Subpoenas from the Hill are flying downtown into executive office buildings like paper airplanes, but the potential for obfuscation and delay is immense, and the danger to the Republic speaks for a more urgent, simpler approach. As hundreds are killed each day in the misbegotten war in Iraq with no end in sight, the same officials who brought us Iraq—with the vice president in the lead—are salivating for war on Iran.
There is a blizzard of possible charges warranting impeachment, and that is part of the problem. It’s not only outrage fatigue, it is sorting through what Mr. Jefferson called “a long train of abuses and usurpations” to select the most heinous, when it is difficult to discern which of them most offends our Constitution and the rule of law.
Suggestion: From the most heinous, let’s select one for which there is ready proof—one not susceptible of the kind of diddling that has been so prevalent in Washington these past several years. Why not focus on a high crime that the Bush administration has already admitted to, with claims it is above the law and the Constitution? How about electronic eavesdropping on Americans without the court warrant required by law.
This offence has the additional advantage of precedent. It was included in the second (of three) Articles of Impeachment voted against President Richard Nixon by a 28 to 10 vote in the House Committee on the Judiciary on July 27, 1974. The charge was “electronic surveillance of private citizens” in violation of the law (in addition to other illegalities). Impeachment Article 2 stated that in these abuses:
“Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.”
Similarly, as William Goodman, former legal director of the Center for Constitutional Rights, has suggested, pride of place among the charges against officials of the George W. Bush administration should be given to the crime of unlawful electronic surveillance; namely, failing to take care that the laws are faithfully executed, by directing or authorizing the National Security Agency and various other agencies within the intelligence community to conduct electronic surveillance outside the statutes Congress has prescribed as the exclusive means for such surveillance.
What makes this a no-brainer is that the administration has proudly admitted to sponsoring an electronic surveillance program that violates the Foreign Intelligence Surveillance Act (FISA) of 1978. On December 17, 2005, a day after the New York Times front-paged an article on the administration practice of eavesdropping on Americans without the required court warrant, administration front man George W. Bush bragged about authorizing the National Security Agency to eavesdrop on U.S. citizens without the court order required by FISA. The president stated defiantly, “I have reauthorized this program more than 30 times since the September 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.”
By what authority did Bush ignore the FISA requirement for a court order for such eavesdropping? Bush cited “the authority vested in me by Congress, including the Joint Authorization for Use of Military Force [and] constitutional authority vested in me as commander-in-chief.” That these arguments are quite a stretch is clear from the adjectives used by respected jurists to describe them. “Ludicrous” is the one most often applied. “The program appears on its face to violate existing law,” wrote a group of distinguished lawyers, several of whom worked in senior positions in Republican as well as Democratic administrations.
Anatomy of a Crime: Who is Responsible?
While the buck still stops in the Oval Office, it lingers for an inordinately long time with the vice president. And, clearly, that is the way Bush prefers it. Former Sen. Bob Graham (D-Florida) recalls that when he became chair of the Senate Intelligence Committee, the president told him, “The vice president should be your point of contact in the White House [and] has the portfolio for intelligence activities.” And, sure enough, when the chairmen and ranking members of the intelligence committees were invited to the White House for their first briefing on electronic eavesdropping, they were ushered into the vice president’s office where Cheney chaired the discussion.
One of the authors of the FISA law, longtime NSA director Admiral Bobby Ray Inman (ret.), expressed serious reservations at the flouting of FISA, during a New York Public Library panel discussion on May 8, 2006. “There clearly was a line in the FISA statutes which says you couldn’t do this,” said Inman. He went on to call specific attention to an “extra sentence put in the bill that said, ‘You can’t do anything that is not authorized by this bill.’”
Inman spoke proudly of the earlier ethos at NSA, where “it was deeply ingrained that you operate within the law and you get the law changed if you need to.” As for now, Inman insisted, “What you want is to get away from this idea that they can continue doing it.” He placed the blame squarely on Vice President Dick Cheney, whose attitude he said was: “We don’t need law. The president has authorized these in the past and can authorize them now.” Inman added that this explains why there was no attempt to change the law. Whether Bush eventually decides to change course and work with Congress on this issue will depend on “whether the president walks away from the vice president,” said Inman.
