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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, the general 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 seems to have 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 can justify it. All this makes things a lot easier for Cheney and Addington to work their will on the bureaucracy. Another gift from Bill Casey. Not only did he corrupt analysis on the substantive side of the Agency; he also deprofessionalized the operational side, promoting yes-people, such that you end up with the bunch of amateurs caught kidnapping and “rendering” a suspected terrorist in Italy. And the corruption included the Office of General Counsel. Who is Stepping Up to the Plate? An African American judge, Anna Diggs Taylor of the U.S. District Court in Detroit ruled on Aug. 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 surveillance program continues, since the Sixth Circuit Court has granted a stay. In keeping with Thomas Jefferson’s warning that the only remedy for the kind of situation in which we find ourselves is removal of those 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 interesting that seven of the 11 co-sponsors are African-American, with black women leading the way. Seems they have a more highly developed sense of the implications of the oppression that comes of ignoring, breaking, or bending the law. They have an excellent model in the late Barbara Jordan, D-Texas, an African-American legislator 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.’
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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