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Monday, December 19, 2005

Executive Run Amok

Spying and Lying

"This shocking revelation ought to send a chill down the spine of every American."

Senator Russell Feingold, December 17, 2005

As reported by the New York Times on Friday, "Months after the September 11 attacks, President Bush secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying."

A senior intelligence officer says Bush personally and repeatedly gave the NSA permission for these taps--more than three dozen times since October 2001. Each time, the White House counsel and the Attorney General--whose job it is to guard and defend our civil liberties and freedoms--certified the lawfulness of the program. (It is useful here to note "The Yoo Factor": The domestic spying program was justified by a "classified legal opinion" written by former Justice Department official John Yoo, the same official who wrote a memo arguing that interrogation techniques only constitute torture if they are "equivalent in intensity to...organ failure, impairment of bodily function or even death.")

Illegally spying on Americans is chilling--even for this Administration. Moreover, as Kate Martin, director of the Center for National Security Studies, told the Times, "the secret order may amount to the president authorizing criminal activity." Some officials at the NSA agree. According to the Times, "Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation." Others were "worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected President."

It's always a fight to find out what the government doesn't want us to know, and this Administration and its footsoldiers have used every means available to undermine journalists' ability to exercise their First Amendment function of holding power accountable. But compounding the Administration's double-dealing, the media has been largely complicit in the face of White House mendacity. David Sirota puts it more bluntly in a recent entry from his blog: "We are watching the media being used as a tool of state power in overriding the very laws that are supposed to confine state power and protect American citizens."

Consider this: the New York Times says it "delayed publication" of the NSA spying story for a year. The paper says it acceded to White House arguments that publishing the article "could jeopardize continuing investigations and alert would-be-terrorists that they might be under scrutiny."

Despite Administration demands though, it was reported in yesterday's Washington Post that the decision by Times editor Bill Keller to withhold the article caused friction within the Times' Washington bureau, according to people close to the paper. Some reporters and editors in New York and in the paper's DC bureau had apparently pushed for earlier publication. In an explanatory statement, Keller issued the excuse that, "Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions." This from a paper, which as First Amendment lawyer Martin Garbus pointed out in a letter to editor "rejected similar arguments when it courageously pub;ished the Pentagon Papers over the government's false objections that it would endanger our foreign policy as well as the lives of individuals." The Times, Garbus went on to argue, "owes its readers more. The Bush Administration's record for truthfulness is not such that one should rely on its often meaningless and vague assertions."

Readers and citizens deserve to know why the New York Times capitulated to the White House's request? It is true that Friday's revelations of this previously unknown, illegal domestic spying program helped stop the Patriot Act reauthorization. But what if the Times had published its story before the election? And what other stories have been held up due to Adminsitration cajoling, pressure, threats and intimidation?

The question of how this Administration threatens the workings of a free press, a cornerstone of democracy, remains a central one. Every week brings new evidence of White House attempts to delegitimize the press's role as a watchdog of government abuse, an effective counter to virtually unchecked executive power.

Last month, for example, the Washington Post published Dana Priest's extraordinary report about the CIA's network of prisons in Eastern Europe for suspected terrorists. Priest's reporting helped push passage of a ban on the metastasizing use of torture. But, as with the New York Times, the Post acknowledged that it had acceded to government requests to withhold the names of the countries in which the black site prisons exist.

How many other cases are there of news outlets choosing to honor government requests for secrecy over the journalistic duty of informing the public about government abuse and wrongdoing?

Never has the need for an independent press been greater. Never has the need to know what is being done in our name been greater. As Bill Moyers said in an important speech delivered on the 20th anniversary of the National Security Archive, a dedicated band of truth-tellers, "...There has been nothing in our time like the Bush Administration's obsession with secrecy." Moyers added. "It's an old story: the greater the secrecy, the deeper the corruption."

Federation of American Scientists secrecy specialist Steven Aftergood bluntly says, "an even more aggressive form of government information control has gone unenumerated and often unrecognized in the Bush era, as government agencies have restricted access to unclassified information in libraries, archives, websites and official databases." This practice, Aftergood adds, "also accords neatly with the Bush Administration's preference for unchecked executive authority."

"Information is the oxygen of democracy," Aftergood rightly insists. This Administration is trying to cut off the supply. Journalists and media organizations must find a way to restore their role as effective watchdogs, as checks on an executive run amok.

Katrina vanden Heuvel
Sun Dec 18, 5:42 PM ET
The Nation


License To Spy

Mr. President, it is time to have checks and balances in this country.? So spoke Vermont Sen. Patrick Leahy, ranking Democrat on the Judiciary Committee, as he filibustered reauthorization of the USA PATRIOT Act?s surveillance provisions. It was The New York Times? revelation that the National Security Agency, or NSA, was eavesdropping on telephone calls and e-mails far beyond its long-standing watch on foreign entities that so provoked Sen. Leahy.