John Dean, no stranger to White House intrigue, also sees Cheney’s hand behind the defiance of inconvenient laws like FISA. Dean’s sources tell him that there is serious doubt that the president and his staff is well informed as to what Cheney is doing, why he is doing it, or how he is doing it. Bush may be the “decider,” says Dean, “but by shaping the debate and controlling the paper flow, Cheney decides what the decider will decide.”
Eminence Grise Behind Eminence Grise
Please welcome David Addington, Cheney’s kemosabe, his main man, his legal adviser of many years, a strong advocate of the “unitary executive” concept invented by the Bush administration to amass power under, well, one executive. Addington worked closely with Dick Cheney on Iran-Contra affair, and played a strong supporting role in ensuring that no one would be held accountable. Addington came in with the vice president as his chief counsel, and became his chief of staff after Lewis Libby left.
Addington is the author of the so-called “torture memo” of Jan. 25, 2002—the one signed by then-White House counsel, Alberto Gonzales, calling provisions of the Geneva treaties on prisoners of war “quaint” and “obsolete.” Assigning a “new paradigm” to the post-9/11 world, that memo advised Bush that he could authorize torture by simply saying that the U.S. would treat prisoners “humanely, as appropriate, and as consistent with military necessity.” This the president did in an executive memorandum on Feb. 7, 2002. (You can download both signed memos in their original form.)
Addington’s legal legerdemain was applied liberally to the issue of warrantless eavesdropping, as well. Most are unaware that Addington earned his spurs from 1981 to 1984 while working in the CIA’s Office of General Counsel (OGC) under Director William Casey, certainly a kindred soul in his disdain for the law—national or international.
The so-called “family-jewels” documents released by the CIA last week provide insight into the corrosive effect of folks like Casey and Addington on the professionalism and integrity of those working in the Office of General Counsel. To be sure, there were liberties taken with law and regulation before Casey and Addington, but there was also considerable sensitivity to the need to observe the law regarding surveillance of Americans. One sees in the internal Agency correspondence reflections of the ethos of integrity that generally prevailed among the lawyers I encountered during my 27-year Agency career.
There were abuses like illegal wiretaps, despite admonitions from directors like William Colby against monitoring American citizens. But the correspondence is replete with examples of operations abruptly shut down after OGC determined they violated CIA statutory responsibilities and guidelines. The documents show, for example, OGC putting the kibosh on radio intercepts that, while carried out abroad, had one terminal in the U.S. Well before the FISA law, senior Agency officials were particularly uncomfortable with widespread electronic surveillance of American citizens. As national security blogger Noah Shachtman has noted, it is clear from the “family jewels” material that most leaders of the Nixon-era intelligence community were able to avoid becoming drawn into the kind of comprehensive, intrusive electronic eavesdropping that would later become a hallmark of the George W. Bush-era intelligence community.
CIA Director Michael Hayden’s timing in releasing the “family jewels” begs interpretation. Without any sense of irony, Hayden told CIA staffers that internal reforms and increased oversight have given the CIA “a far stronger place in our democratic system.” Right. The post-9/11 warrantless electronic surveillance program he devised as head of NSA, at the direction of Cheney and the president tears that claim to shreds. Is it conceivable that Hayden thought he could distract attention from the current lawlessness by highlighting the abuses of the past?
Hayden’s followed illegal orders to create an aggressive NSA program skirting strict 30-year old legal restrictions on eavesdropping on American citizens. As NSA director from 1999 to 2005, he did the White House’s bidding in devising and implementing that program without adequately informing Congress—as required by law. When news of the program appeared in the press, 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.
Hayden, of course, evidences no outward embarrassment. A whiff of conscience showed through his nomination hearing, though, when he flubbed 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 anticipated, 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 no particular acuity is required to figure it out. This is a military officer who had indoctrinated NSA employees with what used to be known as NSA’s “First Commandment”—Thou Shalt Not Eavesdrop on US Citizens; an 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 that one is never required to obey an unlawful order.
That, it seems clear, is why Hayden found it a difficult personal decision. Did the new, post-9/11 “paradigm” created by then-White House counsel Alberto Gonzales and David Addington trump the Constitution? President George W. Bush assured us on Jan. 23, 2006, “I had all kinds of lawyers review the process.” Seems so. The same ones who were concurrently devising ways to “legalize” torture and indefinite detention without due process.
