A closer look at the Bush record -- from
the war in Iraq to the war on the environment
take the exit ramp off the Bush presidency in November?
Colin Powell's Legend
Colin Powell's sterling reputation in Washington hides his life-long role
as water-carrier for conservative ideologues.
Recounting the controversial presidential campaign
Is the national media a danger to democracy?
The Clinton Scandals
The story behind President Clinton's impeachment
Pinochet & Other Characters
The Dark Side of Rev. Moon
Rev. Sun Myung Moon and American politics
Contra drug stories uncovered
How the American historical record has been tainted by lies and cover-ups
The October Surprise
The 1980 October Surprise scandal exposed
From free trade to the Kosovo crisis
Other Investigative Stories
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Stopping Hayden & the NSA
May 17, 2006
Editor's Note: As the
American people belatedly focus on their lost liberties from the War on
Terror, there suddenly seems to be a lot of quibbling going on. Two of
the major U.S. phone companies -- Verizon and BellSouth -- have issued
carefully worded statements asserting that they did not turn over all
their customers' phone records to the Bush administration for a vast
database aimed at tracking patterns of phone calls supposedly to
identify suspected terrorists.
USA Today reported last week that the two companies and AT&T had
agreed to cooperate by surrendering the phone records, but not the
customers' names and addresses, while Qwest rejected the government's
request outright. The Verizon/BellSouth denials require detailed
analysis of the parsed corporate language, but one possible dodge is
that the denials don't cover long-distance subsidiaries, like MCI, which
Verizon bought in January.
Similar splitting of hairs appears to have occurred in the Bush
administration's internal battles over how far to go in encroaching on
constitutional freedoms, with some "hardliners," like Vice President
Dick Cheney reportedly favoring warrantless intercepts of all domestic
calls while "moderates," such as former National Security Agency
director Michael Hayden, proposed warrantless spying only on
international calls made by Americans.
In this guest essay, Ivan Eland of the Independent Institute argues
that these distinctions are more political than legal -- and the
constitutional violations are so egregious that they justify closing
down both Hayden's nomination to be CIA director -- and the NSA:
The nomination of Gen. Michael
V. Hayden, the National Security Agency’s former director, to replace
the disastrously incompetent Porter Goss as Director of the CIA, should
be rejected on the grounds that Hayden subverted the U.S. Constitution.
In addition, the public debate about the efficacy of the recent
intelligence reorganization should lead to the abolishment of his former
agency and the inclusion of its more legitimate functions into a slimmed
down and more agile intelligence community.
In an effort to save the Hayden nomination, intelligence officers,
through leaks to the press, are arguing that only Hayden’s heroic
efforts against Vice President Dick Cheney’s juggernaut limited the
warrantless NSA eavesdropping program to cases where a caller in the
United States was calling abroad or receiving a call from there.
They say the vice president believed, under his expansive theory of
executive power, that the president could eavesdrop on purely domestic
calls as well in order to preserve national security. But Hayden should
be held accountable for suggesting the expansion of NSA’s activities
into warrantless spying in the first place.
What part of the Fourth Amendment to the Constitution doesn’t the
general understand? The amendment states:
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized."
The amendment clearly intends that a warrant is needed for all
searches—which includes modern-day eavesdropping and wiretapping—and
specifically states that warrants should not even be issued unless
government officials can attest that there is “probable cause” that a
crime has been committed.
The highest law of the land deems the right of U.S. citizens to be
protected against the government’s potent police power to be so
important that it creates no exemption for “national security.”
The artificial distinction the Bush administration has made between
the international and domestic calls of people in the United States is
ludicrous and has no basis in law. The distinction has been made because
it is easier to sell illegal and improper spying to the public and some
in the intelligence community, who correctly believe that domestic
spying of any kind will destroy public confidence in the nation’s
But even spying on international calls of people in the United States
is unconstitutional without a warrant. So Hayden was advocating
subverting the Constitution to expand the activities of his agency.
Also, under Hayden’s watch at NSA, he approved a program to attempt
to keep track of every phone call in the United States, whether made
within the boundaries of the country or involving a party abroad. The
Bush administration maintains that this is not eavesdropping but merely
keeping track of callers, recipients, and calling patterns so that they
can be mined to uncover terrorist activities.
Can Americans really believe the president’s claim that the creation
of such an expensive database doesn’t mean that the government is spying
or will spy on the hundreds of millions of people whose calls are on
file? The government has a long history of illegal and unconstitutional
spying on individuals.
Also, this argument resembles Bill Clinton’s claim that he smoked
marijuana but didn’t inhale—verbal gymnastics don’t reduce the
illegality of the action. The creation of a massive government database
detailing the calling patterns of Americans, even if no eavesdropping on
individual calls occurs, is clearly a search of personal information
without the warrant required by the Constitution. It also seems to
violate the portion of the Fourth Amendment requiring specific, rather
than general, searches.
But scrapping Hayden’s nomination to be CIA director is not enough.
Those in the intelligence community who believed that spying on people
in the United States could discredit spy agencies were right in the case
of NSA. The NSA has been so discredited by its warrantless spying and
data mining that it is time to reorganize the agency out of existence.
There has been some recent willingness in Congress and in the public
debate to admit that the post-9/11 reorganization of the intelligence
community has only added more bureaucracy to a system whose main problem
during 9/11 was a lack of coordination among agencies.
The 16 agencies of the community need to be streamlined and
consolidated. The place to start is NSA. This discredited agency should
be eliminated and its more legitimate functions incorporated into a
reorganized and more nimble intelligence community.
Ivan Eland is a Senior Fellow at The Independent Institute,
Director of the Institute’s
Center on Peace &
Liberty, and author of the books
The Empire Has No Clothes, and
Putting “Defense” Back into U.S. Defense Policy.
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