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In July the Washington Post, under the headline "Panel Finds No
'Smoking Gun' in Probe of 9/11 Intelligence Failures," reported that the
House and Senate intelligence committees jointly investigating the
September 11 attack had "uncovered no single piece of information that,
if properly analyzed, could have prevented the disaster, according to
members of the panel." With an implied that's-that, the committees then
went on to examine broader matters concerning systemic weaknesses within
the intelligence agencies. That was good news for the cloak-and-dagger
set and the Clinton and Bush administrations. Systemic problems tend to
be treated as no one's fault. The committees were signaling that there
would be no accountability for mistakes made by the spies before
September 11.

In the past year, numerous media accounts have revealed screw-ups,
miscalculations and oversights. The FBI didn't pursue leads on potential
terrorists enrolled at US aviation schools. The CIA had learned that a
suspected terrorist--who would end up on the flight that hit the
Pentagon--was in the United States after attending an Al Qaeda summit,
and it failed to notify the FBI. The CIA didn't act on intelligence
going back to the mid-1990s suggesting that Al Qaeda was interested in a
9/11-type attack. Time magazine noted recently that George W.
Bush's national security team did not respond quickly to a proposal to
"roll back" Al Qaeda.

Hints were ignored and the intelligence system failed, an indication
that reform is vital. To reform effectively, it is necessary to zero in
on specific mistakes as well as big-picture flaws. Yet the
committees--distracted by personnel disputes and a leak
investigation--have not indicated that this sort of comprehensive probe
is under way (the Senate Judiciary Committee did examine the FBI's
handling of its botched investigation into Zacarias Moussaoui, an
alleged 9/11 conspirator, and identified numerous incidents of
ineptitude).

While the meandering September 11 inquiry is far from done, in recent
months both committees released little-noticed reports (accompanying the
intelligence budget they approved) showing that the systemic stuff is
pretty awful. The Senate committee observed, "it is very difficult to
determine how much money the Intelligence Community has budgeted for
counterterrorism, counternarcotics and counterproliferation." It
complained that the CIA, the National Security Agency and other
intelligence bureaucracies are not "able to produce auditable financial
statements"; that thousands of intelligence slots in the military go
unfilled each year, including scores of analysis openings at the US
Central Command, which is responsible for the fight against Al Qaeda;
that the intelligence agencies' terrorist databases are a mess; that FBI
training for counterterrorism agents is inadequate. The committee also
groused that the "community" has repeatedly ignored Congressional
requests for information.

The House intelligence committee offered a grimmer assessment. It
maintained that extra funding is being put "into an organizational
framework that gives little indication of being prepared to produce
intelligence capabilities that can address the national security demands
of the future." The committee noted that "significant gaps in the
Community's analytical capabilities are widening, and present
opportunity for further surprise in national security areas." It
implored Bush to act on the findings of a commission led by Brent
Scowcroft, Bush Senior's National Security Adviser, which last year
recommended placing the Pentagon's three largest intelligence-collection
agencies, including the NSA, under control of the director of central
intelligence. With that plea the committee was urging the reversal of a
decades-long trend in which military imperatives--rather than political,
economic or diplomatic concerns--drive the collection and analysis of
intelligence. Defense Secretary Donald Rumsfeld, though, has thwarted
such a shift.

And a House intelligence subcommittee put out a brief September 11
report in July that cited fundamental flaws within the intelligence
bureaucracy. "CIA's problems," it said, "require more than just
expressed commitment from senior CIA managers...the subcommittee will be
looking for deeds rather than words." Did that mean that the
subcommittee, ten months after September 11, was still not persuaded
that the CIA was acting vigorously to correct the institutional defects
that led to the surprise of that day?

