Eavesdropping, Gagging, and the Constitution
By Ray McGovern
-- -- Is the National Security Agency being
"turned against the people," as the Congressional committee led
by Sen. Frank Church warned might happen? We the people cannot
know; it's classified.
Thursday's slick but evasive testimony by Gen. Mike Hayden, the
president's nominee to head the Central Intelligence Agency, put
the spotlight on Hayden's personal role in an aggressive NSA
program that skirts strict 30-year-old legal restrictions on
eavesdropping on American citizens. As NSA director from 1999 to
2005, Hayden did the White House's bidding in devising and
implementing that program without adequately informing Congress
- as required by law. When an unauthorized disclosure revealed
the program to the press, Hayden agreed to play point-man with
smoke and mirrors. Small wonder that the White House considers
him the perfect man for the CIA job.
The Fourth Amendment is supposed to protect us from
"unreasonable searches and seizures," unless the government can
establish "probable cause" that a crime is involved. The NSA,
FBI, and other agencies of government had been running programs
in clear violation of the amendment in the decades before the
Church committee held extensive hearings on these matters in
While acknowledging the NSA's technological capability as a
"sensitive national asset valuable to national defense," the
Church committee sharply warned, "If not properly controlled ...
this same capability could be turned against the American
people, at great cost to liberty." The upshot was the Foreign
Intelligence Surveillance Act (FISA), which passed in 1978 in an
effort to ensure that (1) this capability could play an
effective role for national defense and (2) it would not be
"turned against the American people."
The football lingo favored by Gen. Hayden provides an
instructive metaphor here. FISA was essentially an "end run"
around the Fourth Amendment. But it was a legal play authorized
by the 1978 legislation out of concern that this valuable
eavesdropping tool not be lost to intelligence officials charged
with protecting US national security. To ensure as much as
possible that Constitutional protections would not be
jeopardized, the 1978 law gave the government permission to
eavesdrop on Americans only with a warrant from a special court
set up for that purpose (the FISA court). At the same time, in
recognition of the occasional need for intelligence officers to
act quickly, the law specifically allows eavesdropping on US
citizens for 72 hours before a warrant must be sought.
After 9/11, at the urging of Vice President Dick Cheney and his
counsel David Addington, President George W. Bush authorized
what can be likened to an end run around the FISA end run. But
since this new play ignores the requirement for a court warrant,
it amounts to "illegal procedure." And this is recognized by
virtually everyone but the most zealous fans of the Bush team,
who argue vehemently that the play should not be called back and
the team not be penalized.
As I noted in an earlier article, Adm. Bobby Ray Inman, NSA
director (1977-81), who over a long career has earned wide
respect from Republicans and Democrats alike, recently leveled
pointed criticism at the new administration program. Inman
stressed, "There clearly was a line in the FISA statutes which
says you couldn't do this." He also pointed to an "extra
sentence put in the bill, which said, ‘You can't do anything
that is not authorized by this bill.'" He added that we should
get away from the idea that the program can continue.
Fouling One Off
Switching to the baseball lingo equally favored by Hayden, at
his confirmation hearing Thursday he swung at a fat pitch from
administration loyalist, Sen. Kit Bond (R-Missouri). But instead
of knocking it over the fence, per the game plan, Hayden fouled
up by fouling it off. Bond's delivery:
"Did you believe that your primary responsibility as director of
NSA was to execute a program that your NSA lawyers, the Justice
Department lawyers, and White House officials all told you was
legal, and that you were ordered to carry it out by the
president of the United States?"
Instead of the simple "Yes" that was anticipated, Hayden paused
and spoke rather poignantly - and revealingly:
"I had to make this personal decision in early October 2001, and
it was a personal decision.... I could not not do this."
Why should it be such an enormous personal decision whether or
not to obey a White House order? No one asked Hayden, but it
requires no particular acuity to figure it out. This is a
military officer who had indoctrinated NSA employees with what
used to be known as NSA's "First Commandment" - Thou Shalt Not
Eavesdrop on US Citizens; an officer who, like the rest of us,
had sworn to defend the Constitution of the United States
against all enemies, foreign and domestic; a military man well
aware one must never obey an unlawful order.
