The Lawless State - conclusion
excerpted from the book
The Lawless State
The crimes of the U.S. Inteligence Agencies
by Morton Halperin, Jerry Berman, Robert Borosage,
Penguin Books, 1976
BASIS OF AUTHORITY: PRESIDENTIAL ASSERTION
The clandestine bureaus are the true progeny of the post-war
presidency, tracing their legal birthright not to legislation
but to presidential assertions of "inherent power."
According to bureau spokesmen, the FBI's "authority"
to spy on Americans rests upon the "constitutional powers
and responsibilities vested in the President." Similarly,
the ClA's covert intervention abroad is based not on its legislated
charter, but on the president's "inherent foreign policy
powers." The National Security Agency and the National Reconnaissance
Office, bureaus charged with communications and satellite intelligence
respectively, were created entirely by secret executive directive,
and annually consume over $4 billion without a statute to define
their duties. What is true for programs is also true for techniques:
the Justice Department has asserted a presidential power to order
warrantless . wiretaps, bugs, and "surreptitious entries"
(break-ins) against American citizens for intelligence purposes.
Even the secrecy that cloaks the intelligence bureaus is based
upon a classification system established by executive order, without
The intelligence agencies are assigned the responsibility
for routine spying and political policing at home and abroad.
Secrecy is necessary, for the primary function of the agencies
is to undertake disreputable activities that presidents do not
wish to reveal to the public or expose to congressional debate.
The agencies also collect secret intelligence information, which
helps to justify presidential power by providing it with a claim
of special knowledge. The "mysteries of government"
do much to still criticism of activities apparently beyond the
comprehension of mere citizens or legislators.
Perhaps the most important function of secrecy is to insulate
the clandestine agencies from the civil society and government.
Wrapped in a secrecy system fastened by security clearances, lie-detector
tests, and classification markings, the officials of the secret
bureaus develop a unique loyalty and allegiance to the agency.
The Senate Intelligence Committee found that the intelligence
agencies were a "sector of American government set apart.
Employees' loyalties to their organizations have been conditioned
by the closed, compartmented and secretive circumstances of their
agencies."' The Senate report compared intelligence service
with monastic life, with similar rituals, disciplines, and personal
sacrifices. In the intelligence bureau, however, the monastic
training prepared officials not for saintliness, but for crime,
for acts transgressing the limits of accepted law and morality.
Because of the secrecy, the "vicious and unsavory" tactics
that are part of the daily routine of the secret agent are hidden
from the citizenry, preserving their own sense of decency.
The secret agencies of the president operated for some twenty-five
years with few questioning their operations. The national consensus,
founded on anti-communism and developed by periodic crises, supported
a bipartisan foreign policy and a strong, active presidency. The
president's authority to defend the national security was generally
accepted, and his instruments went unquestioned. Few reporters,
legislators, or citizens even attempted to strip away the veil
of secrecy to expose the spy bureaus to review, and the few that
tried, failed. In this, the intelligence agencies enjoyed the
license of the secret police in a dictatorship: they could spy
on others without concern for others reviewing them.
The national consensus, secrecy, and the mantle of the presidency
enabled the covert bureaus to operate outside the normal checks
and balances of the constitutional system, and above the law itself.
For over twenty-five years, Congress simply abdicated its legislative
and oversight functions. Perhaps the best example was provided
by the late Senator Allen Ellender, a longtime member of the Senate
Appropriations Committee, which appropriated money to the CIA.
When asked in 1971 if the committee had approved financing for
the ClA's 36,000-person secret army in Laos, Ellender replied:
"I did not know anything about it.... I never asked to begin
with, whether there were any funds to carry on the war.... It
never dawned on me to ask about it."
For the most part, the congressional ignorance was voluntary.
Senator Leverett Saltonstall, for many years ranking Republican
on the oversight subcommittee, summarized the widespread feelings
on the Hill: "It is not a question of reluctance on the part
of CIA officials to speak to us. Instead it is a question of our
reluctance, if you will, to seek information and knowledge on
subjects which I personally, as a member of Congress and as a
citizen, would rather not have." The Saltonstall attitude
was not entirely irresponsible. It may be preferable for legislators
to remain ignorant of activities that they dare not control, for
in this way they avoid complicity in them. In any case, the Congress
operated for twenty-five years in blissful ignorance, appropriating
secret funds of untold amounts to the intelligence agencies without
even knowing where the money was hidden in the general budget.
Certainly at the height of the cold war, legislative approval
for virtually any activity was available if requested. The fact
that the agencies did not seek legislation to legitimate their
activities indicates both their disdain for congressional authority
and the desire of executive officials to claim exclusive monopoly
over national security activities.
The courts were no different from the Congress, for secret
activities seldom came before them. No criminal prosecutions were
brought, simply because no attorney general even considered trying
to control the secret bureaus. Indeed, for twenty years, the CIA
and the Justice Department had a formal agreement that Justice
would refer all cases involving CIA personnel or operations to
the agency's general counsel for review. If the counsel decided
that CIA sources or methods would be endangered, the Justice Department
would drop the case. Needless to say, the vast majority of cases
involving CIA personnel were not prosecuted. The formal agreement
of the CIA was the informal practice with the FBI. No attorney
general dared cross J. Edgar Hoover and investigate the bureau.