Those reports, produced by committees traditionally cozy with the
"community," hardly inspire confidence in the spies. They could cause
one to wonder whether the committees are throwing money (the several
billion dollars added post-9/11 to the classified $30 billion-plus
intelligence budget) at a wasteful and disorganized bureaucracy. And the
problems are probably worse than described. For years, the intelligence
community has been plagued with fragmentation and insufficient
coordination and dominated by military concerns as the bureaucratic
rigor mortis that inhibits unorthodox thinking (as in how to better
understand the world, rather than how to be like Bond) has deepened. Mel
Goodman, a senior CIA analyst for twenty-four years, maintains that the
"analytical culture" at the CIA has "collapsed" over time, leaving the
agency without the ability to conduct effective long-term research and
analysis. And Gregory Treverton, a senior analyst at the RAND
Corporation and former vice chairman of the National Intelligence
Council, notes that within the CIA "an emphasis to be fast and quick
drives out the ability to think longer and harder" about subjects not in
the day's headlines. He sensibly favors transforming the analytical side
of the CIA into a much more open shop that publicly interacts with think
tanks, academics and nongovernmental organizations. "We need to put
together unconventional sets of people to get a deeper understanding,
one with a more historical foundation," Treverton says. "But how that
gets done is the question."

Indeed. How do you get any bureaucracy--particularly a clandestine
one--to behave creatively and responsibly? Inertia and infighting have
often derailed well-intentioned intelligence reform (see Rumsfeld).
Whatever its chances, fundamental reform--including demilitarizing
intelligence, reshaping the bureaucracy and transforming internal
values--is unlikely in the absence of a thorough, as-public-as-possible
investigation into the errors of September 11, large and small.

Taking on the intelligence community (and forcing a transformation)
appears to be too much for the committees, which have been slow to hold
public hearings. They have politely issued complaints, but they mostly
have eschewed fingerpointing for handwringing. In a slap at the
committees in July, the House approved legislation to establish an
independent commission to examine September 11 intelligence issues. In
the Senate, Joe Lieberman and John McCain have been pushing an
independent review that would also dissect transportation security and
diplomatic and military matters. The less than impressive performance of
the intelligence committees "has made people in both houses look at the
independent commission bill again," says one Democratic Congressional
aide. The Administration opposes such a panel.

In February CIA chief George Tenet testified that the agency had done no
wrong regarding 9/11, and that the attack was not due to a "failure of
attention, and discipline, and focus, and consistent effort." The
committees ought to question his grip on reality. Yet they don't seem
eager to disprove Tenet or to probe or challenge the covert bureaucracy.
They show no signs of exploring all the intelligence and policy errors
related to September 11. And so, they are unlikely to fix them.

The $4.4 million damages award in June against FBI agents and Oakland
police for violating the constitutional rights of environmental
activists Darryl Cherney and Judi Bari, wrongly accused of terrorism in
1990, represents more than the culmination of a twelve-year struggle for
vindication. The case also highlights the risks of today's antiterrorism
measures and offers lessons both daunting and encouraging about the
years ahead.

In May 1990, an explosion tore through the car carrying Earth First!
organizers Bari and Cherney. Bari suffered a fractured pelvis; Cherney,
less serious injuries. They assumed the bombing was the work of
antienvironmentalists, meant to disrupt planning for the Redwood Summer
of civil disobedience against the logging of old-growth forest.

The FBI Joint Terrorist Task Force jumped to quite a different
conclusion. As soon as Bari and Cherney were identified, the FBI
informed the local police and leaked to the press that the pair were
terrorists. The authorities claimed that Bari must have made the bomb
herself and that it had accidentally exploded while the two were
carrying it to an unknown target. Bari was placed under arrest in her
hospital bed. Police and FBI agents searched houses in Oakland where
Bari and Cherney had stayed and questioned their fellow activists. Over
the next two months, until the government announced it would not charge
the two environmentalists, the local police and the FBI continued to
call them terrorists.

Only after years of litigation did the truth emerge: The FBI, before the
bombing, had been investigating Bari and Cherney because of their
political activism. When the bomb went off, the FBI shaded the facts to
fit an ideological presumption of guilt. It was also revealed that the
FBI, even after Bari and Cherney had been cleared, collected data
nationwide on hundreds of individuals and groups merely on the basis of
their association with the two Earth First! activists.