That, it seems clear, is why Hayden found it a difficult
personal decision. Did the new, post-9/11 "paradigm" created by
then-White House counsel Alberto Gonzales and David Addington
trump the Constitution? President George W. Bush on January 23,
2006: "I had all kinds of lawyers review the process." Seems so.
The same ones who were concurrently devising ways to "legalize"
torture and indefinite detention without due process.
No American, save perhaps Adm. Inman, who was present at the
creation of FISA, knew the FISA law better than Hayden.
Nonetheless, the general said Thursday that he did not even
require a written legal opinion to satisfy himself that this
very aggressive surveillance program, to be implemented without
warrant and without adequate consultation in Congress, could be
considered legal. Attorneys from the Justice Department and
elsewhere were said to have blessed the program. But when
Congressman Maurice Hinchey (D-NY) asked now-Attorney General
Gonzales to have lawyers look into the advice rendered at the
time by Justice attorneys, he was told that Justice had to drop
the investigation. The lame excuse? The NSA had refused to grant
the attorneys from Justice the needed clearances to look into
the NSA program.
The Powell Virus
Infected like so many other senior military officers by what
might be called the "Powell virus," Hayden could "not not"
salute his commander in chief - whether the order be legal or
illegal. He could not summon the courage to say "Sir, no sir,"
as the excellent new film on Vietnam puts it.
Hayden's Prussian boot-click is what we can anticipate if he is
confirmed as director of the CIA. This is why the White House
considers him so highly qualified for the job. But it is hardly
what the country needs in dealing with the long train of abuses
and usurpations adopted post-9/11, including kidnapping,
extraordinary rendition, torture, sequestering detainees without
notification to the Red Cross, and illegal surveillance.
Lies, Leaks, and the Constitution
The confirmation hearing also raised the issue of leaks, with
Gen. Hayden subjecting them to harsh criticism. After all, his
nomination would slide through easily, were it not for
unauthorized disclosures showing that, at the behest of the vice
president (and maybe the president too, who knows?), Hayden
devised and ran illegal programs in violation of FISA and the
Fourth Amendment. We retirees who have had first-hand experience
with the value of leaks have been working hard to put them in
Twenty months ago a dozen former government officials
established the Truth-Telling Coalition to encourage serving
officials to expose consequential government lies - the varying
reasons adduced for attacking Iraq, for example. Our initial
appeal issued on September 9, 2004, was very direct:
"We know how misplaced loyalty to bosses, agencies, and careers
can obscure the higher allegiance all government officials owe
the Constitution, the sovereign public, and the young men and
women put in harm's way. We urge you to act on those higher
We were trying to challenge the pervasive temptation -
especially among officials working on classified matters - to
hunker down and avoid placing job and financial future at risk.
The coalition urged government officials instead to provide such
information both to Congress and, through the media, to the
public. "Truth-telling is a patriotic and effective way to serve
the nation," we wrote.
Good News and Bad News
The good news is that many officials still serving in the
national security parts of our government have found ways to
expose crimes like kidnapping "suspected terrorists," torturing
them or "rendering" them to other countries to be tortured,
holding them incommunicado without the required notice to the
Red Cross, warrantless eavesdropping.... The list goes on.
The bad news is that administration officials and those in
Congress who do their bidding seem determined to intimidate
those like Veteran Intelligence Professionals for Sanity (VIPS)
from exercising our First Amendment rights to speak out against
that which we should speak out against: What the Nuremberg
Tribunal called "the supreme international crime" of initiating
a war of aggression. Especially considering that, as Nuremberg
stressed, such a war contains the "accumulated evil of the
whole." Just like the evils mentioned above, which are still
It is abundantly clear that the George W. Bush administration -
enjoying abroad "sole-remaining-superpower" status, and at home
effective control of all three formerly independent branches of
government - believes it has carte blanche to continue these
abuses under the rubric of the "Long War" on terror. So, rather
than addressing these abuses, the executive branch and its
courtiers in Congress have been fixated on stemming the flow of
revelations to the press.
