NSA: Clapper’s Solution to Lying

April 2, 2014–General James Clapper has had enough. He can’t take any more. The Director of National Intelligence, tired of being caught lying when confronted with questions from his congressional overseers, has finally contrived a solution: don’t answer.  Then, months later, reply quietly in a letter and hope that no one pays attention.

So it is with the latest evidence of intrusions by the National Security Agency’s eavesdroppers. Predictably, it was a question from Oregon democrat Ron Wyden at a January 29, 2014 hearing of the Senate intelligence committee that brought on this maneuver. Asked if the NSA had, in fact, conducted warrantless searches of Americans’ phone calls, Director Clapper replied, “There are very complex legal issues here,” and then clammed up.

Two months later, with the public’s attention diverted to the crisis in the Crimea and the breakdown of Israeli-Palestinian talks, Clapper sent Senator Wyden a letter which affirmed the truth, albeit in spookspeak. His March 28 letter stated, “there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence . . . . As you know, when Congress reauthorized [the relevant section of the FISA Amendments Act], the proposal to restrict such queries was specifically raised and ultimately not adopted.”

General Clapper could not do other than affirm the truth behind Senator’s Wyden’s question. Documents revealed by Edward Snowden last summer already show this to be the case. The DNI himself, under orders from President Obama, divulged FISA Court rulings that further confirmed this. So did an August 2013 compliance assessment from the NSA and Justice Department which found instances of these intrusions. Where are the “complex legal issues” that prevented Clapper from answering the question at an open hearing? My guess is that they were reporters and cameras.

Let’s deconstruct the substantive defense in the director’s March 28 letter. General Clapper relies on three elements: that the phonecall contents were legally obtained, that the actions occurred under FISA court judgments ruling them consistent with the law and the Fourth Amendment, and that Congress had considered and rejected a change in the law underlying the eavesdropping while renewing it.

Phonecall contents were obtained legally only in the sense that some FISA document referred to the activity in some fashion. As we should know by now, the intent of the 1978 law was to ensure that all wiretaps were covered by specific court orders. That’s different from this eavesdropping. Clapper’s top lawyer Robert S. Litt told the Privacy and Civil Liberties Oversight Board on March 19 (reported here in “Spy Scandals Update,” March 20, 2014) that it would be an inconvenience for the FISA court to have to rule on every request for a wiretap. Litt actually implied there are a substantial number of these kinds of intrusions when he said the number was much greater than 288–the figure for queries against “metadata” found in blue ribbon panel reviews of the NSA traffic analysis intrusions. Interesting that.

Clapper’s second point is demonstrably false. There was no FISA court opinion which considered the application of the Fourth Amendment to this spying until very recently. When an August 2013 review found transgressions that opinion was not on the books. The validity of that opinion can still be disputed but the point is that it did not exist at the time of the violations. As for the argument that Congress rejected changing the law, the question there is whether the NSA and DNI were truthful at the time in what they told the legislators about the real threat, their alternative means, and the bottom line requirements. Judging from the intelligence community’s track record, the likelihood they were honest with Congress is very low.

These are exceedingly thin reeds. Thus are Family Jewels shielded, by desperate defenses. As Senators Ron Wyden and Mark Udall put it in a joint press release yesterday, “This . . . poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure an authorization before monitoring his or her communications. This fact should be beyond dispute.” General Clapper’s credibility as a spokesman for U.S. intelligence remains near zero. He should go. President Obama needs to make that part of his NSA reforms.

 

April Fools at Dien Bien Phu

April 1, 2014–Sixty years on one can look back at the Dien Bien Phu crisis and see that that April Fools’ Day was destined to become one of the most significant of the entire siege. April 1, 1954 became the day that many strands of the events came together. It was a day when the French decline accelerated and its chances in the struggle darkened perceptibly.

