|
An Impeachable Offense?
Democracy Now Interviews
AMY GOODMAN, Martin Garbus, James Bamford, Christopher Pyle
December 19, 2005
RUSH TRANSCRIPT
This transcript is available free of charge. However, donations help us
provide closed captioning for the deaf and hard of hearing on our TV broadcast.
Thank you for your generous contribution.
AMY GOODMAN: The President initially refused to answer any questions about
the secret program, but on Saturday he spoke openly about it and defended the
practice.
PRESIDENT GEORGE W. BUSH: We do not discuss ongoing intelligence operations
to protect the country. And the reason why is that there's an enemy that lurks
that would like to know exactly what we're trying to do to stop them. I will
make this point, that whatever I do to protect the American people -- and I
have an obligation to do so -- that we will uphold the law, and decisions made
are made understanding we have an obligation to protect the civil liberties of
the American people.
JIM LEHRER: So, if, in fact, these things did occur, they were done legally
and properly.
PRESIDENT GEORGE W. BUSH: See, you're trying to get me to talk about a
program that's important not to talk about, and the reason why is that we're at
war with an enemy that still wants to attack. I -- after 9/11, I told the
American people I would do everything in my power to protect the country,
within the law. And that's exactly how I conduct my presidency.
AMY GOODMAN: President Bush admitting on Saturday that he secretly had
ordered the National Security Agency to eavesdrop. The disclosure has -- he
later reiterated he would not comment on the program. Doing so would, quote,
"compromise our ability to protect the people,' but less than 24 hours
later, after a storm of public criticism, he reversed his position.
The disclosure has led to a bipartisan call for a congressional
investigation. In response, administration officials pointed out both
Democratic and Republican congressional leaders have been briefed on the
program, but former Democratic Senator Bob Graham, who attended the briefings
as chair of the Senate Intelligence Committee, told the Washington Post he was
never informed of the two key issues to arise from the disclosure. Graham says
he was never told the government was eavesdropping on U.S. citizens and foreign
nationals in the country, nor was he told it was bypassing the special courts
imposed by the Foreign Intelligence Surveillance Act, or FISA.
Under FISA, the government can obtain warrants directly from a special court
that requires almost no evidence or probable cause. Passed by Congress in the
1970s, FISA describes itself and the criminal wiretap statute as "the exclusive
means by which electronic surveillance…may be conducted."
Several analysts have questioned the administration's decision to not seek
court-approved warrants when FISA courts have almost never rejected them.
According to the Electronic Privacy Information Center, FISA courts have
rejected only four of over 15,000 warrant requests made since 1979. That number
includes over 4,000 warrant requests since the 9/11 attacks.
The Washington Post notes the revelation marks the third time in as many
months the Bush administration has been forced to defend a departure from
previous restraints on domestic surveillance. Most recently, NBC News reported
last week, the Pentagon has been conducting domestic intelligence on peaceful
anti-war protesters and others.
But the revelation also marks the second time in as many months, one of the
country's leading newspapers has withheld information at the request of the
Bush administration. In a November piece on the existence of C.I.A.-run
Soviet-era prisons in Eastern Europe, the Washington Post complied with a White
House request to withhold information administration officials said could be
harmful to national security. In its report Friday, The New York Times revealed
it had not only withheld information, but had in fact delayed publishing the
story also at the government's request for more than a year.
To discuss this explosive story, we're joined by Martin Garbus, partner in
the law firm, Davis & Gilbert. Time magazine calls him one of the best
trial lawyers in the country, while the National Law Journal has named him one
of the country's top ten litigators. We're also joined in our D.C. studio by
James Bamford. He is author of several books, including the first book ever
written about the National Security Agency called The Puzzle Palace: Inside
America's Most Secret Intelligence Organization, also author of Body of
Secrets: Anatomoy of the Ultra-Secret National Security Agency, and most
recently, A Pretext for War. And joining us on the phone from Massachusetts is
Christopher Pyle. In 1970, Pyle disclosed the military surveillance of civilian
politics and helped to end that practice. He is a former military intelligence
officer. Let's begin with Jim Bamford in Washington. Can you talk about
precisely what has been revealed? What exactly is the National Security Agency
doing, Jim?
