FISA in the Severed Garden

FISA in the Severed Garden

{1} "Secrecy -- the first refuge of incompetents -- must be at bare minimum in a democratic society, for a fully informed public is the basis of self-government. Those elected or appointed to positions of executive authprity must recognize that government, in a democracy, cannot be wiser than the people."
-- House Committee on Government Operations; 1960 Report
John Dean opens his book, "Worse Than Watergate," with the above quote. It seems to fit the most current scandal confronting the Bush2 administration, which was exposed by the New York Times for what appears to be illegal surveillance of American citizens by the National Security Agency.
The administration claims that President Bush has the right to ignore the Foreign Intelligence Surveillance Act (FISA), based on his constitutional authority and the congressional resolution passed a week after 9-11, which allowed him the ability to use force against those who planned the attack on this country. Further, the administration claims that it kept congressional leaders from both parties updated on the NSA's spying on American citizens.
Even Arlen Specter (R-PA) disputes this. The 12-20-05 New York Times quotes him as saying, "I think it does not constitute a check and balance. You can't have the administration and a select number of members (of congress) alter the law. It can't be done." (page 24)
Further, the same article notes that Senator John D. Rockefeller IV (D-WV) had sent a handwritten letter to VP Cheney, expressing his belief that "given the security restrictions associated with the information, and my inability to consult with staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities."
Clearly, the administration actions violate the FISA law. It is worth noting that FISA was introduced four years in a row by Senator Ted Kennedy in the 1970s, in order to try to establish protections of the civil rights of American citizens. Kennedy had worked hard with the Justice Department and members of the Senate Intelligence Committee, and his bill was finally signed into law by President Carter on 10-25-78. (The Puzzle Palace; James Bamford; 1982; page 462)
Let's take a closer look at the balance of powers defined by the U.S. Constitution, and see how it relates to the executive branch of government, war powers, the congress, and the federal courts. Perhaps then we can decide if President Bush, and maybe even VP Cheney, have abused the power entrusted to them.
{2} "Nixon's Presidency was not an aberration but a culmination. .... But full recovery seemed unlikely unless the President himself recognized why his Presidency had fallen into such difficulties. Nixon's continued invocation, after Watergate, of national security as the excuse for presidential excess, his defense to the end of unreviewable executive privilege, his defiant assertion that, if he had it to do over again, he would still deceive Congress and the people .... suggested that he still had no clue as to what his trouble was, still failed to understand that the sickness of his Presidency had been caused, not by the overzealousness of his friends nor by the malice of his enemies, but by the expansion and abuse of presidential power itself."
-- The Imperial Presidency; Arthur Schlesinger, Jr; 1973; page 416.
The single best book on the issues involved in the tension between the executive branch of the federal government and the legislature and judiciary is Schlesinger's classic, "The Imperial Presidency." The Founding Fathers intended there to be a balance of powers in the federal government; this would be achieved by a series of checks and balances defined by the Constitution.
In their wisdom, they recognized that this balance would create an inertia, that would keep each of the three branches from "power-grabbing." The exception to this has been in times of national emergency -- specifically in times of war -- when the executive office has been allowed a larger degree of power than at other times. While the constitutional lawyers through the ages have debated the extent of the presidential "war powers," there is a "constitutional custom" which is not unlike having the vice president become president in the event of the president's death. Contrary to "popular notion," the 83 words in Article II, Section I, Clause 5 do not specifically state that the vp becomes president, though in practice this has become the custom. (Four Days in November; Staff of New York Times; 2003; page 172.)
Thus, Schlesinger's book "does not deal systematically with all the facets and issues of presidential power. ...Nor does it deal primarily with the shift in the political balance between Congress and the Presidency .... It deals essentially with the shift in the constitutional balance -- with, that is, the appropriation by the Presidency, and particularly by the contemporary Presidency, of powers reserved by the Constitution and by long historical practice to Congress.
"This process of appropriation took place in both foreign and domestic affairs. especially in the twentieth century, the circumstances of an increasingly perilous world as well as of an increasingly interdependent economy and society seemed to compel a larger concentration of authority in the Presidency .... above all, from the capture by the Presidency of the most vital of national decisions, the decision to go to war." (pages viii-ix)
Schlesinger notes how in the 1950s, the executive office moved towards greater authority to use intelliegence agencies to spy upon American citizens. The people were told that this was required to protect their safety and to insure their civil rights. They were told that the country no longer was confronted by an enemy as limited as the Nazis; now they were threatened by the communist menace, which included potential domestic enemies. This sounds very similar to today's message that we no longer face the limited enemies of the past, and that today's demons include potential domestic enemies.
It is interesting to note that during the Eisenhower administration, because of fears the communists had nuclear weapons that threatened Washington DC, plans were made to have a "shadow government" run the country on an emergency basis -- if the nation's capital was indeed attacked.
