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Are You Listening?

Obama-ListensWhile Washington and most of the media are obsessed with the botched roll out of Obamacare, a story with much more long-lasting and more profound implications unfolds around us with hardly a passing notice from Congress or many voters.

Here’s a prediction. When the history of the Obama Administration is written, the admittedly monumental screw ups with the health insurance website will get a paragraph or two of attention. The vast network of intelligence gathering – OK, let’s call it what it is spying – that is taking place on the watch of a president who was elected as a civil libertarian will get a full chapter. It’s that important.

It is nearly impossible to keep track of the flood of revelations about the activities of the National Security Agency (NSA), but here are some of the highlights. The New York Times reports that the NSA listened in not only to German Chancellor Angela Merkel’s phone calls, but started doing so years ago when Merkel was merely a backbencher in German politics.

“How the N.S.A. continued to track Ms. Merkel as she ascended to the top of Germany’s political apparatus illuminates previously undisclosed details about the way the secret spy agency casts a drift net to gather information from America’s closest allies,” Mark Mazetti and David Sanger wrote in the Times. “The phone monitoring is hardly limited to the leaders of countries like Germany, and also includes their top aides and the heads of opposing parties. It is all part of a comprehensive effort to gain an advantage over other nations, both friend and foe.”

The news of the spying has already badly damaged the personal relationship between the American president and the German chancellor. The phone call Merkel initiated to express her outrage was, as an Obama aide told the Times, “not easy.” No kidding.

We also know that NSA has been tapping into Google and Yahoo networks, monitoring the phone calls of journalist, gathering millions of bits of data from foreign and domestic phone systems and, most significantly, saying almost nothing – at least nothing truthful – about this gigantic infringement of civil liberties.

When the NSA’s James Clapper speaks his language of evasion reminds you of the once popular television comic Professor Irwin Corey, the absent minded “world’s great authority” who would ramble on speaking nonsense that sounded strangely profound. Corey once opined, appropriate to NSA spying, “If we don’t change direction soon, we’ll end up where we’re going.”

“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Oregon Sen. Ron Wyden asked Clapper a while back during a Senate hearing.

Clapper responded: “No, sir … not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.”

Only after the Edward Snowden revelations did Clapper admit his answer was, as The Atlantic reported “erroneous,” or “the least untruthful” one he could provide. Wyden recently said, “There’s not a shred of evidence today that that would have been corrected [in public] absent the [Snowden] disclosures.”

Normally lying to a Congressional committee – ask Oliver North – is reason to clean out your desk or maybe fix up your cell, but Clapper remains on the job with his efforts now focused on explaining away the spying on Merkel and 30 other world leaders.

Forty years ago another Northwest senator, Idaho’s Frank Church, laid bare the out-of-bounds behavior of the NSA, the CIA and the nation’s other security agencies. And, like the prescient civil liberties advocate he was, Church carefully warned that an American government with the means, in the case of the CIA, to open the mail of American citizens and hatch plots to kill foreign leaders, conceivably could turn that same awesome power on domestic enemies.

Then President Gerald Ford tried repeatedly to blunt Church’s investigation in the 1970’s once telling Church and Texas Sen. John Tower, as Leroy Ashby and Rod Gramer report in their fine biography of Church, that America is “a great power and it is important that we be perceived as such – that our intelligence capability to a certain extent be cloaked in mystery and held in awe.” But Church knew that just the opposite was true. An all powerful and overreaching national security state that employs tactics more and more reminiscent of Putin’s Russia or Saddam’s Iraq is not a recipe for global respect or moral authority.

A great country, secure in the wisdom of its own best instincts and loyal to its creed, could command real respect. “Ours is not a wicked country,” Church said in 1976, “and we cannot abide a wicked government.”

A country that is a force of moral authority in the world doesn’t find itself with a Secretary of State saying what John Kerry was compelled to say this week. “The president and I have learned of some things that have been happening in many ways on an automatic pilot, because the technology is there and the ability is there,” Kerry told a conference in London via video link. “In some cases, some of these actions have reached too far and we are going to try to make sure it doesn’t happen in the future.”