Goss and His Lie Detectors
Toward this end, before former CIA director Porter Goss was
given a pink slip on May 5, he had earned the dubious
distinction of blowing more electrical circuits than any of his
predecessors through overuse of polygraph machines for
"single-issue" questioning: i.e., have you talked to the press?
Goss fired senior analyst Mary McCarthy ten days short of
retirement as a warning to those misguided souls who may still
believe the Fourth Estate has an important role to play in
curbing government excesses.
During his tepid exit interview with President George W. Bush,
the president described him (accurately) as a "transition"
leader. The transition has been from bad ("slam-dunk" Tenet) to
worse (yes-man Hayden). Gen. Hayden, by most accounts, was a
decent sort until he fell in with bad companions - Vice
President Dick Cheney, his "sure-you-can-do-anything" lawyer
David Addington, Alberto Gonzales, and other hired-gun lawyers.
Sniffing absolute power can do things to the most righteous.
Forget the warrantless eavesdropping. What kind of person would
lust after a job, the description of which includes supervising
kidnapping, rendition and torture?
Under pressure from his patron, Vice President Dick Cheney, to
plug the leaks, Goss repeatedly condemned public discussion of
intelligence matters - not only by current employees, but also
by retirees - and was extremely critical of the media for
publishing unauthorized disclosures. Similarly driven by Cheney,
House Intelligence Committee chairman Pete Hoekstra has
expressed outrage at the disclosures, particularly those
regarding warrantless eavesdropping and secret CIA-run prisons
The problem is that Hoekstra is in a position to do something
about it. The odor of fascism rises from his latest effort to
intimidate those like VIPS from speaking and writing about
administration behavior. Hoekstra inserted the following into
the Intelligence Authorization Act for FY'07 (HR 5020), which
has passed the House:
SEC. 413. STUDY ON REVOKING PENSIONS OF PERSONS WHO COMMIT
UNAUTHORIZED DISCLOSURES OF CLASSIFIED INFORMATION.
(a) Study - The Director of National Intelligence shall conduct
a study on the feasibility of revoking the pensions of personnel
in the intelligence community ... who commit unauthorized
disclosures of classified information, including whether
revoking such pensions is feasible under existing law or under
the administrative authority of the Director of National
Intelligence or any other head of an element of the intelligence
Director of National Intelligence John Negroponte would have 90
days from the date of enactment (the bill has not yet made it to
the president's desk) to conduct and submit the study to the
House and Senate intelligence committees.
Who decides what constitutes "classified information?" Not CIA
retirees, you can be sure. Administration spokesmen have
stressed that, despite previous disclosures to the press,
programs like the eavesdropping and secret prisons remain
classified. Journalists, too, are in jeopardy. Attorney General
Alberto Gonzales warned Sunday on ABC's "This Week" that they
can be prosecuted for publishing classified information, and
insisted that the government will not hesitate to track
telephone calls involving reporters as part of criminal
investigations regarding leaks. Gonzales said he understood the
role of the press, but insisted that the rights of a free press
cannot trump national security concerns.
There it is, folks. The same Addington/Gonzales team that
created a "post-9/11 paradigm" to justify torture can use that
paradigm to trump the First Amendment as well. And we now have
it straight from the mouth of the attorney general.
If the bill is passed with Hoekstra's SEC. 413 intact, we who
have been speaking out against administration misdeeds will be
reduced to hoping that any penalties are not made retroactive.
The cognoscenti tell us not to worry; the Constitution will in
the end trump draconian legislation of that kind. But given the
current whiff of fascism wafting over Washington, it seems
altogether possible the administration would not shy away from
using our tax dollars to bring us to trial, and deprive us of
our pensions for use in defending ourselves.
O Tempora, O Mores!
Ray McGovern works with "Tell the Word," the publishing arm
of the ecumenical Church of the Saviour in Washington, DC. A CIA
analyst from 1963 to 1990, he served nine directors and seven
presidents, and is now on the Steering Group of Veteran
Intelligence Professionals for Sanity (VIPS).
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