Monthly Archives: May 2015

Barack Joins in the Tantrum

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May 30, 2015–Here it is, about thirty-six hours and counting until the legal authority for several Big Brother eavesdropping activities evaporates, and now President Obama joins the fray. Does he, constitutional lawyer that he is, stand against such draconian measures, surveillance that violates the Fourth Amendment and chills the First? Does he follow the lines of the surveillance reforms he offered in a speech in January 2014? No, and yes.

I’ve written in this space before about Mr. Obama going out on a limb with his senior spooks, drinking their Kool-Aid on warrantless eavesdropping and collection against all citizens which has never yet stopped a real terrorist action. I also wrote, after the January 2014 speech, that Obama’s reforms were mostly designed to make the surveillance palatable to Americans. Here Mr. Obama has simply lined up with the security hacks–and they have become hacks–now lacking imagination or creativity, relying excessively on old ways simply because they are familiar. The hacks are throwing a tantrum (see “Toddler’s Grandfather: NSA’s Terrible Twos Tantrum,” May 25, 2015). Barack is joining them.

What the president said yesterday bears quotation: “Heaven forbid we’ve got a problem where we could have prevented a terrorist attack or apprehended someone who was engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.” Unpack that language and you find that this is security for show, political cover. We should surveille all Americans using methods that have never been effective so that, after the next terrorist attack, we can say the bad guys could not have been apprehended with these methods ’cause we had that covered. (Of course, we can’t make that showing without the very kind of public investigation the spooks will fight tooth and nail, so what’s the point?)

Alternatively, Obama says we need this to “apprehend someone who was engaged in dangerous activity.” What is that? A door so big you can drive a truck through it. It was Ronald Reagan who said that “one man’s terrorist is another man’s freedom fighter,” and he was happy to paint black hats on those he didn’t like while pretending that vicious CIA-supported rebels–in fact the very islamist fundamentalist fighters whom we now consider the terrorist enemy– were echoes of our own Founding Fathers. “Dangerous activity” is in the eye of the beholder, and it is an invitation to even more arbitrary actions. Who’s to say what activity is dangerous? Security for show invites the arbitrary application of police power in ambiguous situations. Think of any of the police violence incidents we have been plagued now for months.

Sometimes Senate inaction can be a good thing. Let’s just let these harmful statutes expire. Write your senator and say so!

The Church Committee at 40

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May 29, 2015– It has been four decades since the “Year of Intelligence,” 1975, when United States intelligence agencies were investigated in depth by a presidential blue ribbon panel (the Rockefeller Commission), the Senate’s predecessors to today’s oversight unit (the Church Committee) and a House of Representatives investigative panel (the Pike Committee). Nothing like this has happened since. The work of the Church Committee has been the most lasting. Denizens of the secret world mostly recognize that investigation, where, increasingly, even they profess not to have heard of the others. After four decades what is there to remember?

A lot, according to former members of the committee, who assembled in Washington yesterday under the auspices of the Brennan Center for Justice of New York University. Heading the group was Walter F. Mondale, who went from his experience with Church to become the 42nd Vice-President of the United States; and former U.S. Senator Gary Hart, another member of the committee, along with its chief counsel, Frederick A. O. Schwarz, Jr. Also on the podium was Loch K. Johnson, a Church committee staffer. A variety of other members of the committee staff were in the audience. The event proved a combination of reunion and clarion call.

The Church Committee investigation has been mentioned many times in this space and it was instructive to see that members and staff have watched recent developments in U.S. security policy with increasing concern. Vice-President Mondale says that he is a strong supporter of President Barack Obama and admires him very much, but that what Obama has done with U.S. intelligence has been disastrous. The government’s excessive reliance on legal arguments hinged upon so-called “state secrets” is deplorable. The Foreign Intelligence Surveillance Court (FISC)–which the Church Committee was instrumental in the creation of–has gone far beyond its intended role as a magistrate to become a court of general jurisdiction. Now in competition with other federal courts, and serving the intelligence agencies as their secret, special court with no outside interference, the FISC has become a runaway locomotive.