Oregon’s Wyden is a worthy successor to Idaho’s Church and is playing much the same role as he confronts the entrenched power of the national security state. “We will be up against a ‘business-as-usual brigade’—made up of influential members of the government’s intelligence leadership, their allies in think tanks and academia, retired government officials, and sympathetic legislators,” Sen. Wyden warned last month. “Their endgame is ensuring that any surveillance reforms are only skin-deep. … Privacy protections that don’t actually protect privacy are not worth the paper they’re printed on.”

At the risk of sounding like a Tea Party conspiracy theorist, I do reflect on the historic fact that our federal government, even with all the sacred respect we profess to show for the Constitution’s protections of our civil liberties, has frequently trampled on those liberties. From World War I when American citizens went to jail for criticizing the war to the incarceration of Japanese-Americans during the Second World War, from liberty oaths in the McCarthy era to Watergate break-ins, it takes no Orwellian flight of fancy to see an all-knowing, all-seeing federal government destroying our standing abroad, while trashing our liberties at home.

Great nations are true to their values. Great nations don’t just do things because they can. And great nations do not put civil liberties on autopilot.

Frank Church warned us 40 years ago. Ron Wyden is trying to warn us today.


Everything Old…

e325971eebc3ccb1_landingIdaho Sen. Frank Church went to his grave nearly 30 years ago still being criticized by some, including Idaho politicians like the late Sen. Jim McClure, who should have known better (and probably did), for all the alleged damage Church’s various investigations in the 1970’s had done to the CIA, the FBI and the NSA. The criticism was bogus then and today’s headlines featuring new insights into the extent of government information gathering on Americans only serves to underscore the importance of Church’s investigations in 1975 and 1976.

As the media fixates on security leaker Edward Snowden and his every movement, it may be worth remembering the role Church played in uncovering the spying excesses of the super secret agencies that have done nothing but grow since the Idaho Democrat pulled back the curtain on their highly questionable – and illegal – action more than a generation ago. The resistance to Church’s investigations was fierce at the time. Dick Cheney was White House Chief of Staff  and a vocal critic. Imagine that. Today the response to domestic spying is perhaps best summed up by the out-to-lunch comments of a Tennessee Congresswoman who warned that her constituents wouldn’t like “some knee jerk reaction” in Washington to their own government’s secret snooping. She need not worry by all accounts.

A fine piece at the Harper’s website – appropriately entitled “On the NSA’s That ’70’s Show Rerun” – recounts the Church investigations and quotes two former Church staffers, Peter Fenn and Pat Shea.

“The Snowden Affair is a “rerun” of issues first uncovered during the 1970s, though these problems trace back to the earliest American efforts at espionage, says [Pat] Shea. Between 1975 and 1976, the Church committees produced more than a dozen reports detailing the illegal activities of the NSA, CIA, and FBI, which included opening mail, intercepting telegrams, planting bugs, wiretapping, and attempting to break up marriages, foment rivalries and destroy careers of private citizens. ‘We thought we put a stop to this wholesale collection of information on Americans forty years ago,’ says Peter Fenn, another former Church staffer.”

Church’s civil liberties sensibilities were already fine tuned when he discovered that the government had been opening mail the senator, a senior member of the Foreign Relations Committee, had sent to the then-Soviet Union. “It was an affront to his privacy,” says Shea, a committee deputy director under Church , “an affront to the separation of powers.” [Note: Pat Shea is a long-time personal friend, a Board member with me at the Andrus Center and an attorney in Salt Lake City.]

Church’s answer to the secret surveillance activities was to first expose as much as possible about the methods and motives of the rogue agencies and then to create FISA – the Foreign Intelligence Surveillance Act – that established a formalized process for judicial review of government requests for snooping rights. The fact that we now know almost nothing about the real operations of the so called FISA Court – the Court sits in secret and lacks anything approaching the adversarial nature of the American judicial process – would, I suspect, appall Frank Church. He objected to the lack of checks and balances in the secret system he uncovered, but he also abhorred the essential culture of secrecy in the intelligence community.

Few Americans, for example, realize that the intelligence budget is totally “off the books.” If you wanted, as an American citizen, to know what the CIA (or the NSA) spent last year you couldn’t find that out. It’s secret. We only know that the CIA is vastly larger and more involved with para-military activity today than it was in Church’s day. The super secret NSA – one book on the agency calls it the “Puzzle Factory” – has become the largest, most secretive and potentially most intrusive spy agency in the world.

