In 1971, when Maxwell Taylor, an ambassador at the time and a former military general, was asked what he thought about the people’s right to know what the government is doing, he responded that he “didn’t believe in that as a general principle.” Those with power will forever want to control knowledge, especially in democracies, where public knowledge is a prerequisite to accountability. The recent revelation that President George W. Bush secretly ordered warrantless surveillance of American citizens is a good example of the presidential impulse to both secrecy and the desire for knowledge beyond means that are constitutionally and legally permissible.
But President Bush’s actions are just the latest in a litany of wiretap and surveillance abuses engaged in by presidents and federal agencies over the last 75 years. Franklin D. Roosevelt, through J. Edgar Hoover, bugged John F. Kennedy, Jr., during his clandestine sexual encounters with Inga Arvad, and wiretapped everyone from the always-suspect cultural Left to the Los Angeles Chamber of Commerce. President Truman, from an excessive concern with the lingering influence of Roosevelt’s administration, engaged in electronic surveillance of former Roosevelt aids. The Kennedy Administration was no less tempted, and was the first known to have bugged a sitting member of Congress.
Up until 1972, all presidents from FDR to Nixon claimed the right to unrestricted surveillance of citizens and others for national security purposes, and there were virtually no legal restrictions on private efforts to wiretap citizens and place them under surveillance. This led to a professional class of wiretappers, a class one chairman of the Federal Communications Commission decried as “the least admirable of the groups of creatures that qualify for membership in the human race.” But in 1972, in the Keith Case, the U.S. Supreme Court decided that the President had no constitutional authority to bug citizens for domestic security purposes, and that decision along with the disclosure of Richard Nixon’s extensive abuse of surveillance for personal and political reasons caused Congress to intervene.
The Congress passed the Foreign Intelligence Surveillance Act, which is the sole source for authority to engage in national security surveillance of persons in the United States. Eleven FISA judges hear applications for warrants to engage in physical surveillance and wiretaps on targets who appear to be acting as agents of a foreign power. The FISA is a very forgiving statute, and only three warrant applications have been denied out of some 20,000 submissions since 1978.
The Supreme Court’s decision in the Keith Case and FISA act together to insure that presidents do not engage in warrantless surveillance of U.S. citizens. A return to the old ways coupled with the vastly increased electronic capacity of the modern era would mean that presidents could engage in extensive surveillance of almost an unlimited number of citizens for illicit purposes. Indeed, this apparently has already occurred. I am the senior adviser to the National Security Whistleblowers Coalition, an organization run by Sibel Edmonds and comprised, except for me, exclusively of whistleblowers from agencies such as the Central Intelligence Agency, Department of Homeland Security, Federal Bureau of Investigation, Defense Intelligence Agency, National Security Agency, and the like. One of our members related to me that he was tasked to FISA collections targeting public officials in order to gather information for purposes of manipulating political processes. Another of our members is Russ Tice, who in the last several days has come forward to admit that he is one of the sources of information for the New York Times revelation of President Bush’s wiretap scheme carried out by the National Security Agency. He is now the target of a criminal investigation and expects a very rough road ahead.
Tice is a life-long Republican with a straight-up-and-down stars-and-stripes character, and his only purpose in coming forward was to alert Congress to what he believed to be unconstitutional surveillance of United States citizens. He revealed no classified information and will reveal no such information except to the congressional intelligence oversight committees; the committees explicitly tasked with oversight of national security activity. Information mysteriously leaked to Congress and the news media that Tice suffers from “schizophrenic paranoia,” which, of course implies that for this reason he lacks credibility. Any accusation of mental illness in our culture immediately discredits the accused, whether the accusation is true or not.
I have talked with Tice on numerous occasions and I remember the first time he revealed to me that the government accused him of mental illness. We were sitting in Pentagon City mall drinking smoothies and began to chuckle at the ridiculousness of the allegation, and soon we were laughing out loud. There is little else to do, since once the accusation is made it has a tendency to stick. Tice, a 20-year intelligence agent, is perfectly sane, with a calm analytical character. Like other whistleblowers I have talked with, he is terribly disillusioned with a government and a country that he dearly loves. The last time I talked with Tice was just a few minutes before I sat down to write this column, and he had just finished an interview with Chris Matthews on Hardball. [link] He is still disillusioned, but he also sees hope.
