NSA spying is legal because once upon a time Dick Cheney's lawyer said so in secret documents that later vanished

Throughout the past weeks of revelations regarding the NSA and other agencies spying on millions of Americans, a bipartisan clique of hawks in both the Obama administration and Congress have repeatedly stated that the secret survellance practices are legal. The NSA director, General Keith Alexander, has already lied to Congress once that can be proven, without even a threat of sanction. The UK Guardian has released new documents today that show the legal justification for these survellance was so secret the former NSA director may have never actually read them.

The Guardian released the NSA Inspector General's report on the legalities of certain ongoing wiretap programs. It reveals without a doubt that as time progressed, intelligence gathering on people around the world increased, restrictions relaxed, and successive secret legal opinions normalized and regularized what was originally a secret temporary emergency measure. Federal judges and the vast majority congressional Democrats enthusiastically approved the measures without ever actually examining the legal underpinnings due to the reported success of the programs.

Immediately following the September 11 attacks, General Hayden began a very limited wiretapping program focused strictly on Afghanistan. Sometime in the first week of October 2001, Vice President Dick Cheney, through CIA director George Tenet, asked if the NSA could do more. According to the classified report released by the Guardian, Hayden replied that the NSA had no satutory authority to do more. Tenet asked what more could the NSA do if given greater authority. According to Hayden and the report, these telephone conversations between the agency directors were not documented.

On September 20, 2001 General Hayden wrote to Alberto Gonzales, then counsel to President Bush, requesting that a bill to be proposed to Congress amending the 1978 FISA law. According to the NSA there is no record of Gonzales having ever responded. The leaked report offers no official reason why changes in the FISA law were not proposed to Congress, but states: “Anecdotal evidence suggests that government officials feared the public debate surrounding any changes to FISA would compromise intelligence sources and methods.” The Obama administration continues to promulgate this same basic argument to this day to stifle all criticism.

On October 4, 2001, the Office of the President issued a finding of an extraordinary emergency granting the NSA limited domestic wiretapping authority for 30 days. This authority has been renewed and expanded by memorandum ever since. “Early on, personnel worked under the assumption that the Authorization was temporary and that operations would stop in the near future. After it became evident that the Authority would be continuously renewed, management focused on designing processes and procedures for Program activity.”

General Hayden was “surprised with a small 's'” when the authorization was signed on October 4, 2001. On that same day, the United States informed our NATO alliest at a summit in Brussels that we would be using assassination, extraordinary rendition, secret prison and torture. The September 17, 2001 memo authorizing these violations of international law and war crimes were written by the same person who wrote the wiretapping memo, David Addington. Addington was counsel to the Vice President at the time and later became Cheney's Chief of Staff after the conviction of Scooter Libby for leaking classified information.

Addington is the subject of a documentary, Cheney's Law, that demonstrates he is a staunch proponent of the Unitary Executive theory. The theory holds that nothing the President does in wartime is unconstitutional. Thus if the president tortures, in wartime, even though, the 8th amendment "cruel and unusual punishment," and he Conveant Against Torture prohibits it, then it is legal until the Supreme Court rules it unconstitutional. The problem with this theory rests with the fact that if the activity is secret, the Supreme Court may never get to rule unless there is a whistleblower.

The wiretapping program ramped up quickly and by October 8, 2001 key NSA personnel had been briefed on the fact that secret authorization existed. According to the released document, “General Hayden said he did not share specific content of the Authorization but relayed key information” and the “Authorization had been reviewed by the NSA's General Counsel.” The latter statement turns out to be contradicted by timelines found later in the leaked report.

The Authorization and its periodic renewals were hand-carried to General Hayden or picked up personally by him. They were placed in his safe. According to the leaked report they were “Personally drafted by the Vice President's counsel.”

On October 11, 2001, the NSA's General Counsel briefed two of his key subordinate attorneys on the program. They concurred with its legality but the NSA's office of General Counsel “did not formally document it's opinions or legal rationale.”

This authorization, and its renewals were bolstered by a second legal memorandum by the Department of Justice (DOJ) Office of Legal Council (OLC) written at an unknown time by persons unnamed in the leak. According to the report, “The NSA did not have access to early DoJ OLC opinions supporting the Attorney General's statement that the [program] was legal.” It appears that nobody at the NSA wanted to read them: “General Hayden, the NSA lawyers and the Inspector General agreed that it was not necessary for them to see the early opinions in order to execute the terms of the Authorization.” Thus, without actually knowing why it was legal to ignore the Constitution and several acts of Congress, the intelligence services did it because Dick Cheney's lawyer said it was legal and John Ashcroft's lawyers later agreed. It is not clear whether DoJ lawyers actually read the original legal opinions authored by Addington.

