Inconvenient News,
       by smintheus

Sunday, April 29, 2007

  Cheney begat the illegal NSA spy program

Last May I asked Did Cheney beget the warrantless NSA spying? It seemed a likely interpretation of news reports available at the time, but I had to admit that the theory was speculative. For the President had declared that CIA Director Michael Hayden dreamed up the program.

The publication of George Tenet's memoir next week would appear to put that question to rest. According to advance reviews of the book, Tenet pins the blame squarely on Cheney. That is an important political development, if true.

Ah, but can Tenet be believed? His account of his years at the CIA is highly self-serving and does little to restore his tattered credibility. What's more, reviewers agree that Tenet has it in for Cheney.


Here is what Michiko Kakutani says in the NYT review of At the Center of the Storm:

On the subject of Mr. Bush’s secretly authorizing the National Security Agency to eavesdrop without a court order on calls and e-mail messages between the United States and other countries, Mr. Tenet suggests that the idea originated with Vice President Cheney, who he says called him shortly after 9/11 to ask “if N.S.A. could do more” than it was then doing under laws in place since the 1970s.

That seems pretty damning. But was Cheney inviting the CIA Director to conspire with him in developing an illegal program, or merely seeking new refinements to NSA policies that would go no farther than the outermost limits of the law?

On the face of it, the former seems more likely. The NSA long stood accused of overstepping prohibitions against domestic spying (for example, by encouraging foreign intelligence agencies to conduct surveillance on NSA targets inside America, and then receiving those results through intel swaps).

Image Hosted by ImageShack.usBesides, already during the Ford administration Cheney had established a record of contempt for the laws prohibiting domestic wiretapping. Indeed, Cheney was no novice to gaming these laws. It would have been out of character for him not to seek to sweep aside the legal restraints imposed on the Executive Branch at the first opportunity.

In the Washington Post Karen DeYoung has this to say about Tenet's allegation against Cheney:

Tenet writes defensively about the controversial program to intercept domestic telephone calls involving terrorism suspects. The program was Cheney's idea, and the vice president briefed "the leaders of the House and Senate Intelligence committees 12 times prior to its public disclosure" in late 2005.

A more definitive statement than what we got in the NYT review, yet it highlights the essential problem with relying upon Tenet. He is highly defensive about the blame heaped upon him by the Bush administration, and determined to settle scores.

Image Hosted by ImageShack.usHe titles one chapter of the 549-page book "Missed Opportunities," but Tenet misses few opportunities himself to settle scores with Cheney and Rumsfeld and their top aides, and with Bush's first-term national security adviser and current secretary of state, Condoleezza Rice...

By contrast, Tenet's treatment of Bush, who presented Tenet with a Medal of Freedom six months after his departure, is relatively gentle.

Scott Lindlaw writing for the AP concurs:

The book is highly critical of Vice President Dick Cheney and other administration officials, who Tenet argues rushed the United States into war in Iraq without serious debate...

The memoir paints a portrait of constant tension between the CIA and the office of Cheney, who Tenet says stretched the intelligence to serve his own belief that war was the right course.

It alarmed Tenet and surprised even Bush, the author says, when Cheney issued his now-famous declaration that, "Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction."

Chastising Cheney nearly five years later, Tenet writes: "Policy makers have a right to their own opinions, but not their own set of facts." Here again, Tenet blames himself for not pulling Cheney aside and telling him the WMD assertion was "well beyond what our analysis could support."


Image Hosted by ImageShack.usIt's probably fair to say that apart from rehabilitating his reputation, this memoir exists primarily to settle scores, and that the primary target is Dick Cheney (rightly or wrongly). That raises the question, inevitably, of the credibility of Tenet's allegations wherever he is grinding axes.

For one thing, the book is replete with glaring gaps and dubious claims about his management of the CIA.

He reiterates a claim last year by Bush that the CIA's harsh interrogations of captured al-Qaeda figures "helped disrupt plots aimed at locations in the United States, the United Kingdom, the Middle East, South Asia, and Central Asia." He says the agency used "the most aggressive" techniques -- which he does not detail -- on "a handful of the worst terrorists on the planet" and that the questioning was "carefully monitored at all times to ensure the safety of the prisoner."

I find it hard to give credence to either assertion; there's no good independent evidence for the former, and the latter runs counter to overwhelming evidence that the CIA has tortured and killed prisoners in its "War on Terror". The NYT review comments on this subject as well:

Mr. Tenet does not grapple with reports that the C.I.A. has possibly been implicated in the deaths of at least four detainees in Afghanistan and Iraq. He does not grapple with the problem of sorting out the innocent people sometimes swept up in arrests along with genuine Qaeda suspects. And he sheds no light on the secret Justice Department memos establishing interrogation techniques...

As for the C.I.A.’s role in the lead-up to the Iraq war, Mr. Tenet admits that the agency’s reports about W.M.D.’s, cited in the 2002 National Intelligence Estimate, were flawed. He adds, however, that he himself believed Saddam Hussein possessed W.M.D.’s and he contests allegations that the C.I.A. caved to pressure from administration hard-liners on the matter of W.M.D.’s: “Intelligence professionals did not try to tell policy makers what they wanted to hear,” he writes, “nor did the policymakers lean on us to influence outcomes.”