The case demonstrates how the truth will come out when the judiciary
fulfills its constitutional role. With patience, skill and funding,
committed activists and lawyers can bring accountability to the FBI.
Just as Bari and Cherney won, just as the secret evidence cases brought
after the 1996 antiterrorism law melted in the face of judicial
challenges, so the material witness detentions and other rights
violations of today will ultimately be held unconstitutional. But the
FBI and the Justice Department will resist oversight and use secrecy and
delaying tactics to evade accountability, prolonging personal and
political damage. Justice was too late for Judi Bari. She died of cancer
in 1997.

The most sobering lesson of the Bari-Cherney case may be this: The FBI's
focus on politics over hard evidence meant that the real bomber was
never captured. In the same way, the Attorney General's recent
announcement that the FBI can monitor meetings and groups with no prior
suspicion of criminal conduct is likely to take the FBI down the path of
investigations based on politics, ethnicity or religion, while real
terrorists escape detection.

The timing of George W. Bush's proposal for a Cabinet-level Department
of Homeland Security--hastily unveiled when revelations about FBI lapses
were hitting the front pages--smacks of high-level damage control. And
it was followed by the announcement of the arrest in May of a
Brooklyn-born Al Qaeda plotter who allegedly intended to set off a
"dirty" bomb. This convenient coup was touted as an example of
cooperation between the FBI and the CIA and used to bolster support for
the Bush plan. Nevertheless, consolidating agencies that deal with the
issues of domestic security and reducing bureaucratic rivalry and lack
of direction make sense, if done right.

To be sure, reorganizing twenty-two agencies with 169,000 employees by
Bush's deadline of January 1, 2003, seems a staggering task.
Eighty-eight Congressional committees and subcommittees oversee the
components of the new department, and the turf wars will be fierce. And
Bush's legislative timetable nicely serves his political one: He'd love
to see the subject monopolize the Congressional agenda in the run-up to
the fall election, eclipsing the Democrats' potent issues.

Politics aside, many questions occur at the outset of the debate on the
new department. How, for example, will it solve the shortcomings of
intelligence gathering and dissemination and the endemic rivalry between
the FBI and the CIA? Will it be charged with coordinating intelligence
collection by other agencies or will it be merely a "consumer" of their
work?

And what of the non-national security functions of some of the agencies
slated to be aggrandized into the new DHS, like FEMA, first responder to
natural disasters? Will those worthy activities be relegated to
secondary importance? As Representative John Conyers Jr. asks, if
immigration is brought under the new department, what happens to the
right of political asylum when applicants are reviewed under the
criteria of national security?

These are a few of the hard questions related to mission and chain of
command that must be dealt with by Congress. Pace Bush campaign
rhetoric, government can work effectively for the public good,
but if this project is to succeed, Congress members should not let
themselves be rushed by a re-election-conscious Administration or
bullied into swallowing criticisms by charges that they're impeding the
war effort. Issues of privacy and civil rights should be vigorously
raised. The Ashcroft Justice Department's heavy-handed immigration
crackdown, for example, should be dropped in the trashcan. Such measures
are both an affront to civil liberties and will alienate the Arab
community--the best source of intelligence on Al Qaeda ops among us.

Homeland security does not mean building a better Fortress America. It
means building a better world. US pressure on Israel and Palestine to
achieve a just Middle East settlement would remove one of the main
irritants breeding hatred of America. Verifiable nuclear disarmament and
deterrence will more surely promote international stability than Bush's
pre-emptive war doctrine. Improving the lives of the world's poor--122
million people will die by 2015 of hunger-related causes--will weaken
terrorist support systems more effectively in the long run than sending
in US Special Forces. Homeland security is a global matter.

