By Ray McGovern
October 15, 2007
House Speaker Nancy Pelosi has admitted knowing for several years about the Bush administration’s eavesdropping on Americans without a court warrant. She said she was briefed on it when she was ranking Democrat on the House Intelligence Committee. But was she told that the illegal surveillance began well before 9/11?
Referring to her briefing in an apologia-sans-apology Washington Post op-ed on Jan. 15, 2006, she wrote: “This is how I came to be informed of President Bush’s authorization for the NSA to conduct certain types of surveillance.”
Demonstrating her unconstitutionally subservient attitude toward the Executive Branch, Pelosi wrote:
“But when the administration notifies Congress in this manner, it is not seeking approval. There is a clear expectation that the information will be shared by no one, including other members of the intelligence committees. As a result, only a few members of Congress were aware of the president’s surveillance program, and they were constrained from discussing it more widely.”
How did the American people react upon learning in December 2005 of this glaring infringement on their Constitutional rights. Most reacted as they have been conditioned to act—out of the old fear-factor shibboleth: “After 9/11/2001, everything changed.”
Yes, just as after 2/27/1933, the night of the burning of the German Parliament (Reichstag) in Berlin, everything changed.
As a German attorney there at the time put it:
“What one can blame them [German politicians and populace] for, and what shows their terrible collective weakness of character, is that this settled the matter. With sheepish submissiveness the German people accepted that, as a result of the fire, each one of them lost what little personal freedom and dignity was guaranteed by the Constitution; as though it followed as a necessary consequence. If the Communists burned down the Reichstag, it was perfectly in order that the government took ‘decisive measures.’” [Defying Hitler, A Memoir, by Sebastian Haffner, p. 121]
And if the terrorists attacked on 9/11, it was perfectly in order that the Bush administration took “decisive measures”—Patriot Act and illegal measures. In reaction to the PR offensive to manipulate and exploit the trauma we all felt from 9/11, far too many of our politicians and fellow citizens exhibited sheepish submissiveness.
Now we learn that it is even worse. The eavesdropping abuses began as soon as the Bush administration came into office — WELL BEFORE 9/11.
In recent days, thanks to an enterprising reporter for the Rocky Mountain News, we learned that the president, vice president, and CIA director—not to mention the credulous crowd around Nancy Pelosi—have all been regurgitating a king-sized whopper aimed at providing “justification” for the National Security Agency program.
The White House PR folks made this easy by retroactively applying a clever label to the program: the “Terrorist Surveillance Program.” Nothing to fear, folks, unless you’re telephoning or e-mailing Osama bin-Laden.
Whopper? Well yes. It turns out that seven months before the threat of terrorism got President George W. Bush’s attention (despite the best efforts of then-counterterrorism chief Richard Clarke to install it on everyone’s screen-saver, so to speak), the administration instructed NSA to suborn American telecommunications companies to spy illegally on Americans.
The general counsel of Qwest Communications advised management that what NSA was suggesting was illegal. And to his credit, the head of the company at that time stuck to a firm “No,” unless some way were found to perform legally what NSA wanted done.
Qwest’s rivals, though, took their cue from the White House, and adopted a flexible attitude toward the law—and got the business. They are now being sued. Lawsuit filings claim that, seven months before 9/11, AT&T “began development of a center for monitoring long-distance calls and Internet transmissions and other digital information for the exclusive use of the NSA.”
Adding insult to injury, draft legislation now being pushed by the White House would hold AT&T and other collaborators harmless for playing fast and loose with our right to privacy in order to enhance their bottom line.
For its principled but, in government eyes, recalcitrant attitude, Qwest indicates that it lost out on lucrative government contracts.
Yes, BEFORE 9/11.
These illegal operations were enabled by Michael Hayden, then head of NSA and now head of CIA. Despite this history, Hayden has been out front “justifying” the illegal eavesdropping by citing what happened on 9/11.
Did he know the warrantless domestic spying was illegal? That one is a no-brainer. While at NSA, Hayden emphasized what was known as NSA’s First Commandment: “Thou Shalt Not Eavesdrop on Americans.”
When an unauthorized disclosure revealed the program to the press in late 2005, Hayden agreed to play point man with smoke and mirrors to conceal the full story. Small wonder that the White House later deemed him the perfect man to head the CIA.
In testimony at his CIA confirmation hearings in May 2006, Hayden said that in the wake of 9/11 he “could not not do” what the president dubbed the “Terrorist Surveillance Program.”
A whiff of conscience showed through his nomination hearing, though, when he flubbed the answer to a soft-pitch from administration loyalist, Sen. Kit Bond, R-Missouri:
“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 in the script, 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, 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.
President Bush assured us on Jan. 23, 2006, “I had all kinds of lawyers review the process.” Seems so. The same ones who were at the same time devising ways to “legalize” torture and indefinite detention without due process.
No American, save perhaps Admiral Bobby Ray Inman, who was present at the creation of the Foreign Intelligence Surveillance Act (and who has said the eavesdropping program is illegal), knew FISA better than Hayden.
Nonetheless, Hayden conceded that he did not even require a written legal opinion to satisfy himself that the surveillance program, to be implemented without warrant and without adequate consultation in Congress, could pass the smell test.
Small wonder that one of Hayden’s predecessors as NSA director, upon learning what Hayden had agreed to do, said angrily, “He ought to be court-martialed.”
And who was the NSA general counsel at the time? It appears to have been one Robert L. Deitz, who is now a “trusted aide” to CIA Director Hayden. Deitz has just been launched on an investigation of the CIA Inspector General, who apparently made the mistake of being too honest in investigating abuses like torture. Remarkable. [NYT, Oct. 11, 2007]
Where Was Congress?
What was House Speaker Nancy Pelosi doing all this time?
When the illegal eavesdropping was exposed, many asked why the administration did not simply go to Congress to secure changes in the already flexible FISA law, if such were needed. In an unguarded moment at a press conference on Dec. 19, 2005, Attorney General Alberto Gonzales let slip that the administration did take soundings in Congress:
“This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past – certain members of Congress – as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”
Were you one of those with whom Gonzales had discussions, Nancy?
Either way you were woefully derelict in your duty. Either they told you or they didn’t. Either way you come off as no leader.
Time to fish or cut bait. Assuming the Bush regime did not inform you regarding eavesdropping on Americans before 9/11, do not any longer cover up for the White House. Rather, these crimes demand impeachment.
If they did keep you fully informed and, out of obeisance to the executive branch you acquiesced and said nothing, you should lay down your duties as House leader, examine your conscience, and consider resigning.
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, D.C. He was an Army infantry/intelligence officer from 1962-64, and then a CIA analyst for 27 years. He is co-founder of Veteran Intelligence Professionals for Sanity (VIPS).