{3} "Perhaps it is a universal truth that loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." -- Madison to Jefferson; 5-13-1798;(The Complete Madison; 1953; page 258)
In the past two years, in a series of essays on this blog and on the political discussion forum the "Democratic Underground," I have suggested that many of the current problems in the executive branch stem from the corruption of the Nixon years. Nixon, of course, was Eisenhower's vice president, and there are some fascinating connections between the "shadow government" proposed in the '50s, and domestic spying.
In a recent essay on VP Cheney, I quoted from James Bamford's "A Pretext for War," his 2004 book on "9-11, Iraq, and the abuse of America's intelligence agencies." Bamford traces the up-graded plans for a "shadow government" which took place under the Reagan administration. He notes that Dick Cheney played a significant role in this planning.
In the past week, Bamford has been interviewed on numerous shows, primarily on MSNBC, about the NSA. This is in part because in 1982 he published "The Puzzle Palace," a book on America's most secret intelligence organization that the NSA actually tried to suppress. Bamford has also worked as an Investigative Producer for ABC's World News Tonight; and has written extensively on the Iran-Contra scandal, the Korean Airlines shootdown, and the mafia.
Perhaps we should look closer at one section of The Puzzle Palace.
{4} "Following his denunciation of Hoover, Huston, in an attachment entitled 'Operation Restraints on Intelligence Collection,' and labeled 'Top Secret/Handle Via Comint Channels Only,' set out his recommendations on which restraints the President should lift. Of the first four, three dealt, significantly, with the NSA."
--The Puzzle Palace; Bamford; page 346.
In the years before the Watergate scandal became well-known, the Nixon White House was obsessive about gathering secret information on all "enemies" -- including political opposition. The later investigations revealed that in 1970, Nixon had a young White House aide named Tom Charles Huston come up with a plan that would allow intelligence agencies such as the FBI, CIA, NSA, and MI use electronic surveillance, illegal opening of mail, and unauthorized break-ins to keep track of "domestic security threats." Huston wrote a memo to Nixon that stated these actions were "clearly illegal." Still, Nixon gave his approval, until FBI Director Hoover protested.
Bamford notes, on page 348, "Just over a week later, on July 23, Huston put the final touches on the plan and sent it off via courier to various agencies. When Gayler, Tordella, and Buffham received their copies, there was, no doubt, a victory celebration. From the very first, Tordella had regarded Huston and the ICI meetings as, in his own words, 'nothing less than a heaven-sent opportunity for NSA.' Now they had, in black and white, the presidential authorization to do what they had been doing all along. In addition, Tordella could once again order embassy buggings and break-ins from the FBI."
Hoover no doubt understood the Huston Plan would put his agency in legal jeopardy if the criminal activities were uncovered. Yet it is worth noting that Mark Felt, who was later convicted for "black bag jobs," found Huston offensive. In "The Secret Man," Bob Woodward notes that the man known to history as "Deep Throat" would later write "that he considered Huston himself 'a kind of White House gauleiter over the intelligence community.' The four-inch-thick Webster's Encyclopedic Unabridged Dictionary defines gauleiter as 'the leader or chief official of a political district under Nazi contro'." (page 34)
{5} "The whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man, but to depend upon the counsel of all." -- Woodrow Wilson
One of the people most upset by the Watergate scandal was Dick Cheney. Unlike the vast majority of Americans, Cheney viewed it as an infringement on executive powers. He did not support the efforts to re-establish a constitutional balance of powers among the three branches of the federal government.
In "A Pretext for War," Bamford documents how the during the Reagan years, the old plan for a "shadow government" made in the Eisenhower era, was updated. "Given overall responsibility for the secret government was Vice President George H. W. Bush, with Lt. Col. Oliver North, a key player in the Iran-contra scandal, as the National Security Council action officer. The operation was hidden under the covert name 'National Program Office,' ....Among the key players in the shadow government were Dick Cheney, Donald Rumsfeld, and James Woolsey.
"At the time, Cheney was a congressman from Wyoming; Rumsfeld was CEO of G.D. Searle & Co., ....and Woolsey was a lawyer in private practice ......The existence of the secret government was so closely held that Congress was completely bypassed. Rather than through legislation, it was created by Top Secret presidential fiat. In fact, Congress would have no role in the new wartime administration." (pages 72-4)
President Bush1 kept the NPO going; however Clinton, recognizing that the Cold War was over, ended it. The Bush2 administration would reinstate it before 9-11, although there was no notice to congress. In fact, in the morning hours of 9-11, the president and vice president made the NPO operational: numerous representatives of executive branch departments and business leaders were taken from Washington DC and brought to underground bunkers, and the "shadow government" took control of America.
