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The so-called “family jewels” 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, but before Casey and Addington there was also high sensitivity to observing the letter of the law regarding surveillance of Americans. One sees in the correspondence reflections of the ethos of 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 an OGC determination that they violated CIA statutory responsibilities. The documents show, for example, OGC putting the kibosh on radio intercepts made from abroad, but with one terminal in the U.S. Well before the FISA law, 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 many in the leadership of the Nixon-era intelligence community were relatively successful in avoiding 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. Martinet 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, Hayden did the White House’s bidding in devising and implementing that program without adequately informing Congress—as required by law. When an unauthorized disclosure revealed the program to 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 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 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 it requires no particular acuity 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 U.S. 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 one must never obey an unlawful order.
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. During his 27-years as a CIA analyst, he chaired NIEs: he is now on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS).
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