Senator Hart commented that the historical question is why no inquiry like that of the Church Committee had previously been carried out. “It was a hugely disillusioning experience,” he remarked. “There were dark sewers beneath the city on the hill” And the committee had to fight for every scrap of evidence the intelligence agencies eventually allowed them to see.

Outside the formal sessions Church committee veterans to a man (no women staff were at the event unfortunately) were appalled at the breakdown of legislative oversight of U.S. intelligence that has since occurred.

Under the rubric of strengthening intelligence oversight, eighteen of the Church committee veterans, including both Mondale and Hart, signed on to a Brennan Center policy paper that envisions using the Church committee experience as a model for a new investigation of the U.S. intelligence agencies. Their idea is similar to, although less comprehensive than, the inquiry I laid out in my book The Family Jewels and fleshed out in the paperback edition of that work.

It is increasingly clear that public concern over the excesses of our security services is growing. In my view the intelligence agencies actually have a great deal to gain from a new-type Church committee which examines their activities and is then able to reform them and to  pronounce them above board.

Spooky Lawyer: Who’s the Real Disgrace?

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May 22, 2015–The other day I posted a piece commenting on the hypocrisy of the senior spy agency officials complaining about the New York Times action in using the full names of certain CIA officials. They did this in a letter to the editor of the Times. I noted how the law they invoked to justify themselves does not actually cover what they claim, and so on (see “Crocodile Tears: The Spooks Doth Protest too Much,” May 12, 2015). All of that was a standard ploy to intimidate–claim legal cover, assert that the alleged offense is life-threatening, and encourage the public to dismiss the opponent, in effect to kill the messenger.

The officials who cried and gnashed their teeth were, all of them, former top people at the CIA. As recounted in the post, more than a few had crossed the line of controversy themselves. Their motives in trying to knock down the Times (or anyone else who might object to high-handed CIA actions) were/are entirely transparent. But so far as the Intelligence Identities Protection Act is concerned, none of the spooks was a lawyer, so they have at least the excuse of not knowing any better.

Not so for Robert S. Litt, the general counsel for the Director of National Intelligence (DNI). It is his business to know the law. But Litt has yet to rise above the gunslingers who partner at big law firms, among whom he once walked. “The law” for them is what interpretation they can get away with at a given moment. The niceties of the Intelligence Identity Protection Act ignored, Mr. Litt denounced the Times in an interview published on April 27, saying “I think the New York Times disgraced itself over the weekend,” by publishing the names, continuing “these are people whose identities are protected by statute.”

I could not let this pass without comment. Robert Litt is the same man who conspired with the DNI, General James Clapper, to provide a fraudulent explanation for perjured testimony DNI Clapper gave Congress when directly asked if the National Security Agency is spying on hundreds of millions of Americans. The country now knows in horrific detail not only that that was/is true, but that it had been going on for years. General Clapper denied it. Fearful leader that he is, Clapper also rejected an opportunity to correct his testimony. Mr. Litt helped Fearful Leader contrive the excuse that he had been thinking about something different when asked the direct question, so his sworn testimony had therefore not been a lie.

I dissected the tortured logic of this flimsy assertion in a pair of columns early last year (both now form part of my longform “The NSA Watch,” which is available as a product on the Downloadable section of this website). Suffice it to say that both Mr. Litt and General Clapper–when preparing for Clapper’s testimony, when delivering it, and when presented the opportunity to correct the record to avoid misleading overseers and the public–refused to do so, and contrived to lie instead.

That is a “disgrace.” We are talking about government officials sworn to uphold the Constitution collaborating in perjuring testimony under oath, to mislead a duly authorized legislative body directly responsible for overseeing their actions.  Robert Litt has no business talking about anyone’s disgrace.

The Times defended itself well enough. The newspaper’s executive editor, Dean Baquet gave an interview to the same legal blog on April 29 arguing that the paper understood the CIA’s drone war as essentially a military operation and therefore felt unable to treat officials conducting it as purely intelligence operatives. In particular when, it turned out, the top guy behind the drones was a prime architect of the CIA torture program.

When do you stop going along, and begin to conduct real oversight? Conversely, when does appropriate security cross the line into coverup? Baquet was asked about Robert Litt’s assertion (repeated in the letter from top spooks to the Times) that by revealing names the newspaper was putting lives in danger. Baquet’s response: “I wish the CIA did not say that about everybody and everything.”