The question is not the 1970s cliché, What did the President know
and when did he know it? The appropriate query is, What did US
intelligence know--and what did the President know and do about that?
The flap over the August 6, 2001, intelligence briefing of George W.
Bush--in which he was told that Osama bin Laden's Al Qaeda network was
interested in hijackings and looking to strike the United States
directly--should not have focused on whether the President ignored that
information and missed the chance to prevent the September 11 strikes.
Still, a political dust-up ensued, as the White House, overreacting to
the overreaction of the Democrats, went into full spin mode. The crucial
issue was broached when National Security Adviser Condoleezza Rice
stated, "I don't think anybody could have predicted that these people
would take an airplane and slam it into the World Trade Center."

Actually, it was predicted, and the recent hullabaloo called
attention to the sad fact that the Clinton and the Bush II national
security establishments did not heed hints going back to 1995. In that
year a terrorist arrested in the Philippines said bin Laden operatives
were considering a plot to bomb airliners and fly a plane into CIA
headquarters--information shared with the United States. Two weeks
before that arrest, Algerian terrorists linked to Al Qaeda hijacked a
plane, hoping to crash it into the Eiffel Tower (French commandos killed
the hijackers at a refueling stop).

From 1995 on, US intelligence and the military should have taken steps
to detect and prevent a 9/11-like scheme. There was enough information
in the system to cause the US air command to draw up plans for dealing
with an airliner-turned-missile and to prompt the CIA and the FBI (and
other intelligence outfits) to seek intelligence related to plots of
this type. Apparently nothing of the sort happened. Not even when
terrorism experts continued to raise airliner attacks as a possibility.
In 1998 terrorism analysts briefed Federal Aviation Administration
security officials on scenarios in which terrorists flew planes into US
nuclear plants or commandeered Federal Express cargo planes and crashed
them into the World Trade Center, the Pentagon, the White House, the
Capitol and other targets. In 1999 a report prepared for the National
Intelligence Council noted that Al Qaeda suicide bombers could fly an
aircraft filled with explosives into the Pentagon, CIA headquarters or
the White House.

In 2001 the FBI--not looking for signs of a suicide-bombing plot--failed
to recognize the significance of information its agents received while
investigating foreign students at a Phoenix flight school and Zacarias
Moussaoui, a French national enrolled in a Minnesota aviation school,
later charged with participating in the 9/11 conspiracy. In July Italian
authorities warned the United States that bin Laden agents might try to
attack Bush and other Western leaders at the Genoa summit using an
airliner.

True, these leads were small pieces of data among the massive amounts of
material swept up by the sprawling intelligence system. But what's the
point of spending more than $30 billion annually on spies and high-tech
eavesdropping if the system can't sort out the valuable nuggets?
Hindsight is indeed easy. The Bush and Clinton administrations, based on
what's now known, don't deserve to be faulted for not discovering the
9/11 plot. But both failed to oversee the intelligence and
law-enforcement communities and make sure they were pointed in the right
direction.

There is evidence that the Bush team didn't move quickly on the
counterterrorism front. Newsweek reported that Attorney General
John Ashcroft prodded the FBI to concentrate on violent crime, drugs and
child porn more than on counterterrorism (a story the Justice Department
denied). And Defense Secretary Donald Rumsfeld threatened to veto a move
that shifted $600 million from the anti-ballistic missile program to
antiterrorism. Was there a counterterrorism policy delay? Other
questions linger. In July 2001 Richard Clarke, then the National
Security Council official in charge of counterterrorism, put out an
urgent alert, placing the government at its highest state of readiness
for a possible terrorist attack. The alert faded six weeks later. What
triggered it? What caused the stand-down? Should there have been a
follow-up?

The multiple failures of policy, imagination and coordination over two
administrations should be investigated. To assign blame? Accountability
does have its place in a democracy. The public has a right to know who
messed up and to be assured that those who did aren't in a position to
commit further mistakes. The point, of course, is to learn from those
mistakes and to be able to tell the public the failures have been
addressed. Does the intelligence system deserve more billions, as Bush
has requested, without demonstrating that it can use the money wisely?

