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, Christine Marwick

Penguin Books, 1976



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 statutory basis.

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 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 Huston testified:

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 would result.

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 to people.

"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.

The Lawless State

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