But the PATRIOT Act doesn?t address the NSA. To grapple with that agency, Congress needs a page of history and a lesson in law. For this is not the first time the NSA has been caught casting so wide a net. In 1976, a Senate inquiry into intelligence overreaching led by Sen. Frank Church exposed secret NSA spying on Americans and prompted Congress to impose new rules. But NSA?s domestic spying program today violates those rules, repeating the abuses and wasteful overreaching of the Cold War era. To respond to the most recent bout of domestic spying, Congress' first task should be to understand how and why laws were circumvented.

From the early 1960s until 1973, the Church Committee found, the NSA ?compiled a list of individuals and organizations, including 1,200 American citizens and domestic groups, whose communications were segregated,? transcribed and the disseminated within the intelligence community. Among the missives the Church Committee found in Cold War NSA files were discussions about a peace concert, an anti-war activist?s request for a speaker in New York and a newspaper correspondent?s report from Southeast Asia to his magazine in New York. The NSA also examined vast numbers of telegrams. Despite the scale and intrusiveness of these efforts, the intercepts had ?little intelligence value."? Most were personal or private in nature.

The Church Committee?s disclosures, fiercely resisted by the Ford administration and Attorney General Edward Levi, prompted significant statutory reforms. In 1978, Congress passed the Foreign Intelligence Surveillance Act, the product of two years? intense debate. Known as FISA, the act established a secretive foreign intelligence court, staffed by federal judges, to authorize intelligence-related warrants. The NSA today, however, bypassed even the FISA court, which imposes only a minimal check. But why?

The Church Committee highlighted the pivotal role of legal guidelines and opinions for sound intelligence operations. Noting that Congress hadn?t given the NSA a statutory charter, the committee argued that the NSA?s methods and goals passed without meaningful debate. Today, the NSA?s mandate is still embodied in an executive order, not a law. Moreover, the NSA?s domestic eavesdropping was authorized by secret presidential order. The president uses these secretive laws to order and implement many controversial intelligence programs, such as ?extraordinary renditions,? whereby terrorism suspects are transferred to other nations? custody for coercive interrogation and even torture.

This legal vacuum had two important consequences. First, the Church Committee found that an agency without a legal mandate easily becomes an agency operating beyond the law. The NSA, concluded Church, had simply ?not applied at all? the legal standards and procedures for electronic surveillance. Other agencies, including the FBI, simply failed to look into the legality of their actions.

Today, things are worse. Rather than ignoring the law, the Administration takes the view that the law doesn?t apply to it. According to The New York Times , the NSA?s domestic surveillance program is underwritten by analysis from the Office of Legal Counsel in the Department of Justice. OLC has concluded that constitutional rights do not count when the president deals with those he decides are ?terrorists.? This weekend, the president defended this version of executive power as necessary. But this theory of untrammeled presidential authority has the perverse effect of turning constraints on executive action?such as the law that presidents must authorize covert operations?into licenses for mischief. And the same theory, invoked by the same lawyer, justified the unreasonably narrow definition of torture that led to public outrage and Sen. John McCain?s anti-abuse amendment.

Justifying the NSA?s spying as necessary, the Bush administration points to a need to ?move quickly? in eavesdropping. But FISA already contains an exception for emergencies that allows the attorney general to authorize foreign intelligence surveillance for up to 72 hours without judicial approval. Also, it is unclear how news of the NSA?s program ?alerts our enemies,? as president argued: FISA allows the same surveillance to be conducted under the rule of law.

The second consequence of the legal vacuum that Church identified is this: Absent clear statutory guidance, an agency?s mission expands through carelessness and excessive zeal. James Bamford recounts how one NSA fishing expedition, ?Operation SHAMROCK,? was managed by one lower-level manager ?without a great deal of attention from anyone.? Simply because a low-level functionary developed a program without oversight or management, millions of private communications thus were examined by the government.

Without clear boundaries, NSA?s Cold War mission crept beyond its intelligence mandate. In 1970, it began monitoring communications at the behest of narcotics enforcement agencies. Indeed, the Bureau of Narcotics and Dangerous Drugs gave the NSA 450 names for its Watch List that year. Techniques dubious even in the intelligence context found application in the ordinary criminal context, where they were clearly unconstitutional. Recent revelations in The Washington Post about the military?s Counterintelligence Field Activity hint that today?s intelligence activities may have spilled over legitimate limits. And in a remarkable echo of the NSA?s Cold War spying, a recent bill proposed by Reps. Sensenbrenner and King would allow criminal gangs to be designated as illegal in the way terrorist organizations already are.

The words, ?Just trust us,? do not appear in the United States Constitution. Congress should thus seize the opportunity of the pending Defense Authorization Bill to demand disclosure of the NSA?s legal justifications for its domestic spying. Demanding this disclosure is only the beginning of public debate on the proper functioning of our separation of powers in the realm of national security. Intelligence policymaking benefits from public debate?when officials must justify and explain their decisions.

Aziz Huq
December 19, 2005

Aziz Huq is associate counsel in the Liberty and National Security project of the Brennan Center for Justice at NYU School of Law. He is co-writing with Fritz Schwarz a book on the separation of powers and national security to be published by the New Press in late 2006.