The oaths taken by the NSA's lawyers both as government employees and as officers of the court were further broken when they actually asked to see the legal authority under which they were operating and were rebuffed by Addington twice, once in 2001 and again in 2003: “NSA General Counsel Robert Dietz asked the Vice President's Counsel if he could see the opinion. Even though Mr. Dietz's request was denied, the Vice President's Counsel read a few paragraphs to him over the classified phone.” The 4th amendment evaporated based on a secret phone call from Dick Cheney's lawyer without a single document changing hands. The subsequent 2003 attempt by the NSA to review the legal authorization was it was operating under was similarly rebuffed in person by Addington via a surprise personal appearance at an NSA meeting to discuss compliance with the law ahead of an audit by the Agency's own inspector general. It is not known how Addington knew the meeting was taking place or if he had the specific clearence to attend. The film Cheney's Law documents that Addington used similar tactics to intimidate opponents of torture during the Bush adminstration.

The leaked document further claims that General Hayden never asked for or read the legal opinion under which his agency was operating. “The NSA's deputy General Counsel stated that it was his understanding that the opinion was never shared with the NSA because it was considered confidential legal advice to the President.” Thus an opinion, which was considered to be “advice” secretly trumped the whole world’s right to privacy because reading it would violate the privacy of the President and presumably the Vice President. On the word of one man, David Addington, the laws of the United States became the personal property of its chief executive or sovereign and his immediate confidants.

Initially three members of Congress were briefed: Senators Robert Graham and Richard Shelby along with Congresswoman Nancy Pelosi. Six months later, Senators Daniel Inouye and Theodore Stevens were also briefed. None are reported to have actually read the legal justification for the program. It appears as though they were simply informed of it's existence and alleged legality and reputed effectiveness.

Judicial review of the program did not begin until 4 months after it's inception in late January of 2002. The head of the FISA court, Judge Royce Lambert was briefed by General Hayden and the DoJ's OLC. “Hayden said this briefing was prompted by concern expressed by the DoJ that [program]-derived information might be used in FISA applications,” according to the leaked document. Thus the Director of the NSA acted to prempt and negate any challenge that might be brought unwittingly through a later court case. A major route to challenging the legal authority had been closed before it could be opened.

Lambert's successor as Chief Justice of the FISA court, Judge Kollar-Kotelly was also briefed upon assumption of that post. She later stated that she was shown a short memo on the legality of the program but was not allowed to retain it for study. Thus judicial review of a massive spying program was reduced to a few sheets of paper read by a judge once and never reflected on.

As the Bush administration raced forward through war and a questionable election, various aspects of the program were codified into amendments to existing laws or secret interpretations of the Patriot Act. The underlying legal principles have never been challenged. They have never even been read except by their author and his perhaps his clients, the then-President and Vice President.

The most massive spying program the world has ever seen came into existence as a temporary legal fiction conjured by David Addington, a man Colin Powell reportedly described like this: “He doesn’t care about the Constitution.”

The never-read memos the NSA's report refers to are both privileged and classified. They may also have been destroyed when a fire broke out in the office of the Vice President in late 2007. What is known is that when constitutional scholar Obama speaks of the legality and congressional oversight of these programs, he does not do so from a position of knowledge.

The last 11 and a half years have seen a parallel expansion of surveillance programs and a papering over of their never tested legal justifications. We now know that those justifications are themselves secret and quite possibly destroyed. They can however be reduced to the simple phrase “Because Dick Cheney said so."

Somewhere, perhaps in the charred remants of an office fire now long discarded, is the justification for the Chief Executive of the United States to violate his oath to uphold and defend the Constitution. The Constitution is not only has been murdered, the charred remains of the instrument of it's demise are burried in an secret unmarked grave.


Bob Fitrakis is the Editor in Chief of the Columbus Free Press. He is a Full Professor of Political Science and an attorney in national security and human rights issues.

Gerry Bello is the chief researcher and National Security and Technology Editor for the Columbus Free Press. He has a degree in Computer Security from Antioch College. He is not depressed or a bad driver.

Date Originally Published: 
Friday, June 28, 2013
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