{6} "Bush acknowledged yesterday that the administration had taken extensive measures to guarantee 'the continuity of government,' after it was revealed that about 100 top officials, spanning every executive branch department, had been sent to live and work in two fortified locations on the East Coast. "
-- "Congress Not Advised of Shadow Government"; Amy Goldstein and Juliet Eilperin; The Washington Post; 3-2-02
In early March, 2002, The Washington Post broke the news that the Bush administration had instituted a "shadow government" on 9-11. It was confirmed that the administration did not inform the House or Senate. In fact, CBS News reported on 3-2 that "civilins deployed for the operation are not allowed to take their families and may not tell anyone where they are going or why." These restrictions are very similar to those that VP Cheney gave congressional leaders such as Senator Rockefeller on the domestic spying. This is not a coincidence.
CBS reported, "The government-in-waiting is an extension of a policy that has kept Vice President Dick Cheney in secure, undisclosed locations away from Washington. Cheney has moved in and out of public view as threat levels have fluctuated."
The Washington Post reported that the administration, which had not notified the House or Senate in the six months the "shadow government" had been in power, had rotated officials every 90 days. Their article also noted that some members of congress had expressed concern that the administration had not informed them of this drastic action.
"There are two other branches of government that are central to the functioning of our democracy," the article quoted Rep. William Delahunt (D-Mass) as noting. "I would hope the speaker and the minority leader would at least pose the question, 'What about us?' "
{7} "Only hours after the September 11 attacks, the administration installed a 'shadow government' of about a hundred senior executive branch officials to live and work secretly ... White House chief of staff Andrew Card directs the shadow government from the White House, where he is immune from giving testimony to Congress (have we heard this before?). ....Of course, this shadow government consists of one branch only, the executive branch. .... (T)he Congress has not sanctioned the shadow government, nor were members of Congress even made aware of its existence until the story was leaked in March 2002. This shadow government has been described as an 'indefinite precaution,' which can mean anything. While a few newspaper stories appeared in March 2002, very little new information has been reported since then. The shadow government is presumed to continue its operation outside of congressional oversight."
--Losing America (confronting a reckless and arrogant presidency); Senator Robert Byrd; 2004; pages 78-9.
Senator Byrd and John Dean are two of the only people brave enough to report on the shadow government, besides Bamford. In "Worse Than Watergate," Dean has a section "Hiding and Politicizing a Contingent Government," on pages 120-124. He notes that immediately after the 9-11 attacks, many in the executive branch were concerned with the possibility that al Qaeda could strike Washington DC with one of the two or more "Soviet-manufactored suitcase nukes (which) may have fallen into bin Laden's hands." (page 123) Dean lists several foreign intelligence sources that were convinced that some of the more than 100 of these bombs, capable of destroying a city the size of Washington DC, had likely been bought by al Qaeda.
The original "shadow government" plans made under Eisenhower, as well as those up-dated under Reagan, were specific responses to a nuclear attack. While many Americans believe that Usama bin Laden is a CIA creation, the article "September 11, 2001 (A Tuesday)," by Gore Vidal, which The Nation refused to print, noted, "Where does Osama's money now come from? He is a superb fund-raiser for Allah but only within the Arab world; contrary to legend, he has taken no CIA money." (See: "Perpetual War for Perpetual Peace," by Vidal, 2002, page6.) Certainly, the administration believed on 9-11 and shortly thereafter that there was a serious chance of Washington being attacked, as Dean details so well.
{8} "There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves -- and lose their roughness and spirit of defiance -- Tyranny may enter -- there is no charm, no bar against it -- the only bar against it is a large resolute breed of men."
-- Walt Whitman; Notes for Lectures on Democracy; 1928; page 58.
Schlesinger writes that, "In that spirit I would argue that what the country needs today is a little serious disrespect for the office of the Presidency..."(page 411) A reasonable person could understand why the administration took steps to try to protect the country, including Washington, in the hours and first days after the 9-11 attack. Yet the Constitution makes clear that these types of actions are only to be taken until such time the congress can be consulted. The administration moved to strip the congress of power, and to exclude the judicial branch from any role beyond that which the executive outlined to meet its needs. This included the intelligence agencies ignoring the FISA, and spying on US citizens.
It is no coincidence that the New York Times also reported on the FBI's spying on domestic groups that were defined as "activists" in politcal and social issues. As the Nixon years proved without a doubt, executive grabs for power beyond what the Constitution defines leads to efforts to target political opponents. The outing of CIA operative Valerie Plame is the most obvious example of the Bush2 administration's illegal abuses of intelligence for political purposes.
But it is not the only example. In a letter to the editor of the New York Times, Anthony Romero, the executive director of the ACLU, wrote, "With so many unanswered questions, the only way to get to the bottom of this controversy is to appoint a special counsel with sufficieshadow governmentnt independence and legal authoricontext of the ty" to investigate the administration. I think it is clear the controversy must be viewed in the context of the "shadow government."