The absurdity of the culture of secrecy surrounding the U.S. intelligence community was highlighted a couple of days ago when Oregon Sen. Ron Wyden and Colorado Sen. Mark Udall, two of the very few members of Congress who seem willing to push back against the NSA’s programs and secrecy, said publicly that the agency’s “fact sheet” on its efforts to protect the privacy of American citizens contained “significant” errors.

“Significant” errors is another way of saying lies. Yet, and here is the absurdity, the two United States senators cannot, without violating secrecy rules, state specifically what was wrong with the so called “fact sheet.” The NSA “fact sheet” has apparently been removed from the agency’s website where you’ll now find next to nothing about the story that has dominated the news now for more than two weeks. The NSA’s motto might well be, “we’re secret and we like it that way.”

Perhaps the most disturbing feature of this ’70’s Show re-run is the generally tepid response from Congress and the American people. Opinion polls seem to indicate the public is ho-humming the entire controversy and perhaps as a result poll-sensitive elected officials, with the exception of Wyden and Udall, are laying low. Again, I suspect, Church would be stunned. There is no more fundamental responsibility of the legislative branch of the federal government than that of checking the excesses of the executive branch, but Congress would prefer to use up its oversight bullets on made-for-TV controversies like the IRS review of non-profit applications. Few are calling for real and comprehensive oversight of the secret American government even though, as Max Frankel wrote recently in the New York Times, “information that is gathered and managed in secret is a potent weapon — and the temptation to use it in political combat or the pursuit of crimes far removed from terrorism can be irresistible.”

(By the way, Wyden and Udall are both members of the Senate Select Committee on Intelligence, another legacy of the Church investigations, as is Idaho Sen. James Risch. As far as I can tell no Idaho news organization has questioned the senator on the NSA revelations and he has made no formal statements. You have to wonder why? Risch did comment on the NSA issues in a Q-A with the Idaho Freedom Foundation’s sponsored Idaho Reporter website where he mostly dismissed the importance of Snowden’s leaks.)

Of course Americans want and expect to be safe from terror and those forces at home and away who would do us harm. At the same time, a free society by its very nature must balance its freedoms against its security. Today we seem unwilling to even engage in this debate and seem willing to accept at face value that the government is going to behave in a way that protects American freedoms.

I share my friend Pat Shea’s worry, as Harper’s put it, “that today’s hyperpartisan congress won’t enforce the checks and balances that are needed to keep rogue elephants in check.”  [Shea] “is among a growing chorus calling for a new Church Committee, an independent commission comprised of intelligence-savvy officials who will put the ideals of open, fair and effective government above short-term politics.” But don’t hold your breath waiting for Congress to attempt to do what Frank Church did nearly 40 years ago – hold accountable the most super-secret agencies of our government, the agencies most able, as Church wrote, to turn their methods and secrecy “around on the American people, and no American would have any privacy left.”

Church was “an ethical giant,” Shea says. “We now live, unfortunately, in a world of ethical midgets.” Frank Church understood American history and fundamental values and he had the political guts to expose the excesses of the intelligence agencies because he understood that no political system based on openness and accountability is really and truly free when it tolerates, in the name of security, governmental actions that are the very antithesis of openness and accountability.

Church warned us in the 1970’s. Is anyone listening in the 21st Century?



KSM’s Circus

Justice or a Show Trial?

Khalid Sheik Mohammed’s attorney has his hands full.

Idahoans who know Boise criminal defense attorney David Nevin, a quiet, well-spoken, extremely thoughtful fellow, will instantly identify with the challenges he confronts in a courtroom in Cuba as he attempts to mount a defense for the world’s most notorious terror suspect. Nevin, a University of Idaho law grad, would be the first to acknowledge that the sense of fairness that is supposed to be at the heart of our adversary-based judicial system, coupled with a commitment to the “rule of law,” is at the very core of what Americans mean when they think about the concept of justice.