Mr. Tenet also disputes the allegation made by Tyler Drumheller, the C.I.A.’s former head of the European division, that he — Mr. Drumheller — had raised serious questions about the credibility of a key source known as Curveball with top agency officials before the invasion. He does not, however, come to terms with Mr. Drumheller’s other allegation, made on “60 Minutes,” that a C.I.A. source in Mr. Hussein’s inner circle said in the fall of 2002 that the dictator had no active weapons-of-mass-destruction program and that this information was ignored.

You get some idea of Tenet's credibility from his treatment of his "slam dunk" statement to George Bush about alleged Iraqi WMD. Every reviewer agrees that Tenet remains livid that people in the White House leaked this information to Bob Woodward; he views it as a betrayal of him personally. Tenet presents such an elaborate justification for his infamous statement, drawing fine distinctions between actual evidence for WMD and the potential public-case for such evidence, that I find it hard to believe his claim that the "slam dunk" statement didn't really provide aid and comfort to the administration's headlong rush to war. Besides, Tenet has changed his tune several times on this issue:

Tenet initially denied having used the phrase "slam dunk." But, in a 2005 speech at Kutztown University in Pennsylvania, he said he regretted using the phrase to describe the case against Iraq. "Those were the two dumbest words I ever said," Tenet said.

Later that year I spoke at Kutztown about the run-up to the Iraq war, and one audience member told me that Tenet had not seemed at all credible when he spoke there.

The author Ron Suskind reported in his 2006 book, "The One Percent Doctrine," that Tenet did not remember whether he had used the phrase.

So now in 2007 Tenet is back to admitting once again that he did use the phrase. As Paul McLeary comments ...

the former head of the CIA seems to be dancing as fast as he can on this question, and has been for years. It's time someone called him on it.


Indeed, in today's WaPo former CIA agent Michael Scheuer portrays Tenet as two-faced:

Like self-serving earlier leaks seemingly from Tenet's circle to such reporters as Ron Suskind and Bob Woodward, "At the Center of the Storm" is similarly disingenuous about Tenet's record on al-Qaeda. In "State of Denial," Woodward paints a heroic portrait of the CIA chief warning national security adviser Condoleezza Rice of pending al-Qaeda strikes during the summer of 2001, only to have his warnings ignored. Tenet was indeed worried during the so-called summer of threat, but one wonders why he did not summon the political courage earlier to accuse Rice of negligence, most notably during his testimony under oath before the 9/11 commission.

Image Hosted by"I was talking to the national security adviser and the president and the vice president every day," Tenet told the commission during a nationally televised hearing on March 24, 2004. "I certainly didn't get a sense that anybody was not paying attention to what I was doing and what I was briefing and what my concerns were and what we were trying to do." Now a "frustrated" Tenet writes that he held an urgent meeting with Rice on July 10, 2001, to try to get "the full attention of the administration" and "finally get us on track." He can't have it both ways.

Scheuer himself has considerable axes to grind, but his portrait of Tenet rings true in this regard:

At a time when clear direction and moral courage were needed, Tenet shifted course to follow the prevailing winds...

He seems to blame the war on everyone but Bush (who gave Tenet the Medal of Freedom) and former secretary of state Colin L. Powell (who remains the Democrats' ideal Republican). Tenet's attacks focus instead on the walking dead, politically speaking: the glowering and unpopular Cheney; the hapless Rice; the band of irretrievably discredited bumblers who used to run the Pentagon, Donald H. Rumsfeld, Paul D. Wolfowitz and Douglas J. Feith; their neoconservative acolytes such as Richard Perle; and the die-hard geopolitical fantasists at the Weekly Standard and National Review.

Other former intelligence officers have written a public letter taking Tenet to task for his self-serving book:

It now turns out that you were the Alberto Gonzales of the intelligence community--a grotesque mixture of incompetence and sycophancy shielded by a genial personality. Decisions were made, you were in charge, but you have no idea how decisions were made even though you were in charge. Curiously, you focus your anger on the likes of Dick Cheney, Don Rumsfeld, and Condi Rice, but you decline to criticize the President.


So Tenet's memoir is egregiously self-serving, disingenuous, and dishonest. What are we to make of his allegation—the only revelation of consequence that I've seen in the book—that Cheney was the person who dreamed up the illegal NSA spy program? Is there any independent evidence for that charge?

I believed last May that there was. That post was an extended commentary on this article in the NY Times by Scott Shane and Eric Lichtblau. I think it's worth reviewing their report, given how weak is the evidence from Tenet.

As the reporters themselves seemed to recognize, they were presenting a somewhat confusing picture of the genesis of the warrantless NSA spying. Their sources seem to attribute the idea for the program both to Cheney and to then NSA director Gen. Michael Hayden. Their account can be summed up thus:

In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.

But N.S.A. lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any eavesdropping without warrants, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the Bush administration late in 2001...

