CIA Wiretapping, FISA, & an Obama Presidency

With the genuflection of the Democratic-led Congress to the Bush Administration for near-unlimited warrantless wiretapping privileges, I thought I would add some historical perspective to the ongoing analysis of this debacle. The fight against executive branch tyranny goes back a long time. The "flip" by Democratic presumptive nominee Barack Obama that led him to vote for the new FISA bill was not an electoral nod to a conservative electorate, but a necessary ticket to be rendered for entrance to the top spot at the apex of the national security state.

The amazing folks over at National Security Archive, who have posted the entire "family jewels" -- documents of CIA misdeeds in the 1950s-1970s -- and much, much more on the operations of the military and intelligence agencies, posted the link to the following documents. It discusses themes and facts highly relevant to the current debate on FISA, and is partially transcribed here as a public service and contribution to political discourse. The full document can be found here.

The January 26, 1973 Memo

This memo is from Lawrence Houston, then General Counsel of the CIA, to the Acting Chief, Division D. The subject? "Intercept of Communications in the U.S." Remember: this was written before the original FISA law was implemented later in the 1970s. According to a Wikipedia entry, "Division D was the joint CIA-NSA collection effort, where CIA would use clandestine operations personnel to emplace NSA SIGINT sensors." Earlier revelations of Division D activity has been covered by Wired Magazine. The New York Times also has published on CIA wiretapping of reporters, including a discussion of the activity as approved by the Kennedy administration (a fact inconvenient to those who hold up the Democrats as saviors from the GOP, which certainly isn't the case when it comes to National Security issues).

In the transcribed memo below (which is partial, please see here for full text), note the "exceptions" on prohibitions to wiretapping mentioned by Mr. Houston. Do they sound eerily familiar?

1. In referent you request our views as to the legal aspects of a radio telephone intercept activity carried on at our communications site [two or three words redacted]

2. The basic law is contained in section 605 of the Communications Act of 1934, 47 U.S. C. 605, which prohibits interception of any radio communication without the authorization of the sender and also prohibits divulging the substance thereof to any person. Chapter 119 of Title 18, U.S.C., makes the interception of any wire or oral communication a crime punishable by $10,000 or five years' imprisonment, or both. There are two exceptions to these prohibitions:

a. The first provides for application through the Department of Justice to a Federal court for a court order authoizing such interception for specific purposes in connection with law-enforcement duties. Since this Agency is prohibited by statue from any police or law-enforcement activities, obviously we cannot operate under this exception.

b. The other exception is contained in section 2511 of Title 18, U.S.C., at subsection (3). This provides that the prohibition cited above on interception shall not limit the constitutional power of the President to take such measures as he deems necessary to protect against attack, to obtain foreign intelligence information deemed essential to the security of the United States or to protects such information, and to protect the United States against overthrow by force or other unlawful means or against any other clear and present danger to the structure or existence of the Government.

3. The type of information you describe in your memorandum does not appear to fall within any of these categories and since its ultimate destination is BNDD [Bureau of Narcotics and Dangerous Drugs], it appears to be collection for law-enforcement purposes, which as noted above is barred to this Agency by statute....

The May 7, 1973 Memo

A memorandum from the Chief of CIA Division D to the Deputy Director of Operations on May 7, 1973 was written to discuss "Potentially Embarrassing Activities Conducted by Division D."

There is one instance of an activity by Division D, with which you are already familiar, which the Agency General Counsel has ruled to be barred to this Agency by statue: the collection [approx. four words redacted] of international commercial radio telephone conversations between several Latin American cities and New York, aimed at the interception of drug-related communications. The background on this is briefly as follows: [about five or six lines excised]. Therefore on 29 September 1972 NSA asked if Division D would take over the coverage, and on 12 October 1972 we agreed to do so. On 14 October 1972 a team of interceopt operators from the [about seven or eight words redacted] began the coverage experimentally. On [unclear date] January 1973, NSA wrote to say that the test results were good, and that it was hoped this coverage could continue.

Because a question had arisen within Division D as to the legality of this activity, a query was addressed to the General Counsel on this score... With the receipt of his reply... the intercept activity was immediately terminated. There has been a subsequent series of exchanges between Division D and the General Counsel as to the legality of radio intercepts made outside the U.S., but with one terminal being in the U.S., and the General Counsel has ruled that such intercepts is also in violation of CIA's statutory responsibilities. [About four or five lines excised] Since the [few words redacted] link being monitored carries a large number of totally unrelated conversations, the operators do intercept other traffic, frequently involving U.S. citizens -- for example, BNDD staffers talking to their agents. I have described this situation to the General Counsel, and his informal judgment was that, as long as the primary purpose of the coverage is a foreign target, this is acceptable. He suggests, however, that it might be desirable to inform the Attorney General of the occasional incidental intercept of the conversations of U.S. citizens, and thus legalize the activity.

There's more, but I ask that you go to the NSA [National Security Archive, not National Security Agency -- there's no relation] link above to read the whole thing.

Of course, it's widely believed that the release of the CIA "family jewels" documents remained highly selective. We know, by their own testimony, that the CIA destroyed thousands of documents related to illegal activities over the years. But, as Noah Shachtman at Wired put it, documents such as those highlighted in the piece you're reading have a particular significance:

Before the release of the "family jewels," some speculated that CIA director Michael Hayden might be allowing the documents to see the light of day, to make today's operations seem meek, in comparison. But, at least in this one small area, yesterday's spooks seem a lot more scrupulous than some of today's. After all, it was Hayden himself who authorized the surveillance programs that wound up ensnaring so many American citizens in their nets.

Obama and the National Security State

Millions of people will be making a decision soon regarding a choice for President of the United States. McCain is certainly a clear choice for continuation of the dangerously insane Bush policies. Obama's vote on the FISA bill has put serious doubt into the minds of many as to whether he will be different. (He did vote for amendments to limit the Bush-supported bill and take away telecom immunity.) No one has a crystal ball, so no one really knows, and arguments can be made on both sides.

When it comes to domestic policies and competency in government, a very good argument can be made that Barack Obama is the progressive candidate (or the best we can do at this time). But when it comes to national security matters, and the massive influence of military contractors, and the pervasive influence of the Pentagon and intelligence agencies -- even their supremacy, many might argue -- Obama's vote on FISA telegraphs to those who run such agencies and associated organizations that Obama won't go too far in challenging their activities. This is chilling, as the expansion of the infrastructure of the "anti-terrorist" domestic security apparatus is moving along very rapidly.

This is the truth, circa July 2008. What might happen if Obama is elected is anyone's guess. There are many in the power structure of this country that fear that forces unleashed by the belief that a progressive president is in power will not be contained by the Democratic Party, or a Democratic President and Congress. If Obama is elected, elements within the national security and military apparatus will move quickly, in the initial months of an Obama presidency, to force Obama to commit himself to their agenda. He has shown he is willing, but then, he does not have the power yet.

I see little to believe Obama will make the necessary challenge to the national security state apparatus. In any case, he cannot do it alone. He will need the people behind him, an informed people. And in that spirit, I offer this history lesson today.