Yet, the circus-like atmosphere that prevailed last Saturday during the long awaited arraignment of KSM and three other defendants seems to have little to do with the American system. “The system is a rigged game to prevent us from doing our jobs,” Nevin complained at the end of the 13 hour proceeding last weekend conducted before the military commission that will, probably years from now, put Khalid Sheik Mohammed on trial.

Specifically, attorneys for the terror suspects can’t have anything like a normal attorney-client relationship with the men they are supposed to be representing. Everything that KSM says, even to his lawyer, is apparently being considered by the government to be a state secret. And torture, specifically the allegation confirmed by the CIA that KSM was waterboarded 183 times, and that torture may have led to a confession is, so far, off-limits in the proceedings.

“The government wants to kill Mr. Mohammed to extinguish the last eyewitness to his torture,” Nevin said, as reported by McClatchy’s Carol Rosenberg.

Nevin is living out the highest calling of the American criminal justice system; the notion that everyone – even the man accused of plotting to bring down the twin towers – deserves a fair trial, a chance to hear all the evidence against him and to introduce evidence, including evidence of torture, if it may help his defense. The trouble for Nevin is simply that he’s been asked to supply an adequate defense for his client in an environment of secrecy and possible torture, while the awful wounds of 9-11 still haven’t begun to heal.

Here’s the real rub: the government of the United States wants to bring these guys to justice – we all do – but for largely political reasons has determined it cannot trust the normal, open American judicial process to work as it should. A decision by Attorney General Eric Holder to conduct the legal proceedings in a New York federal courtroom ignited a firestorm of protest, the Congress got involved and the Obama Justice Department backed down. The military commission with its secrecy, determination to protect “state secrets” and Kafkaesque rules is now what David Nevin and the other lawyers at Gitmo must deal with.

One of the toughest critics of the Gitmo process is the now-retired Air Force Colonel and one-time terrorist case prosecutor, Morris Davis, who resigned his commission and retired rather than go along with a Pentagon ruling that waterboarding was permissible in dealing with terror suspects.

“After a decade of starts and stops and revisions and failures, the system is already presumptively discredited,” Davis said in an interview recently with the Los Angeles Times. “That the apologists for the commissions say they are essentially the same, or virtually the same, or nearly the same as federal court — the fact that they have to put a qualifier on it proves it is not the same.”

Davis predicts that KSM will eventually be executed, a martyr’s death he wants, after wringing the maximum propoganda value from the proceedings. “If we execute him, we will be giving him exactly what he wants,” Davis said.

Our government’s zeal to protect secrets almost always leads to bad outcomes. The desire to protect the secrets tends to pervert the very process that the secret allegedly protects. In the Gitmo cases, the most likey outcome is conviction of KSM and the others for the unspeakable crimes of September 11, 2001 and, while that might feel like justice it also might look to the rest of the world as an outcome derived by means of a distorted and unfair process.

The fundamental strength of the United States, including a justice system that has rules, procedures and methods to protect even the guilty, ends up looking to our enemies like an updated Stalin-era show trial. If the 9-11 mastermind is guilty – and I have no doubt he is – then show the world the evidence in open court. Try him as the suspected criminal he is, not some super human hoarding great secrets, and use the strength of the American justice system to show just what kind of man he is.

We must have a system of justice that is better than those individuals to whom we apply it. It’s doubtful these commissions will pass the test of history and let’s hope we don’t regret that failure to live up to our own best standards.



Ten Years On…

Amid the tenth anniversary reflections over the terror attacks on New York and Washington there is much to ponder, remember and regret, including our response and its effectiveness.

Bill Keller, just stepped down as the top editor at The New York Times, used the tenth anniversary to revisit his own cheerleading for the Iraq war. Keller concludes “I think Operation Iraqi Freedom was a monumental blunder.”

No such reflection or any second thoughts from former Vice President Dick Cheney who told CNN’s Wolf Blitzer, “I think we made exactly the right decision (regarding the invasion of Iraq.)”

The weekend’s commemoration of September 11, 2001 was remarkably free of politics, but 9-11 and the war on terror, as Politico points out, continues to infuse our politics.

“Even as voters grow weary of the nation’s wartime footing,” Alexander Burns and Maggie Haberman write at Politico, “Democrats and Republicans continue to seek out opportunities to wield the memory of 9/11 for electoral gain — whether that means using the Guantanamo Bay detention center as a wedge issue, courting the support of firefighters and police or attacking a proposed Islamic center near ground zero.”