As in other areas of intelligence collection, including interrogation methods for terrorism suspects, Mr. Cheney and Mr. Addington took an aggressive view of what was permissible under the Constitution, the two intelligence officials said.

If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said.

He added: "That's not what the N.S.A. lawyers think."

The other official said there was "a very healthy debate" over the issue. The vice president's staff was "pushing and pushing, and it was up to the N.S.A. lawyers to draw a line and say absolutely not."

In other words, Cheney was to blame (according to those anonymous sources) for anything that was objectionable about the program. The NSA, by contrast, was to be credited with refusing to violate the law, and for creating instead a very different and legal program.

The problem is that this falls afoul of both logic and the known facts.

For one thing, the federal government is prohibited by law from wiretapping without a court order any communications that begin or end in the U.S. That could hardly be clearer.

Also, the NSA has from the outset been prohibited by Executive Order and by every tradition of the Agency from domestic surveillance. Before 2001, the NSA upheld that prohibition against similar attempts to expand its operations into domestic surveillance.

And in any case, news reports have indicated that the program introduced after September 11, 2001 did (or does) indeed involve wiretapping communications that were purely domestic. The administration's claim that the targeted communications were only international calls appears to be simply a lie intended to blunt criticism.

So the anonymous sources' claim that NSA lawyers saved the day by insisting upon abiding by the law is nonsense. The program is patently illegal. Any internal resistence within the NSA either failed, or concerned the extent to which they would break the law.

Another fundamental problem in the logic of the account presented by Shane and Lichtblau is that it fails to reconcile the competing versions of how the program was first conceived. As their sources tell the story, Dick Cheney conceived of a sweeping new program that he tried to push on the NSA; the NSA refused, but did develop it's own program.

Yet as the reporters acknowledge, in March 2006 George Bush told a very different story. In that version, the idea for the program was Michael Hayden's.

The spying that would become such a divisive issue for the White House and for General Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.

Image Hosted by"Is there anything more we could be doing, given the current laws?" the president later recalled asking.

General Hayden stepped forward. "There is," he said, according to Mr. Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.

To my mind, this flatly contradicts the story that has Dick Cheney initiating the idea for the eventual program. The report does nothing to reconcile the two different stories.

Furthermore, as I argued at the time, it really made little sense for the NYT report to give so much prominence to Cheney's role if, in the end, his idea was rejected. At most, a nod in the Cheney's direction was all that was needed. The problem is highlighted in these twin paragraphs:

Image Hosted by ImageShack.usBy all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

For his part, Mr. Cheney helped justify the program with an expansive theory of presidential power, which he explained to traveling reporters a few days after The Times first reported on the program last December.

Huh? Neither paragraph coheres with what I've quoted above; according to large sections of the NYT report, Cheney did a heck of a lot more than simply justify the program after it became public. How can Hayden be the "principal architect" of a program that Cheney initiated?


The basic problem here is that the reporters are trying to meld together competing versions of the facts. Those versions were created with very similar goals in mind:

George Bush wished to convince the public that the program wasn't his own or the White House's idea (it was Hayden's proposal, offered unprompted at a meeting with Bush). Also, it was never the White House's plan to craft an illegal program (Hayden was the expert in what the NSA could get away with).

Image Hosted by ImageShack.usAfterwards some NSA types, seeking to defend both their Agency and Hayden, thrust a different version on the NYT reporters as Hayden was nominated for Director of the CIA. They opted not to contradict Bush openly. Instead, they preferred to deflect Bush's story as far as possible. They argued that: The program wasn't the NSA's idea (it was Cheney's idea, and a really illegal one at that). And it wasn't their goal to violate the law (they did their best to bring it back toward the law, despite all the pressure from Cheney). In other words, they sought to deflect any possible blame back upon Cheney:

By several accounts, including those of the two officials, General Hayden...was the man in the middle as President Bush demanded that intelligence agencies act urgently to stop future attacks...

Both officials said they were speaking about the internal discussions because of the significant national security and civil liberty issues involved and because they thought it was important for citizens to understand the interplay between Mr. Cheney's office and the N.S.A.

The fact that we have competing versions of the events is a tacit admission, by the by, that everybody on the inside knows the program is illegal.


Is there anything to choose from between the two versions? Cheney of course is a bald-faced liar (and he refused to comment on the NYT story anyway). But there's no particular reason to put any trust in NSA figures either, particularly since they're trying to justify or excuse a monstrously illegal program. It's perfectly possible that neither version of events is accurate.

We're left with the fact that the NSA lawyers somehow accepted a program similar to some earlier proposals that, before 2001, they would never have permitted; and further, it's a program that the NSA now wants to disown initiating. How, exactly, could that have happened without intense pressure coming from the White House?

I think the conclusion is hard to escape, that this program was instituted precisely because it was near and dear to Dick Cheney himself. That coincides with the evidence from George Tenet, as weak as it is, that Cheney approached him early on about violating the wiretap laws. That charge would not make much sense if, as Bush claims, Gen. Hayden immediately offered to do the same thing.

So what will Congress do about Tenet's allegation?

crossposted from Unbossed

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