THE CRIMES OF STATE
The threat of a covert national security apparatus becomes
clear from its operating principles. "National security,"
"internal security," "foreign intelligence,"
"in the national interest"-these are empty receptacles
into which virtually any substance can be poured. Most important,
they are inescapably political terms, requiring subjective political
definition. Like all political decisions, the definition of the
terms must be done publicly, with open discussion and debate.
When the president and undercover bureaus are left to define
the terms in secret, predictable abuses occur. Inevitably, presidents
tend to equate dissent with subversion, and opposition to the
president with opposition to the national security. As Tom Charles
The risk was that you would get people who . . . would construe
political considerations to be national security considerations,
to move from the kid with the bomb, to the kid with the picket
sign and from the kid with the picket sign to the kid with the
bumper sticker of the opposition candidate.
Thus, every postwar president used the clandestine bureaus
to collect political as well as "internal security"
data. The temptation was simply too great to ignore. Needless
to say, the worst corruption came with the Nixon administration,
when "national security" became part of the cover-up
of the crimes of the president and his aides. The Nixon tapes
provide the spectacle of the president, John Dean, and H. R. "Bob"
Haldeman inventing a "national security justification"
for the break-in at the office of Dr. Lewis Fielding, the psychiatrist
of Daniel Ellsberg, the man who released the Pentagon Papers.
When the president asked what could be done if the break-in were
revealed publicly, Dean suggested, "You might put it on a
national security basis." Later Nixon said, "With the
bombing thing coming out, and everything coming out, the whole
thing was national security." Dean replied, "I think
we could get by on that."
The presidential abuses are paralleled by similar bureaucratic
excesses. Like the presidents, each bureau tended to equate criticism
of it with criticism of the nation's security. Each secret bureau
used its surveillance techniques to watch or harass its domestic
critics. The IRS automatically institutes an audit of any public
critic of the income tax, and sends informers to attend antitax
meetings and take down names. Military intelligence agents were
particularly concerned with critics of the military. Hoover was
constantly directing the attention of his agents to critics of
the bureau; name checks, field investigations, and often more
The bureaucratic corruption was the use of secret political
intelligence for institutional or personal purposes. Hoover, for
example, was the master of the implied blackmail. He kept in his
private office hundreds of "OC" (Official and Confidential)
files, which reputedly detailed the private lives of politicians
and federal officials. One can envision the scene at which Hoover
informed Attorney General Robert F. Kennedy that a bureau wiretap
on Sam "Momo" Giancana, the reputed Chicago Mafia capo,
had picked up calls between the White House and Judith Campbell,
"friend" to both Giancana and John F. Kennedy. Hoover
no doubt reassured the young attorney general that not one word
about the existence of these tapes need come out, as long as he,
Hoover, remained in office. No doubt Kennedy complimented the
director on his long and valuable service to his country, and
assured him that his position was secure.
Far more serious than these "routine corruptions"
is the conflict that occurs over who shall define "threats"
to the national security. The secret bureaus consider themselves
the repositories of expertise on subversion at home and abroad;
it becomes their duty to protect Americans-even against themselves-in
a world far crueler than any citizen could imagine. As time goes
on, the bureaus thus become less and less responsive to outsiders,
whether legislators, cabinet officials, or citizens. Inevitably
a gap widens between the practices of the covert bureaus and the
beliefs of the citizenry. When the consensus supporting the old
policy dissipates-as it did in the jungles of Vietnam and the
suites of the Watergate-a crisis ensues.
Thus, when the intelligence investigations started, the bureaus
resisted, using every tactic of delay, obstruction, and obfuscation
possible. The House Intelligence Committee, chaired by Congressman
Otis Pike, concluded in its final report that "if this Committee's
recent experience is any test, intelligence agencies that are
to be controlled by Congressional lawmaking are, today, beyond
the lawmakers' scrutiny." Ironically, this conclusion was
penned before the administration and the CIA managed to convince
the House to suppress its own committee's report.
The House committee was not alone. FBI Director Clarence Kelley
was deeply embarrassed when his sworn testimony that the bureau
had terminated all illegal break-ins in 1966 was proved wrong,
and break-ins were occurring during his own tenure as director.
It seems clear that veteran bureau officials were continuing the
activities they considered necessary, without telling even their
own director. Similarly, career CIA officials didn't bother to
inform CIA directors John McCone and Admiral Raborn-both outsiders
to the agency-that the CIA was involved in assassination attempts
against Castro, and was maintaining an illegal mail-opening program
in the United States. Clearly as outsiders, the two might not
recognize the need for such programs as well as intelligence veterans.
It is this attitude, slowly built up over years of lawless activity
in the nation's "interest," that can indeed threaten
the entire notion of a government ruled by law and accountable
"We become lawless in a struggle for the rule of law-
semi-outlaws who risk their lives to put down the savagery of
others," says Peter Ward, the CIA agent in a novel by E.
Howard Hunt. Hunt would probably not understand the irony.
In the 1950s we were told that Communists used Aesopian language,
infiltrated and disrupted political groups, subverted the free
press and democratic process, and used "fronts" to mask
their activities. Afraid of them, we have inevitably come to mirror
our own image of them. To protect ourselves from the tyrannous,
we have slowly built our own tyranny.
James Madison wrote: "At the foundation of our civil
liberties lies the principle which denies to government officials
an exceptional position before the law and which subjects them
to the same rules of conduct that are commands to the citizen."
In the end, the sides of the dual state, military and civil, secret
and open, arbitrary and legal stand, in Edmund Burke's phrase,
in "dreadful enmity." Now may be our last opportunity
to decide against the nether side of the state.
Security Agency watch