So much was lost ten years ago and it is altogether fitting and proper that we regret and mourn that loss. We will do so for as long as people are alive who remember that day. But, we might do well to also reflect on the fleeting nature of the profound desire that existed in the days immediately after September 11 to come together as a country, share both grief and sacrifice and get our national response correctly calibrated. The Spirit of September 12, needless to say, did not last long.

Historian Julian Zelizer writes that our passion for partisanship couldn’t be overcome even by the tragedy of 9/11.

“Could the promise of September 12 ever be fulfilled,” Zelizer asks. “Certainly today there are enormous areas of consensus between the parties, such as over most counterterrorism policies, over the need for strong homeland security programs and even for strong military vigilance with countries such as North Korea and Pakistan.

“Nonetheless, the partisan forces that play out on the campaign trail are simply too great to overcome. If 9/11 taught us anything, it’s how deeply rooted partisanship is in our modern political culture. Even a tragedy of its magnitude could barely contain the forces that perpetually rip apart members of the two parties.

“Ten years ago, the parties came together. But they came together just for a brief spell. In the long span of history, it was as if the moment ended before either side could even blink.”

More serious than even the partisanship of our politics is the general failure of real reflection and analysis in the wake of that terrible day ten years back. A Dick Cheney can’t even hint that he has had a moment of pause considering all that has happened in a decade, including wars costing thousands of lives and perhaps $4 billion in treasure.

But reflect we must and not just on the horrible losses of a decade ago. Fareed Zakaria and others ask are we safer, was our response to 9/11 truly effective, have we improperly compromised our civil liberties and the American reputation for respecting the “rule of law,” has the re-ogranization of our intelligence system worked, and are we fated to wage an endless “war on terror?”

It is worth remembering, as Zakaria does, that “on the day before 9/11 the U.S. was at peace, had a large budget surplus, and oil was $28 a barrel. Today the U.S. is engaged in military operations across the globe, has a deficit of 1.5 trillion dollars and oil is $115 a barrel.”

A new Rasmussen survey says 66% of Americans think the country has “changed for the worst” since 9/11 and fewer than 50% think we’re winning our war on terror. To believe such surveys is to believe that the American people know that we haven’t gotten it right. As the past weekend illustrates, we remember well enough, but do we accumulate much knowledge along with the memory?

Bin Laden is dead and by most accounts his vastly diminished terror network is on the run, but it’s impossible to think – ten years on – that we are anywhere close to the end of the era that began on that spectacular September day a decade ago. Where do we go now? How will we know without more real reflection, without more effort at taking stock and admitting that maybe – just maybe – we have more learning to do?

A question for us – a question that really honors those who perished on 9/11 and in the wars that followed – is whether we will be smart enough to really assess the effectiveness of our response to the tragedy, and adjust as necessary, so that 20 or 50 years on the children of the victims of 9/11 will live in country that not only remembers their loss, but has learned from it as well.


The Gutsy Call

Getting Bin Laden

Of all the remarkable images over the last 24 hours or so, the tense scene in the White House Situation Room Sunday night tells most of what we need to know about the remarkable operation to capture or kill the evil mind behind Al Qaeda.

The President’s assistant for counter terrorism, John Brennan, called Barack Obama’s decision to send Navy Seals after Bin Laden “one of the gutsiest calls of any president in recent memory.” I’ve been wondering if there has been another moment – the gutsiet moment – in any recent presidency. I think not.

The famous Doolittle Raid on Japan in April 1942 gave the country a sense of hope in the wake of the military disaster at Pearl Harbor. The raid was planned and carried out after Franklin Roosevelt told his military advisers shortly after the Hawaii disaster that he would like to see the Japanese home island bombed as a morale boost. The raid was of little military significance, but it did have great morale and propoganda value.

George H.W. Bush launched the 1989 invasion of Panama to oust the tin horn dictator Manuel Noriega who was captured, held as a war prisoner and eventually tried and convicted. Hardly a transformative event, the invasion was roundly criticized even as Noriega’s crimes were exposed.