Nine months before the NSA claimed Tice was mentally ill it found after a mandatory periodic mental health examination that he was perfectly normal. What happened in the intervening nine months? Tice, according to regulations, reported suspicious activity on the part of a co-worker. Tice worked with Special Access Projects, or SAPs, the most secretive activities of the U.S. government, where security is paramount. His co-worker exhibited classic signs of compromise: living beyond apparent means; accessing classified computers after hours and in areas not related to her work; travel abroad to suspect locations. Unfortunately for Tice the co-worker’s mother had occupied extremely high-level policy-making positions in various intelligence agencies.
After Tice reported his co-worker’s activity, he was referred to a psychologist for engaging in unwarranted suspicion. Setting aside for the moment that Tice was in the suspicion business, he was not referred to just any psychologist, but to a special mental health professional cleared to hear classified information and employed by the NSA. Over the years, many allegations have been made that NSA psychologists work with the agency to identify “troublesome” employees and have the employees declared mentally unfit for access to classified information. Without a clearance and access, the employee is out of a job. Tice had become a “troublesome” employee and the same psychologist who had found him perfectly normal nine months earlier now diagnosed him with “compartmented” paranoia, an apparently novel diagnosis that no one seems to have ever heard of. Apparently, he was paranoid because of his suspicions of his co-worker. This reminds me of case notes I once read by an agent interpreting intercept contents on a wiretap. The agent noted that the target of the wiretap exhibited paranoid tendencies because one of the intercepts caught the target musing that he may be under surveillance by the government.
After his experience with NSA psychologists, Tice went to a civilian psychologist for independent testing. The independent test found him to be free of mental illness. But NSA finally terminated Tice, and even though he has been out of work for the better part of a year and was smeared and brutalized by his former employer he still agonized in coming forward with information that the President had authorized unconstitutional surveillance of United States citizens.
One of the things that pushed Tice to the point of coming out was the claim by President Bush that only a few thousand people over the last three years have been affected by the NSA surveillance policy. Tice told me months ago and has now told the country through numerous news interviews over the last several days, that the number of intercepted Americans is in the millions, not the thousands, and that large telecommunication companies are involved in aiding the NSA.
You may ask how this affects you, that you have little to hide, but the program is quite insidious. All it takes is a minor change to an NSA algorithm to listen not only for information of terrorist activity but for information on people who are gay, or having extramarital affairs, or who are making small drug buys. Obviously technology may link telephone numbers with personal information of the user, so that high interest communications may be segmented off and “specially” handled.
For example, suppose a federal judge is found to be carrying on an extramarital affair, or a district attorney is intercepted buying marijuana for personal use, or an elected public official is a closeted gay? That information may be saved and utilized to manipulate judicial and political processes. This was J. Edgar Hoover’s dream. And since President Bush is engaging in his surveillance without judicial oversight and under no recognized process there is nothing to restrict how the information is being used. Bush says that he needs this power to protect our national security, but threats to national security come from the inside, too. A runaway executive branch is more dangerous to the United States than a dozen Osama Bin Ladens.
A little over fifty years ago, Attorney General Brownell said that “considerations of internal security and the national safety are paramount and, therefore, may compel the unrestricted use of this technique [wiretaps] in the national interest.” Since Richard Nixon, no president has made such a claim. President Bush has taken one giant, unconstitutional step back in time. A step back to when secret, political, and unseemly executive branch surveillance was used as a political tool to undermine democratic processes. As I prepared to send this column in to the editor, Russ sent me an email explaining that two FBI agents showed up at his door today. They did not have an arrest warrant, but that may change. Tice is being excoriated, subjected to investigation and smeared because he dares to disagree with Ambassador Taylor and to hold the heretical view that the public does indeed have the right to know what the president is doing in the name of national security.
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The opinions expressed here are Weaver’s personal views and are not in any way attributable to the University of Texas at El Paso or any of its various units.
Weaver is associate director of faculty for the Institute for Policy and Economic Development in the Center for Law and Border Studies at the University of Texas at El Paso, where he specializes in executive branch secrecy policy, governmental abuse, and law and bureaucracy. He also serves as the senior adviser to the National Security Whistleblowers Coalition.
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Related links:
-- ABC News story Jan. 10 on Russ Tice being a source for the NY Times stories on governmental spying