Let’s start with the battlefield. In the high mountain valley that is Dien Bien Phu, General Vo Nguyen Giap had launched what the Viet Minh would call the second stage of their offensive. This was where the Viets, who had already captured the outlying French positions, attacked the central strongpoints right in the valley. Giap hurled his battalions at the low hills which shielded the interior of the French entrenched camp, part of strongpoints “Dominique” and “Eliane.” The fight for Eliane-2 was particularly fierce. This phase of the siege has come to be known as the “Battle of the Five Hills.” The Viet Minh captured several important positions including, for a time, the peak of Eliane-2 itself. Just the previous day desperate counterattacks had ejected the Viet Minh from the center of that position and pinned them down at its edge. The redoubtable Major Marcel Bigeard was in the thick of it. Battle raged at Dien Bien Phu and the fight for the hills would go on for days longer, but on April Fools’ Day the combat was at its fiercest.

The parachute supply drops upon which the French camp relied were being curtailed by monsoon rain, worse every day. The French command calculated on April Fools’ Day that deliveries had reached a “catastrophic” level–averaging only 60 tons over the past four days, only a fraction of the amount necessary for a robust defense.

The French Expeditionary Corps, led by General Henri Navarre, conducted the campaign through its theater command for Tonkin–northern Vietnam–under General Rene Cogny and located at Hanoi. As the siege intensified Navarre and Cogny became increasingly adversarial, each blaming the other for the predicament they were in. The Expeditionary Corps had a forward command post at Hanoi, where Navarre had arrived the previous day, only for Cogny to refuse to meet him. The commander-in-chief summoned Cogny later and the two had a furious shouting match at headquarters. On April Fools’ Day General Cogny received a letter Navarre had written before leaving Saigon. The C-in-C could easily have brought the directive with him, but chose to send it by routine courier instead. The explosion between the two generals soured their relations, which never recovered, to the detriment of desperate French soldiers at the entrenched camp.

France had sent the chief of its armed services staff, General Paul Ely, on a mission to Washington to appeal for more help for Dien Bien Phu. While Ely was in Washington his American counterpart, Admiral Arthur Radford had suggested that a U.S. air strike by B-29 heavy bombers, soon to be dubbed Operation Vulture, could break up Giap’s siege force and destroy his supplies. Ely needed to consult with Navarre about an outside intervention of such proportions. He sent aide Colonel Raymond Brohon to speak to Navarre personally. On April Fools’ Day Brohon arrived at Saigon only to discover Navarre was not there. The consultations were delayed while Brohon traveled onwards to Hanoi.

Back in Washington, Admiral Radford had made his offer without any of the other chiefs of the U.S. armed services knowing of it. Redford summoned them, the Joint Chiefs of Staff, to a meeting to present his proposal. That, too, had taken place the previous day. Some of the Chiefs opposed him. Their negative views, expressed in writing, began to land on his desk on April Fools’ Day too.

The admiral had not acted in isolation. In fact the Operation Vulture project was backed by President Dwight D. Eisenhower and his secretary of state John Foster Dulles. A couple of days before Mr. Dulles had given a speech at the Overseas Press Club linking Indochina with an American threat of “massive retaliation.” At lunch on April Fools’ Day President Eisenhower entertained some top correspondents and told them he might soon have to make a decision to send planes from American aircraft carriers off the Indochina coast to bomb the Viet Minh at Dien Bien Phu. Soon afterwards Secretary Dulles phoned the president to report he was setting up a meeting with the congressional Gang of Eight to inform them of the Operation Vulture project. Meanwhile the Navy’s top officer, Admiral Robert B. Carney, cancelled a long-planned visit to his forces scattered across the Pacific–and he ordered the fleet in the Gulf of Tonkin to extend its cruise there.

Dulles and Radford were going to meet with the congressional leaders, who were certainly going to have questions. Among their principal concerns would be what allies the United States would  have for its intervention in Indochina. Washington’s most important ally in this regard was Great Britain. A few hours before his Overseas Press Club speech, Dulles and Eisenhower had met with the British ambassador to ask for London’s support. On April Fools’ Day the British foreign minister replied that “we fell it would be unrealistic not to face the possibility that the conditions for a favorable solution in Indochina may no longer exist.” Thus London, too, had been involved in this April Fools’ circus.

Dien Bien Phu would fight on for weeks longer. And the proponents of a U.S. intervention would play more cards before the game was up. Read the whole story in Operation Vulture.