JAMES BAMFORD: Well, there hasn't really been very much revealed at all,
simply the fact that the Bush administration has admitted that they have been
eavesdropping on U.S. citizens within the United States, and apparently, they
were focusing on international communications; in other words, where at least
one of the terminals of the phone call was outside the United States. So that's
about all we know right now. The New York Times indicated that there was
somewhere between several hundred and maybe several thousand people that were
affected by this. But apparently, it's been going on at least since 2001, so
there's probably quite a few people out there that have been surveilled, and
have no knowledge about it, and again, without any court order.
AMY GOODMAN: Now, has this never happened before?
JAMES BAMFORD: No. It's happened quite a bit before. Throughout the 1960s --
actually, since the end of World War II, the NSA was doing illegal spying. One
project was known as Project Shamrock, where they were getting illegal access
to all the telegrams that came into the United States, went through the United
States, or went out of the United States, every single day. They would go to
New York, and Western Union would turn over all the telegrams to them. And that
continued right up until the 1970s. And they were also doing a lot of targeting
on communications on behalf of the C.I.A. and other agencies, telephone
communications and so forth, and again, without any warrants.
So that was why, after these revelations became public and during the Church
Committee hearings in 1975, they created the FISA Act, the Foreign Intelligence
Surveillance Act and then the Foreign Intelligence Surveillance Court to act as
sort of a buffer or a firewall between the whatever president, whatever
administration happens to be in power and the American public, so there will be
some neutral arbiter there to take a look at the request and decide whether the
government should be able to do the eavesdropping or not.
AMY GOODMAN: We're going to go to a break. We'll be rejoined by James
Bamford, investigative journalist, Martin Garbus, First Amendment attorney, and
former military intelligence analyst, Christopher Pyle.
[break]
AMY GOODMAN: We're talking about the revelations of the National Security
Agency spying on Americans. We're joined by James Bamford, investigative
journalist in Washington. In a moment, Christopher Pyle, former military
intelligence analyst who exposed this kind of surveillance back decades ago,
and in our studio in New York, Martin Garbus, who is a well known First
Amendment attorney. Martin Garbus, you wrote a piece in a letter to the editor
in the New York Times that appeared on Saturday that talks about, well, both
the expose, but why the Times held onto it. What is the significance of
this?
MARTIN GARBUS: Well, I think it's the first time in a while that the Times
has done something like that, and I compared it to the Pentagon Papers case,
when they went ahead and they ignored what the government said. Here the
government had meetings with the New York Times.
AMY GOODMAN: Stop for a moment, for kids who are listening who don't even
know what the Pentagon Papers are.
MARTIN GARBUS: The Pentagon Papers were documents that ultimately Daniel
Ellsberg released. They were secret documents which indicated and gave
information about our involvement in Korea and North Vietnam, in both those
wars. And those documents released, the government then tried to stop the
publication of those papers. The New York Times and the Washington Post both
went ahead and published those stories. The government, at that time, made the
claim that our foreign policy would be affected, and that particular
individuals or many individuals would be killed because of the release of
secret information. And the Times and the Washington Post ignored that.
What we've recently seen is both the New York Times and the Washington Post
have taken a totally different tack. The Washington Post, when it wrote about
the secret prisons, was asked by the government not to give the locations of
those secret prisons, and the Washington Post acceded to that. The New York
Times, for one -- at least one year, held up the publication of this story, and
had this story come out in 2002, 2003, 2004, probably the politics in the
country would be very, very different. And the New York Times had meetings with
the government, and according to the New York Times, they made an
investigation, and they concluded what there were legal safeguards in effect
that permitted the government's policy.
Now, the New York Times has a lot of very sophisticated lawyers, and those
lawyers know better than that. There is a case, and I'd like to refer to
something James Bamford said, with respect to how long this has gone on before.
There had been a case in 1972, when Nixon tried to do the same thing. Lenny
Wineglass, a very fine lawyer, argued the case in District Court. Nixon claimed
that you could, for domestic surveillance, that you had a right to use
executive warrants, as he claimed, the permission of the President and the
Attorney General. And he said that that was sufficient. This was at a time of
civil unrest, according to him, 1971, 1972. There were some bombings within the
United States. And he went out, and he tried to survey, surveillance people,
eavesdropping, wiretapping without judicial warrants, without probable
cause.