Just so. When top covert operator Jose Rodriguez conspired to obstruct justice, causing the destruction of videotapes that were evidence of CIA officers conducting torture, the rationale was that the tapes endangered lives.

The original rationale for the Intelligence Identities Protection Act in 1982 was that protecting names would save lives.

Let’s be very clear here: in all the recorded history of the CIA–now nearing seven decades–only one agency officer is known to have been marked for killing and then murdered. That man, Richard Welch, chief of station in Athens, had had his name in the press but had made rookie security mistakes the likes of living in a house known as the CIA’s chief residence (it was even on city tours) and not varying his route to work. Welch had been warned to take precautions and had not done so. His murderers, from a Greek revolutionary group, were later captured and revealed they had known all about the CIA man, but without ever seeing or even being aware of, the mentions of Welch in the press.

The CIA, terrified that disaffected agency officer Philip Agee was going around making a practice of blowing the covers of its people, made Richard Welch the poster boy for its campaign to obtain passage of the Intelligence Identities Protection Act.

Since the passage of that law there is no evidence that any CIA officer has been targeted because her/his name was revealed. Agency officers have died in combat, in plane crashes, in a random attack on the agency’s front gate, by suicide. I dare say–the evidence here, of course, would be secret–that more CIA officers have perished in domestic disputes than have been killed because their names were revealed.

Meanwhile the CIA uses the Act to hide the names of senior officials engaged in official business, acting in their official capacities, from public scrutiny.

The New York Times and its reporters are not sworn to uphold CIA regulations. Agency officers at a certain level of the organization should be known individuals. Equally to the point, the Identities Protection Act stipulates in defining the crime that the defendant  have engaged in a pattern of revelations of names (a la Agee), which the newspaper certainly has not done.

What is truly disgraceful is the CIA’s cynical scaremongering and its efforts to intimidate critics.

NSA: Death from a Thousand Cuts

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May 9, 2015–The Court ruled, now it has ruled again. The United States Court of Appeals for the 2nd Circuit found unanimously that the National Security Agency’s bulk eavesdropping program is illegal. Section 215 of the USA Patriot Act, according to the Court’s opinion–called “blistering” in the Washington Post–cannot sustain the weight being put upon it by government officials who claim the provision authorizes their electronic spying on U.S. citizens.

Actually you read the argument here first, more than year ago, in a series of posts. Longer ago than that were some posts I did for the History News Network. In them I probed the meaning of the legal term “relevance” as it applies to the phone records the NSA was vacuuming up. For a very long time those posts were archived. Earlier this year I gathered them together in a longform post called The NSA Watch (you can find it in the “Product” section of this website). The 2nd Circuit’s unanimous opinion follows our reasoning precisely. The NSA’s “expansive concept of ‘relevance’ is unprecedented and unwarranted” according to the opinion. “At its core,” wrote Judge Gerard E. Lynch, lead author of the Court’s opinion, “the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.” Meanwhile the application of such a standard equates to “an unprecedented contraction of the privacy expectations of all Americans.”

I recite this text and make the comparison to long-ago postings on this website to make this point: The reasons the NSA program is illegal were evident all along.

To cloak its actions the National Security Agency relied upon hysteria (and incomplete information) to quiet the doubts of Congress and mesmerize its captive judges on the Foreign Intelligence Surveillance Court, all the while hoping that if and when its actions were subjected to a real legal review, vague invocations of “terrorism” and “national security” would get NSA off the hook.

Let’s review the bidding– senior courts have found that the statute the NSA has relied upon to cover its domestic spying does not, in fact, authorize that intrusion. The law which contains Section 215, the specific provision at issue, is set to expire. The NSA–and the government as a whole–are unable to document more than a handful of cases, if that, which were assisted by its billions and trillions of intrusions. Most recently it was revealed that NSA officials themselves were questioning the viability of these programs on sheer cost-effectiveness grounds. Congress has failed abysmally in its oversight role.