After 9/11 the Bush Administration didn't rush to examine what went
wrong. We're too busy fighting the war, it said, while urging Congress
not to pursue the matter. Belatedly, Congress authorized a joint
investigation by the House and Senate intelligence committees, two
panels that traditionally have been cozy with the intelligence crowd.
That probe has gotten off to a terrible start--the investigators
fighting among themselves over whether to examine government failures or
to concentrate on how best to reorganize the intelligence system and
accusing the CIA and the Justice Department of not cooperating. One
positive consequence of the maelstrom over the August 6 briefing is that
it has prompted more calls for an independent commission, which Senators
John McCain and Joseph Lieberman have been advocating. Yet so far no
inquiry is committed to mounting a no-holds-barred examination and to
conducting as much of it as possible in public.

"I don't have any problem with a legitimate debate over the performance
of our intelligence agencies," said Vice President Cheney. But he has
opposed sharing the August 6 briefing with Congress. How can there be
worthwhile debate without information? After all, the recent tussle
began when the press sensed that the White House had withheld a
significant--or intriguing--fact. And how can there be information
without investigation? The issue is not what Bush knew--but why he
didn't know, and whether his Administration took sufficient steps before
and after that awful day to deal with the failings of the agencies that
are supposed to thwart and protect.

George W. Bush, it is true, did not create the FBI's smug, insular,
muscle-bound bureaucracy or the CIA's well-known penchant for loopy spy
tips and wrongheaded geopolitical analysis. But the President is now in
the political cross-hairs for the failures of these agencies in
identifying and understanding terrorist threats. And what's wrong with
that? Bush is President, after all, and it is mildly amusing to hear the
conservative claque plead excusable ignorance or the complexities of
governing as his alibi. The trouble is, this failure is too serious to
amuse. The ineptitude preceding September 11 arguably heightens the
gravest, most immediate threat to national security because, while the
dangers may lurk in the twilight zone, they can, as we learned, turn
real. Yet this nation is relying on two intelligence agencies that don't
even wish to talk to each other--and that not only failed to anticipate
September 11 but that have also failed to locate Osama bin Laden, the
man George W. Bush said he wanted "dead or alive," or to identify the
anthrax killer.

Instead of expressing a little executive impatience, even anger at
possible misfeasance, this President responds, once again, by calling
for more secrecy in government, more silence from his critics. And we're
not the only ones to suspect a connection between the cascade of
Administration warnings about new threats and its wish to turn the
public's gaze away from its shortcomings.

The imperative now is to get a down-to-business accounting of the
negligence or inertia that preceded September 11--a systematic inquiry
that is not a headhunting exercise but could begin the long-overdue
reformation of FBI and CIA operating practices. Whether this is the
Congressional investigation already under way or a new independent
commission such as Senator Daschle wants, the results will be persuasive
only if the public learns a lot more, not less, about how to cope with
this new era of shadowy threats. Also needed are elected officials
willing to ask the Administration tough questions--fearlessly, in public
forums, with no thought as to whether Dick Cheney will brand them as
"irresponsible."

If Bush were a leader of more substance, he would understand that a
thorough ventilation is in his self-interest, both politically and
otherwise. His green-yellow-red warning code is already a joke. Should
terrorists indeed attack again, a rattled populace may begin to wonder,
What did the President know? Where was the Vice President hiding? If
Americans are going to have to live with uncertainty for a long time,
then the government owes them a grown-up conversation on the
complexities, what is known and knowable, what is not. People can handle
straight talk, but that's not what they are getting.

This President used last fall's tragedy to pump himself up as the
resolute warrior who tossed complexity into the trash can. Bush's
I'm-gonna-get-you rhetoric described an open-ended series of
battlefields ahead and did wonders for his ratings. But the complicated
counterrealities have already blurred that picture, just as the recent
revelations greatly diminish his luster as the straight-talking cowboy.
Now he wants Americans to appreciate the gray areas and accept that some
facts are unknowable. And please, don't ask any more questions of your
leader, because it's unpatriotic.