And the United States Supreme Court said no. The United States Supreme Court
said you can't do this. The United States Supreme Court said that the
President does not have that kind of power within the Constitution. He has the
power to protect the nation, but this goes beyond that. He can't violate
the Constitution. That's exactly what's happening now. And what's going
to happen is: You now have a different Supreme Court. You're going to
have Roberts, probably Alito, and my judgment is they're going to uphold what
Bush is doing, and in effect, they're going to reverse, though not directly,
the Nixon case. It's a strategy to get past that Nixon case and to give the
President the broadest powers that any President has ever had.
AMY GOODMAN: Let's go to Christopher Pyle. He is a Professor of Politics at
Mount Holyoke College right now, but formerly was a military intelligence
officer who exposed -- blew the whistle on the Pentagon's spying on civilians
in this country. Can you go back in time, Professor Pyle, and talk about what
happened, its significance, and what you ended up doing about it?
CHRISTOPHER PYLE: In the 1960s, Army intelligence had 1,500 plainclothes
agents watching every demonstration of 20 people or more throughout the United
States. They had a giant warehouse in Baltimore, Maryland, full of information
on the law-abiding activities of American citizens, protest politics, mainly. I
learned about this while I was in the Army, just before I was discharged, and I
wrote about it after I was discharged, and then investigated it for two
congressional committees: Senator Ervin's Committee on Constitutional
Rights and Senator Church's Select Committee on Intelligence. As a result
of those investigations, the entire U.S. Army Intelligence Command was
abolished and all of its files were burned. And then, after that, the Senate
Intelligence Committee wrote the Foreign Intelligence Surveillance Act of 1978,
which tried to stop the warrantless surveillance of electronic
communications.
AMY GOODMAN: Can you talk about your own counterintelligence program that
you set up once you left the Pentagon?
CHRISTOPHER PYLE: Well, after I disclosed the Army's surveillance, I began
hearing from students I had taught at the U.S. Army Intelligence School. I was
head of the legal section there, and I taught investigative legal principles. I
taught them not to do what it turned out they were doing. And so I began to
conduct my own investigation; later did it under the auspices of Senator
Ervin's committee, and through that investigation, recruited 125 agents
to tell what they knew about the spying to members of Congress, to the courts
and to the press.
AMY GOODMAN: And what happened?
CHRISTOPHER PYLE: The military said they didn't do it, and beside, they
stopped, and they wouldn't do it again. We were unable to pass legislation
permanently ending it, but extensive assurance was given, executive orders were
issued, and the Army was supposed to be out of the domestic spying
business.
AMY GOODMAN: So, your response when you heard about what the National
Security Agency has been authorized to do by the President?
CHRISTOPHER PYLE: Not terribly surprised, but the one piece of it that
amazes me is that the President admitted that he personally ordered the
National Security Agency to violate a federal statute. Now, he has no
Constitutional authority to do that. The Constitution says he must take care
that all laws be faithfully executed, not just the ones he likes. The statute
says it's, as you said at the beginning of the program, that the Foreign
Intelligence Surveillance Act is the exclusive law governing these
international intercepts, and he violated it anyway. And the law also says that
any person who violates that law is guilty of a felony, punishable by up to
five years in prison. By the plain meaning of the law, the President is a
criminal.
AMY GOODMAN: Martin Garbus, you say this is an impeachable offense.
MARTIN GARBUS: Yes, I agree that it is a crime, that it is an impeachable
offense. The question is: What will happen? The mere fact that it's
impeachable doesn't necessarily mean that the Supreme Court will find that, and
it doesn't mean that he will necessarily be impeached. He should be impeached,
but he is claiming, for the first time, that he has the authority to do this,
even though FISA is there, because he has relied on counsel. He has relied on
John Yoo. He has relied previously on Ashcroft, and he's now relying on
Gonzales. And all of these people are telling him that it's legal. All these
people are telling him that the President's powers can be expanded, even though
FISA is there. And the President has come up with an excuse, which I
don't see how anybody can buy. In FISA, you can get a warrant in five
minutes. You just go before the FISA court and you get your warrant, and that's
all there is to it. There's no argument --
AMY GOODMAN: Hasn't the criticism been that FISA gives them too easily?