But the real burden belongs at Fort Meade and with the NSA. The agency could have spared itself endless angst–not to mention fear of legal jeopardy and plain old-fashioned public ridicule. To repeat, the shaky legal rationale was evident from the beginning. Had the NSA simply said, “sorry, we made a mistake” and dismantled its offending program it would probably have earned some credit. Instead a constant procession of official attempts to justify the unjustifiable has left the agency in the position of dying from a thousand cuts of the knife. To put it another way, NSA is like a polar bear trapped on a rapidly shrinking ice flow that has broken off and drifted into the middle of the ocean.

–And by the way, some of the senators and congressmen who remain in thrall, trying to prolong this travesty, are the same people who tell us there’s no such thing as global warming.

Whatever Happened to V-E Day?

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May 8, 2015–A few years ago my companion and I were in Paris, going out for dinner on this date. The evening was nasty, horrible. Soaking rain. Then we found almost every place closed. Once we finally encountered an open cafe and sat to eat the waiter exclaimed at the extraordinary fact that we’d come out on the “holiday.” Extraordinary? Perhaps. All that evening, as I recall only one other couple entered the cafe. Holiday? Casting about, I soon realized that our gentleman was referring to V-E Day, May 8, 1945, the day that marks the end of World War II in Europe.

Actually what is extraordinary is how little Americans pay attention to the end of that war. This is a big event in France. In Russia they put on elaborate Victory parades. There are other observances too. America not so much. In our conversation with the waiter I hypothesized that the United States does not do so much with V-E Day because that day in 1945 the war still blazed in the Pacific, not to be ended until the Japanese surrender in August. I’d like to see that waiter again–because after reflection I realized the U.S. does not mark V-J Day very much either. The reason there, most likely, is that American atomic bombs dropped on Japan were the means chosen to force the surrender. The less attention drawn to the American use of atomic weapons the better. But our end result is that Americans hardly note a truly momentous occasion.

Imagine my surprise, therefore, when I learned that this year for V-E Day there will be a ceremony at the World War II Memorial on The Mall in Washington, one that will climax with a flyover by a procession of World War II-vintage U.S. aircraft, carefully preserved by folks who are mostly veterans. The aerial parade perhaps mimics the one over New York City in 1945–incomparable–when over a hundred B-29 bombers thundered over the town. Here the demonstration was a mixed display of fifty-six bombers, transport aircraft, trainers, and fighters arranged so as to evoke events ranging from Pearl Harbor to the Ploesti Raid, from D-Day to the Battle of Leyte Gulf, trailed by the “Missing Man” formation.

It was nice to see the United States do something for V-E Day. It’s sad it takes the 70th anniversary of that event to get us off our a**es to do it. I hope we can keep this up.

Dien Bien Phu’s Consequences: Geneva and Diem

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May 7, 2015–Last year was the 60th anniversary of Dien Bien Phu. At the time I posted a host of pieces observing aspects of the campaign, the battle, its outcome, and the American role. You’ll find these archived on the site. I especially wanted to call attention to the new evidence in my e-book on America at Dien Bien Phu, Operation Vulture. It’s perfectly true that Dien Bien Phu led to the Geneva agreements of 1954, because defeat in the battle convinced France it could no longer carry on in Indochina. Right now, however, we mark the 60th anniversary of the events that set the stage for the American War in Vietnam. These events, culminating in the “Battle of Saigon”–as intense as the Tet Offensive of 1968 but largely unremarked in history–cut the ground from under the French attempt to preserve a major role in Vietnam, confirmed the United States as guarantor of the Saigon regime, and established Ngo Dinh Diem as undisputed ruler of South Vietnam.

It happened this way: The Eisenhower administration, intensely preoccupied with the notion that it could turn back the Viet Minh challenge in Vietnam, continued to maneuver after Dien Bien Phu, attempting to keep all the pieces in play (especially the French Expeditionary Corps, already in Indochina and lavishly supported by U.S. aid). The French, desperate for help, appealed to the U.S. again and again. Washington considered intervening several times and in several forms, at the end the commitment of U.S. Marines in northern Vietnam to help defend the Hanoi region. Ultimately the French cabinet then in power lost its mandate to govern. Under its parliamentary system France then selected a new cabinet, one headed by the socialist Pierre Mendes-France, who came to power on a specific promise to make peace at Geneva or resign. That is what he proceeded to do.

