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).
House Speaker Nancy Pelosi 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 ranking Democrat on the House Intelligence Committee when President George W. Bush and Vice President Dick 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 her Post 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."
How did the American people react upon reading in the New York Times in December 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 have learned 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 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 was 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 the 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 was ordered to orchestrate 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.
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.)
Nevertheless, 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 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.
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? Robert L. Deitz, who is now 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 having statutory inspectors general.
Congress' Role, and Pelosi's
What was 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, then-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."
Dear Madam Speaker, were you one of those with whom Gonzales had discussions? Whether you were or you weren't, in either case it appears you were derelict in your duty.
It is time to fish or cut bait. If the Bush administration did not inform you regarding eavesdropping on Americans before 9/11, you need to reflect now on what such disregard for the laws and Constitution on matters of this importance means for future of our republic, and cease covering up for the White House. 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. 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 now forget the difference between the indicative and the subjunctive mood. The Founders did not. The Constitution does not say the president "may be" impeached, unless the speaker of the House decides for some reason to keep impeachment off the table. Given the long train of abuses and usurpations of this administration, you have no choice but to begin impeachment proceedings, Madame Speaker, if protecting our rights under constitutional government means anything to you.
If the Bush administration 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 forthwith and consider resigning from the House before you further endanger our freedoms.