By Ray McGovern
Hope my re-posting of Veteran Intelligence Professionals for Sanity (VIPS) colleague Ray McGovern's piece doesn't confuse folks. Mr. McGovern doesn't have a blog page on Huffington Post and is too busy to get one right now as he's out speaking to folks. But his recent piece (which follows) not only relates to Arianna's recent question to Nancy Pelosi as to whether she (Pelosi) is "too well behaved to get us out of Iraq" but also relates to efforts in Congress to reform the FISA. So I thought Mr. McGovern's insights merit being re-posted.
What Did Pelosi Know, and When Did She Know It?
by Ray McGovern
Will House Speaker Nancy Pelosi come clean now that it is clear that the National Security Agency (NSA) was turned loose on American citizens well before 9/11? She has admitted knowing for several years about the Bush administration's eavesdropping on Americans without a court warrant. She was briefed on it when she was a ranking Democrat in the House Intelligence Committee when Bush and Cheney took office.
But was she told that within days of their taking office, the National Security Agency's electronic vacuum cleaner had already begun to suck up information on Americans--criminal law and the Constitution be damned?
In a Washington Post op-ed of Jan. 15, 2006, Pelosi, with a uniquely long tenure on the Intelligence Committee, acknowledged that she was one of the privileged handful of lawmakers who were briefed. Referring to her seniority as ranking member, she wrote in an apologia-sans-apology, "This is how I came to be informed of President Bush's authorization for the NSA to conduct certain types of surveillance." She then proceeded to demonstrate her remarkably--one might say unconstitutionally--subservient attitude toward the Executive Branch:
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.
Be Afraid...and Sheepishly Submissive
How did the American people react upon reading in the New York Times in Dec. 2005 of this glaring infringement on their Constitutional rights? Most responded as they have been conditioned to react--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 Sebastian Haffner, a young German lawyer and insider wrote from Berlin at the time:
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, p. 121
And if the terrorists attacked on 9/11, it was perfectly in order that the Bush administration took "decisive measures" of similar kind. Shamefully, far too many American politicians exhibited sheepish submissiveness, when the White House PR machine pulled out all stops to exploit the trauma brought on by the attacks of 9/11.
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.
Thanks to an enterprising reporter for the Rocky Mountain News, we find 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 NSA program. Administration PR consultants made this easy by inventing a clever--if retroactive--label to the program: The "Terrorist Surveillance Program." Nothing to fear, folks, unless you're telephoning or emailing Osama bin-Laden.
Whopper? Well yes. It turns out that seven months before the threat of terrorism garnered much White House 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.
At the time, the general counsel of Qwest Communications advised management that what NSA was suggesting was illegal. And to his credit, the then-head of the company 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, 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 apparently lost out on lucrative government contracts.
Yes, Before 9/11
These illegal operations, including those prior to 9/11, were enabled by Michael Hayden, then head of NSA and now director of CIA. Hayden has been out in front "justifying" illegal eavesdropping by what happened on 9/11. Did he know the illegal activities started before then? Of course he did; he orchestrated them.
Did he know they were illegal? Another no-brainer. While director of NSA, Hayden had emphasized what had long been known as NSA's First Commandment: "Thou Shalt Not Eavesdrop on Americans."
But in testimony at his confirmation hearings, Hayden said that in the wake of 9/11 he "could not not do" what the president wanted him to do with the "Terrorist Surveillance Program." The hypocrisy is well nigh unbearable.
Martinet
When the program was revealed in the press in late 2005, Hayden agreed to play point man with smoke and mirrors. (Small wonder that the White House later deemed him the perfect man to head the CIA.)
Even so, a whiff of conscience showed through his nomination hearing 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 of the strictures against obeying an unlawful order.
President George W. Bush assured us on Jan. 23, 2006, "I had all kinds of lawyers review the process." Right. The same ones, no doubt, who were busy devising ways to "legalize" torture and indefinite detention without due process.
No American, save perhaps retired Admiral Bobby Ray Inman, who as NSA director was present at the creation of the Foreign Intelligence Surveillance Act (and who has said the Hayden-approved activities are 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.
No surprise 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? Robert L. Deitz, who now serves as a "trusted aide" to CIA Director Hayden. Deitz, we learn from recent news reports, has just been launched on an investigation of the CIA Inspector General--yes, that's right, an investigation of CIA's statutory Inspector General John Helgerson, who apparently does not fit in with the elastic ethos Hayden and his immediate predecessors brought to the agency.
It appears Helgerson is not a "team player," resisting, as he has, the reintroduction of the Nixonian dictum "It's legal if the president says it's legal." He has been taking his job too seriously for Hayden's taste--conducting honest investigations into abuses like torture. Fortunately for Helgerson and the rest of us, Hayden cannot fire him, which is handy proof of the wisdom of the law that mandated statutory inspectors general.
Congress' Role; and Pelosi's
What was Pelosi doing all this time? She continues to brag, as she did in a recent interview with Arianna Huffington, that she (Pelosi) is "the longest serving person on the House Intelligence Committee" and thus very familiar with that committee's work.
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. Many forget that, in an unguarded moment at a press conference on Dec. 19, 2005, 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.
Dear Madam Speaker
Were you one of those select few with whom Gonzales had discussions? Either you were or you weren't. In either case it appears you were derelict in your duty.
If the Bush administration did not inform you about its efforts to eavesdrop on Americans before 9/11, you need to reflect on what such disregard for the law and the Constitution on matters of such importance means for future of our Republic. And you will need to stop covering up for the White House.
Please familiarize yourself with the orderly process the Founders wrote into the Constitution to address this kind of abuse of power. It is called impeachment; there is no reason to be afraid of it. You may wish to locate a copy of the Constitution and read Article II, Section 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
I cannot believe that, with your pedigree and schooling, you have forgotten the difference between the indicative and the subjunctive mood. The Founders knew it well. The Constitution does not say the president, vice president, et al. "might" or "may" be impeached, if the Speaker of the House puts impeachment on the table. Whatever the whim or political calculation of any given Speaker might be, the Constitution does not give him or her the power to make that key sentence subjunctive.
When Cindy Sheehan, Rev. Lennox Yearwood, and I met with House Judiciary Chairman John Conyers in his office on July 23, we asked him if he thought deliberately serving up false "intelligence" to trick Congress into approving an unnecessary war was a "high crime," he nodded in assent. And you are, I trust, aware that there is now conclusive evidence that the president was not misled by intelligence, as he continues to claim, but rather was a full and witting participant in the campaign five years ago to deceive you and other lawmakers and usurp your Constitutional prerogative regarding war.
It is a secret to no one that Congressman Conyers has been hiding behind your skirt for almost a year now whining, She won't let me start impeachment proceedings because she has decided to keep impeachment "off the table."
Again, Madam Speaker, the Constitution does not give you that option. Over 200 years ago, the Framers left nothing to whim on this key issue. Given the deceit surrounding the invasion and occupation of Iraq and other abuses and usurpations including illegal surveillance programs launched just days after the Bush administration took office, you have no choice but to begin impeachment proceedings--that is, if protecting our Constitutional rights and the powers that the Founders reserved to you, our representatives, hold any meaning for you.
If, on the other hand, the Bush administration did keep you appropriately informed of its eavesdropping programs and, out of obeisance to the executive branch you acquiesced and said nothing, then shame on you. In that event I suggest you lay down your duties as House leader forthwith. And please consider resigning from the House altogether, before you acquiesce in further endangerment of the freedoms and powers guaranteed us by the Constitution of the United States.
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. 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)
A shorter version of this article appeared first on Consortiumnews.com.