Hostile to the Geneva negotiations from the outset, the United States took a very hands-off attitude towards them. President Dwight D. Eisenhower and Secretary of State John Foster Dulles considered Geneva a sham. (Which makes a mockery of the U.S. claim during the American War to be fighting to enforce the Geneva agreements.) Once a settlement was reached, rather than stepping up to support peace, the U.S. simply said it would do nothing to obstruct its implementation. Eisenhower and Dulles promptly broke that promise by agreeing to avoid the Vietnam-wide elections provided for by Geneva.

Eisenhower’s posture with respect to the emergent government of South Vietnam is quite revealing, as I discuss at length in my comprehensive book Vietnam: The History of an Unwinnable War. The Saigon leader Ngo Dinh Diem actually was selected by French-backed Vietnamese emperor Bao Dai. The leader began as prime minister of a Vietnamese state that, from a legal and juridical standpoint, was an “associated state” of the French Union. The French had negotiated a treaty with that entity endowing Vietnam with “independence,” but the French National Assembly never ratified the agreement. Despite (or because of) that status, the Diem government held France at arms length. As for Geneva, Diem had his negotiator denounce the agreements and the United States supported him in that. That move amounted to Washington assuming another measure of responsibility.

Further underlining Eisenhower’s posture is the letter he sent Diem in October 1954 promising aid to South Vietnam. Mr. Diem’s intransigence and rigidity were already being marked in Saigon with the first rumblings of a series of South Vietnamese moves to unseat him. In his letter, his formal undertaking, Eisenhower made aid conditional on Diem implementing reforms and opening up his government. The Saigon leader never did so. Washington never enforced the U.S. conditions.

In a succession of political crises that spanned the autumn of 1954 and spring of 1955 the chief of staff of the South Vietnamese armed forces threatened to overthrow Diem, the CIA intervened to make that impossible;  the Saigon leader promised to employ certain Vietnamese nationalists, made assurances in that regard, then did nothing; and finally Diem confronted the armed Vietnamese political-religious sects. Eisenhower had sent a friend, his Old Army colleague General J. Lawton Collins, to Saigon as his personal representative and the U.S. ambassador. With Diem at the promise-making stage, Collins reported that the Diem regime seemed on the right track. Once the Saigon leader began to show his fundamental rigidity, however, Collins concluded the U.S. backing for Diem had failed. Exactly a year after the Dien Bien Phu battle had been at its height, the U.S. proconsul in Saigon sought Eisenhower’s approval to withdraw aid to Diem, by that time actively using his Vietnam National Army to fight the sects.

General Collins even flew to Washington to argue his case. Eisenhower approved but then let himself be convinced otherwise by John Foster Dulles. Dulles, whose brother Allen ran the CIA, contrived to energize pro-Diem fighters in Saigon while delaying Lawton Collins’s return to Saigon long enough for the Diemist forces to obtain the upper hand. When Collins got back to Saigon the die was cast. As many as twenty thousand people were left homeless in Saigon, a couple of thousand ended up wounded, and there were five hundred dead.

American involvement only deepened when the South Vietnamese refused to participate in the Geneva-mandated elections. Meanwhile neither Diem nor his successors ever broadened the Saigon government as they had promised to do. This conflict proved to be based on empty promises from the very beginning.

The End in Saigon: 40 Years On

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May 4, 2015–This is a bit late–and it will be posted in pieces–but there is still a lot to say, perhaps though, to a diminishing audience. The first thing I want to say is “Hurrah!” While it was going on–and no matter what side of this thing you were on–the Vietnam war was pure trauma. Tragic too, it needs to be said. It went on for years then, for that very last part, got even worse, except if you were North Vietnamese. The angst, the sadness, the heart wrenching scenes of desperation and defeat–none of it was good and its was worse if you were involved personally, as Vietnamese or American. Now it is over. For many of the boomers, that trauma came at the formative moment of their lives.

This year it is over for the 40th time. There has been a remarkable outpouring of reflections, remembrances, speculations–in the press, broadcast media, and in events such as conferences marking the occasion. I’ve participated in several of them. I have reflections of my own.