MARTIN GARBUS: Surely. Your statistics were correct. Namely, that out of
some 15,000 warrant applications, there were eight that were denied since 1978,
so it's basically a rubber stamp. Now, what Bush said is, ‘I don't have
the time,' he says, ‘to go to FISA.' Now, everybody has had
the time to go to FISA. It doesn't take any time at all. So, that the argument
that he has the right to avoid FISA, I think, is a false argument.
AMY GOODMAN: James Bamford, if you could explain how exactly the
surveillance happens, how does it work at the NSA? What was allowed before, in
terms of monitoring overseas conversations, and where are these listening
devices?
JAMES BAMFORD: Well, before I get into that, just one other comment on what
we just have been talking about. When the Foreign Intelligence Surveillance Act
was created in 1978, one of the things that the Attorney General at the time,
Griffin Bell, said -- he testified before the intelligence committee, and he
said that the current bill recognizes no inherent power of the President to
conduct electronic surveillance. He said, ‘This bill specifically states
that the procedures in the bill are the exclusive means by which electronic
surveillance may be conducted.' In other words, what the President is
saying is that he has these inherent powers to conduct electronic surveillance,
but the whole reason for creating this act, according to the Attorney General
at the time, was to prevent the President from using any inherent powers and to
use exclusively this act.
Now, the way the NSA actually does its eavesdropping, is it -- if you think
about the FBI being sort of a retail eavesdropper, they will go from house to
house or put a bug on a central telephone company's office for where a
person happens to have their junction box, or whatever. The NSA, on the other
hand, does it wholesale, where they take entire streams of communications
coming down from satellites, which can contain millions of communications, and
they sort of intercept those communications with large dishes and filter the
information through very quick computers that are loaded with names of people,
words that they're looking for, and at one point they -- one listening post in
the central part of England, for example, they intercept two million pieces of
communications an hour. So that's emails, faxes, telephone calls, cellular
calls and so forth. So, it's an enormous amount of eavesdropping, and Senator
Frank Church, back in the mid-70s, when he was conducting his investigation of
NSA, said that if NSA's technology were ever turned on the American public,
there would be no place to hide.
AMY GOODMAN: And how it actually goes down? I mean, how they record?
JAMES BAMFORD: Well, they record it by picking up the signals. The signals
are transmitted by -- either by satellite or microwave or by undersea cable.
And the NSA has developed methods for eavesdropping on all of those techniques,
either using satellites in space or ground stations or submarines that can
actually tap into undersea cables. So, they have perfected the methods by which
they can intercept all of the different forms of communications, even fiber
optic communications, which are buried underground. And the key is that being
able to sift through it all and pick out the communications that they want. But
again, the NSA is supposed to be directed externally. And the problem is once a
president decides to secretly turn the NSA's big ear internally, and that's
what has been happening.
AMY GOODMAN: On Saturday, I was talking to some U.N. personnel and
ambassadors, ambassadors to the United Nations. Now, we know about the scandal
of the Security Council members being eavesdropped on, wiretapped, when there
was pressure in the lead up to the invasion. When I asked them about this, you
know, they take this as standard fare at the U.N. Everyone assumes that they're
being wiretapped.
JAMES BAMFORD: Well, that's true, and there were a number of revelations
that came out early on in the lead up to the war in Iraq. There was an employee
of the British equivalent of NSA, called GCHQ, Government Communications
Headquarters, who leaked a memorandum from the NSA which specifically said they
were -- they wanted extra targeting on some of the members of the Security
Council, in order to try to get them to change their votes in favor of the
United States. So by eavesdropping on their communications, they could find out
-- say, it was in Gambia or something, they want a bridge, so the United States
can offer money to help them build a bridge, or whatever it is, offer some kind
of a bribe in order to get their vote. So, that was why that document was
leaked, and it showed very clearly that the U.S. was using the NSA to help sort
of twist arms to get the votes they wanted in the United Nations.
