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 1975.

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 was 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 U.S. 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 U.S. citizens for 72 hours before a warrant must be sought.

Illegal Procedure
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-Mo.). But instead of knocking it over the fence, per the game plan, Hayden fouled up by fouling it off. Bond's delivery:

[I]"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 U.S. 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 Jan. 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-N.Y.) 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 firsthand experience with the value of leaks have been working hard to put them in perspective.

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 Sept. 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 loyalties."

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 going on.

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 10 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 abroad.

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:


"(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 community."

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!