The first is to note the continued vigor of those who yearn for a different truth. Like southerners refusing to acknowledge the “Lost Cause” following the Civil War, a significant number of Americans, primarily veterans and Vietnamese-Americans (refugees and their descendants) continue to insist that America did not lose the war, even that we won–or we won but threw away the victory–or that the Congress lost the war, or that the antiwar movement lost the war, or that the media lost the war. There are many variations on the theme.

In truth the war was lost quite convincingly. Our adversaries not only marched right into Saigon, our allies collapsed. We ended by desperately evacuating Vietnamese and Americans from the city even as the North Vietnamese and Liberation Front forces took over. The argument that Congress lost the war by refusing President Gerald R. Ford’s demand for yet another aid appropriation is misinformation. Not only was that aid request intended simply to fund a last-ditch stand–not anything that could have led to a military victory–there were unexpended aid funds lying unspent in current accounts at the time Saigon fell. And it was American presidents, not the Congress, who cut the aid requests from $2.2 billion for 1973, to $1.4 billion for 1974, to $1 billion for 1975.

Lost Cause deniers present well-worn arguments, over and over, in a litany that ignores refutations. The point above has been made before. So has the point that another important causal factor in the South Vietnamese collapse was the Arab Oil Embargo, which for a time specifically intended to cut off fuel deliveries to South Vietnam, and which ultimately meant huge increases in the price of oil–with immediate consequences for the South Vietnamese military and the Saigon government. That instantly soaked up a greater proportion of the available U.S. aid. This was something that had nothing to do with the U.S. Congress, media, or the antiwar movement. No matter.

Deniers make no effort to explain how the Thieu regime could eliminate the corruption on which its leader had relied to maintain his hold on power, and which functioned to drain away another slice of U.S. aid.

Deniers deplore aid to North Vietnam from the socialist camp but fail to compare that with U.S. aid to South Vietnam. The truth is that the United States delivered more aid to Saigon after U.S. forces left the war than China and Russia together provided throughout the conflict.

Saigon as well as Hanoi conspired to tear up the Paris Ceasefire on 1973. Deniers make no effort to analyze this in a balanced way, which is unfortunate since South Vietnam’s main chance for survival at that time lay precisely in ensuring the continuing operation of that agreement. The Korean war ceasefire of 1953, which has been behind the continuing division of the Koreas, could have served as the model for South Vietnam.

The argument that the National Liberation Front was defeated and the pacification war won ignores the fact that the United States itself moved the conflict from the level of an insurgency to that of a conventional war. The various formulas for isolating the battlefield by cutting the Ho Chi Minh Trail are all flawed–either the forces were not available in the moment, the logistics were not there, or the political evolution of the war had passed the point when the stated action was possible. The deniers don’t seem to care.

For the 40th time we observe the same history–that is, the North Vietnamese did march into Saigon. Our proponents of the Lost Cause, you would think, must be tired by now, since each time we revisit this history it has the same tragic and traumatic content.

A second point is that “victory” did not mean what our former adversaries thought. North Vietnamese authorities made a hash out of reunification and reconciliation, and never did escape entirely from wartime ways of thinking. The peace so many longed for was enveloped by fresh challenges from China allied with Cambodia–and the Chinese challenge continues to this day. The Socialist Republic of Vietnam, meanwhile, now maintains friendly relations with its erstwhile enemy, the United States, partly to counterbalance the Chinese challenge. At the same time, the dynamism of Vietnamese of the south has come to play an important role in governing the nation and as Vietnam’s economic engine.

To learn one must start by acknowledging true conditions and developments. Our Lost Cause deniers and our North Vietnamese victors have this in common: neither group can bring itself to acknowledge truth. At their most extravagant the deniers turn history on its head and claim the war was won. The Vietnamese victors willfully refuse to admit their abuses in the postwar era. More recently, when significant capital inflows to Vietnam are coming from the overseas Vietnamese, the Viet kieu, the Vietnamese government has been slow to amend regulations that separate and divide families, or to dismantle repressive wartime ideological controls.

When the next major anniversary of the end of the war comes it would be delightful to be able to report that we have moved past these counterproductive and spiteful attitudes.