There are bound to be some comparison between the Bin Laden operation and the failed effort in 1980 to rescue the Americans held hostage in Iran. The very public failure of that mission damaged American prestige and undoubtedly contributed to President Jimmy Carter’s re-election lost later that year. The raid served to reinforce an image of Carter’s presidency as something less than successful.

Think for a moment about what the reaction would have been had the incredible operation Obama ordered last Friday not worked as it did. We’d be seeing stories today about the failure of the White House and the president to carefully calibrate the odds of going into Pakistan and not coming back. What if a helicopter with a dozen Seals had been shot down and American lives lost? What if Obama had opted for a “surgical strike” with a Predator drone or a Cruise missile that missed or even hit the mark, but could not provide positive identification of the target that the operation has produced?

Obama must have known that the only way to get Bin Laden was to confront him face-to-face with a young American who could capture him, or if that became impossible, kill him. Without Navy Seals on the ground in Pakistan, we would not have the “evidence,” the “treasure trove” of documents and computers, that those young men took from that compound where Bin Laden has apparently been holed up for five or six years.

Obama did indeed make the gutsy call. It’s difficult to compare all this with any other single event that has the same kind of drama, the world-wide impact and the transformative possibility.

Still, while the events around Bin Laden’s death have already assumed historical proportions, such transformative moments can, and do, change over time. I remember thinking as George W. Bush landed on an aircraft carrier and stood under that “Mission Accomplished” banner in 2003 that his re-election had just be secured.

Now, as history has moved on, the mission accomplished moment looks a whole lot different. I can’t help but wonder if the soon-to-be iconic photo of the President and his advisors huddled in the Situation Room watching the Bin Laden mission unfold will be seen ten years from now as we see it today.

It was a gutsy call and lots of history will follow it.



The Nazis Burned Books, Too

book burningNo Good Comes From This

Unfortunately there is a long history of humans believing they can destroy ideas by burning the books that contain those ideas. The practice hardly began with a crackpot preacher in Florida, but dates back to the Inquisition, the Spanish conquest of the “New World” and even ancient China.

In May of 1933, in the town where Martin Luther nailed his famous Theses to the church door, pro-Nazi students burned 25,000 books deemed “un-German.” Included were works by the German Nobel Prize winner Thomas Mann, a guy named Hemingway and, of course, works by Karl Marx, Socialists and Jews. The pictures and what they foretold are haunting and should tell us something.

Two things about the story out of Florida are worth noting it seems to me. The first is the enormous media attention lavished on Rev. Terry Jones. Not bad for a guy, as Gail Collins pointed out, who has built a thriving congregation of “about 50 people.” In a matter of hours, Jones’ plan to burn the Quran went viral sparking protests in Afghanistan, worry about the impact on our soldiers in the field, comments from every politician in the nation, etc. More important, perhaps, the Aljazerra website has been all over the story.

Additionally, I’m struck by the fact – as we approach the ninth anniversary of the September 11 attacks – how far we have come, in the wrong direction, in building a worldwide consensus to oppose the radical forces that operate in the shadow of Islam.

I remember George W. Bush – megaphone in hand, standing on the smoldering ruins of the World Trade Center – and the profound sense that the United States, at that huge moment in time, had the moral force to lead a worldwide effort to confront extremism. For a brief moment, the world was with us, but…well, apparently we blew it and here we are nine years later.

Now I fear the message sent by Rev, Jones, and folks like Newt Gingrich fulminating against a Muslim Cultural Center in lower Manhattan, paints America as unfaithful to our own professed and cherished traditions of religious freedom and tolerance. A perception of hypocrisy doesn’t play well in any culture.

Books – even books we would never read or whose content we abhor – are important things. They are symbols, as well as repositories of history, culture and, at a very important level, tolerance.

I’m not a big fan of Sidney Shelton or Barbara Cartland. In fact, I’ve never cracked a cover of either of those best selling authors, but they have huge followings and you have to respect that. I don’t read the Quran, either, but 22% of the people on the planet do and their numbers are growing at a rate faster than the world’s population.

Sending a billion and a half people regular telegrams from America with a message that we hate them doesn’t seem like a winning strategy.

It also doesn’t seem like America.