AMY GOODMAN: Professor Christopher Pyle?
CHRISTOPHER PYLE: The problem here is everybody knows that international
intercepts go on all the time, particularly those with political or economic
advantage. The problem with the latest disclosure is it's focused upon
persons in the United States.
Two months ago, two agents of the Department of Homeland Security went to
visit a student at the University of Massachusetts at Dartmouth. They were
concerned because he had made an interlibrary loan request for Mao
Tse-Tung's book, the Little Red Book. Now, somehow the government was
monitoring the email record that sought to get that book out of Peking, because
the kid was looking for the official Peking version. Now, somebody is
monitoring interlibrary loans. This would seem to occur under Section 215 of
the PATRIOT Act. But the question is who is carrying it out? And it could very
well be NSA.
And this is precisely what the Church Committee, which I worked for, tried
to stop, this kind of vacuum cleaner surveillance, this watch-listing of books
and titles and words and names of people who are loyal Americans who are
carrying out constitutionally protected activity. The agents actually said that
the Little Red Book is on a watch list, and so that's why they had to
investigate why he wanted to read the Little Red Book.
AMY GOODMAN: Christopher Pyle, you were a military intelligence analyst. On
this issue of people who say, you know, this is a different time after 9/11,
and we -- the U.S. has to do everything it can, no holds barred, to go after
terrorists, when you have this vacuum cleaner approach, when you are taking in
so much information, can this actually distract from – I mean, forget the
moral implications, the legal implications, the constitutional implications --
can it actually hurt efforts to protect national security?
CHRISTOPHER PYLE: It entirely overwhelms the agents who are doing the
analysis by gushing in this much information from so many agencies on so much
trivia. The whole system is based upon the assumption that the way you find a
needle in a haystack is to add more hay.
AMY GOODMAN: Martin Garbus.
MARTIN GARBUS: I think that one of the things that we should be aware of is
the way the argument by the Bush administration has shifted. First, when they
admitted to this wiretapping, they were saying it was wiretaps for surveillance
between domestics and people overseas. Now, they've admitted it's the
wiretapping and investigation of people within the United States, domestic
calls to domestic calls. Secondly, the way the argument has shifted: The
argument originally had been that the mandate, given as a result of September
11, gave the President the power to do this, as it gave him the power to do
torture, as it gave him the power to restrict detainees, as it gave him the
power to stop habeas corpus. The argument has now shifted. They're no longer
claiming that it's that particular enactment which gives him this authority.
This is a straight constitutional argument, saying that under the Constitution,
he has the power to protect the United States, and he can do anything under the
Constitution to protect the United States, and therefore, he now has a
constitutional power, not a statutory power, and that was, again, the argument
in the Nixon case.
AMY GOODMAN: And the issue about torture, the Levin-Graham amendment?
MARTIN GARBUS: I think that -- I think it's astonishing, first of all, that
it's the Levin amendment. And when that first passed in the Senate--
AMY GOODMAN: This is Michigan Senator Carl Levin.
MARTIN GARBUS: One of the most, perhaps, liberal, one could argue, members
of the Senate. Now, when that bill passed in the Senate, it was 79-16. So, I
think it's extraordinary the extent to which the Democrats have capitulated on
this particular issue. I think this business about the PATRIOT Act, I think
it's just a firestorm. I think, ultimately, it's going to be passed, and they
are going to rely on the President's authority at the end of the day. You
really don't need the PATRIOT Act if the President has all of this
authority.
So, they're switching the argument. They no longer need that particular
statute. This comes within the President's Article 2, Section 2 rights under
the Constitution to protect the people. They have changed the battleground to
bring it close to the Nixon case, which they, with this new Supreme Court, will
overrule. The Nixon case was '72. At that time, you had Brennan,
Marshall, Douglas. This is a very, very different court.
AMY GOODMAN: Martin Garbus, I want to thank you for being with us,
well-known First Amendment attorney; James Bamford, investigative journalist;
and Christopher Pyle, Professor of Politics at Mount Holyoke, also a former
military intelligence officer.
To purchase an audio or video copy of this entire program, click here for
our new online ordering or call 1 (888) 999-3877.
|
|