immediately. "He is a take-charge guy," said one official who knows the embassy's intelligence staff, "far more aggressive in pursuing the bin Laden account."

The American Embassy in Islamabad now boasts a 24-hour call center to receive tips. The center is manned by two locals, both of whom speak the three major languages of Pakistan, and supervised by a Diplomatic Security officer. Embassy staff recently launched a 12-week radio and television campaign alerting residents that, in the words of one 30-second Urdu-language radio spot, they "may be eligible for a reward of up to $25 million for information leading to the arrest of known international terrorists." About 25 calls were received in February 2005, the center's first full month of operation.

Congress recently passed legislation raising the reward for information on Mr. bin Laden and other Al Qaeda members to $50 million and revamping the Rewards for Justice Program. More than $57 million has been paid to 43 people who provided credible information about the whereabouts of known terrorists since the program's founding in 1984. But little has been paid since the September 11, 2001, attacks.

Under legislation co-sponsored by Mr. Kirk and signed by Mr. Bush in December 2004, the top reward for information leading to the capture of Mr. bin Laden has been raised to $50 million from $25 million. The Rewards for Justice program has also been extensively retuned. Embassies are now required to conduct focus groups of locals to discover precisely which radio stations they tune in to and which newspapers they read. Based on those reports, the American Embassy in Pakistan is now broadcasting advertisements on the radio programs most closely followed by the residents of Waziristan, a mountainous region of Pakistan that is believed to be a haven for Al Qaeda.

The American Embassy in Islamabad's Rewards for Justice program is now in high gear. Yet, if Mr. Kirk and some intelligence officials are correct, valuable time was lost.
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