No American, save perhaps Admiral Inman who was present at the creation of FISA, knew the FISA law better than Hayden. Nonetheless, at his nomination hearing General Hayden conceded that he did not even require a written legal opinion to satisfy himself that the new, post-9/11 comprehensive surveillance program, to be implemented without warrant and without adequate consultation in Congress, could pass the smell test. If Addington and Cheney said it was okay, it must be okay. When one of his NSA director predecessors learned what Hayden had agreed to do, he said angrily, “He ought to be court-martialed.” I agree.
Addington’s tenure with CIA lawyers left a residue of malleability that the George W. Bush administration has found very helpful. Intercepting Americans’ communications? Torture? Kidnapping? Extraordinary Rendition? You name it; we cook justification to order. All this makes things a lot easier for Cheney and Addington to work their will on the bureaucracy.
Bill Casey’s heritage is a gift that keeps giving. Not only did he corrupt analysis on the substantive side of the Agency; not only did he de-professionalize the operational side, promoting yes-people, such that we end up with a bunch of amateurs caught kidnapping and “rendering” suspected “terrorist” in western Europe. After Casey and Addington, the corruption included the Office of General Counsel itself.
Who is Stepping Up to the Plate
An African American judge, Anna Diggs Taylor of the U.S. District Court in Detroit ruled on August 17, 2006 that the surveillance program was unconstitutional (against the Fourth Amendment prohibition on “unreasonable searches and seizures”) as well as illegal (violating FISA). She emphasized that “the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution.”
The government appealed Judge Taylor’s decision, and the Sixth Circuit Court granted a stay. Meanwhile, the surveillance program goes on.
In keeping with Thomas Jefferson’s warning that the only remedy for the kind of situation in which we find ourselves is removal of the high officials responsible, some courageous members of the House of Representatives have signed on as co-sponsors of Dennis Kucinich’s (D-Ohio) bill to impeach Vice President Dick Cheney. I find it highly instructive that seven of the eleven co-sponsors are African American, with women leading the way. Seems that those co-sponsors have a much more highly developed sense of the implications of the oppression that comes of ignoring, breaking, or bending the law.
And they have an excellent model in the late Barbara Jordan (D-Texas), an African American congresswoman and educator who made such a valuable contribution while sitting on the House Committee on the Judiciary during the hearings on impeaching President Richard Nixon. I will not soon forget her stirring words on July 25, 1974:
“Earlier today, we heard the beginning of the Preamble to the Constitution of the United States, ‘We, the people.’ It is a very eloquent beginning. But when the document was completed on the seventeenth of September 1787 I was not included in that ‘We, the people.’ I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation and court decision, I have finally been included in ‘We, the people.’
“My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.... [As was said at] the North Carolina ratification convention: ‘No one need be afraid that officers who commit oppression will pass with immunity.’
Jordan then added James Madison’s pointed reminder at the constitutional convention that those who “subvert the Constitution” are “impeachable.”
In Barbara Jordan’s Image...or Tamed?
Congressman John Conyers (D-Michigan), like Barbara Jordan a member of the Committee on the Judiciary in 1974, heard her words then but seems to have forgotten them. There are those who say John Conyers is no Barbara Jordan, no Anna Diggs Taylor—and no Barbara Lee, Maxine Waters, Yvette Clarke, Al Wynn, William Lacy Clay, Hank Johnson, or Keith Ellison, who—together with Kucinich, Jan Schakowsky, Lynn Woolsey, and Jim McDermott—are calling for the impeachment of Cheney.
If true, this is a sad thing, for Conyers is now chair of the House Committee on the Judiciary, with jurisdiction over the impeachment process. Thus, he has real power but, inexplicably, he has chosen to acquiesce in the ban on even bringing impeachment up. That ban was imposed by Speaker Nancy Pelosi (D-California), a person born to such privilege she would not recognize oppression if she tripped over it.
Quick, someone, anyone! Wake John Conyers up. Tell him he has a rendezvous with destiny. Tell him that history is less likely to judge him on his past service, than on how he stands up to oppression and defends the Constitution in this moment...or doesn’t.
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. He is a 27-year veteran analyst of the CIA and co-founder of Veteran Intelligence Professionals for Sanity (VIPS).