Just one question, Mr. President: What else didn't you tell us after
September 11?

During the long months of post-September 11 presidential invincibility,
no member of Congress climbed further out on the what-did-Bush-know-when
limb than Representative Cynthia McKinney. "We know there were numerous
warnings of the events to come on September 11," the Georgia Democrat
said in March. "What did this Administration know and when did it know
it, about the events of September 11? Who else knew, and why did they
not warn the innocent people of New York who were needlessly murdered?"

The disclosure that President Bush was warned in August that Al Qaeda
was seeking to hijack domestic aircraft did not confirm all McKinney's
intimations--which extended to talk about how the Bush family might have
profited from the attacks. Yet she was freed to stake a claim of
vindication. "It now becomes clear why the Bush Administration has been
vigorously opposing Congressional hearings. The Bush Administration has
been engaged in a conspiracy of silence. If committed and patriotic
people had not been pushing for disclosure, today's revelations would
have been hidden by the White House."

McKinney's initial calls for an investigation of what Bush knew prompted
a storm of criticism. "McKinney has made herself too easy a target for
mockery," Atlanta Journal-Constitution editorial page editor
Cynthia Tucker announced in April. "She no longer deserves serious
analysis." After Bush aides condemned McKinney's "ludicrous, baseless
views," National Review Online editor Jonah Goldberg diagnosed
her as suffering from "paranoid, America-hating, crypto-Marxist
conspiratorial delusions." Barely a month after the McKinney-bashing
peaked, however, the Journal-Constitution headline read: "Bush
warned by US intelligence before 9/11 of possible bin Laden plot to
hijack planes," while Senate Intelligence Committee vice chairman
Richard Shelby, an Alabama Republican, said, "I believe, and others
believe, if [information on threats] had been acted on properly, we may
have had a different situation on September 11."

There were no apologies to McKinney. Brushing aside complaints from
Atlanta civil rights activists, Georgia Senator Zell Miller continued to
characterize his fellow Democrat as "loony." McKinney's critics kept
exploiting the opening she gave them with her unfounded rumination on
the prospect that something other than ineptness might explain the
Administration's failure to warn Americans about terrorist threats. But
her willingness to go after the Administration when few Democrats dared
earned her folk-hero status among dissenters from the
Bush-can-do-no-wrong mantra: The popular democrats.com website now
greets visitors with a We Believe Cynthia icon.

In Georgia, where McKinney faces a July primary challenge from a former
judge who labels her "off-the-wall and unproductive," a recent
Journal-Constitution headline read, "Revelations Give Boost to
McKinney." Letters to the editor, even from former critics, hail her
prescience. And Georgia Democratic Representative John Lewis, who once
steered clear of McKinney's call for an investigation, says, "I hate to
put it in this vein, but she may have the last laugh."

Quick, pinch me--am I still living in the same country? Reading and
watching the same media? This "Bob Woodward" fellow who co-wrote a tough
piece in the May 18 Washington Post demonstrating that the
now-famous August 6 presidential daily briefing, contrary to
Administration officials' claims about its contents, actually carried
the heading "Bin Laden determined to strike in U.S."--is this the same
Bob Woodward who co-wrote the Post's infamous "Ten Days in
September" series earlier this year, the ur-document of George W. Bush's
Churchillization? And this "Michael Isikoff," sharing a byline on the
eye-opening May 27 Newsweek cover story that shreds the
Administration's "we did everything we could" line of defense--is this
the Isikoff who four years ago defined national security in terms of
dress stains and cigar probes? One begins to suspect that unbeknownst to
all of us, the terrorists have indeed struck--the Washington, DC, water
supply.

An overstatement, to be sure. But it does seem to be the case that
wherever this potentially incendiary story leads, from fog of
unprovables to hot smoking gun, one change has already taken place
because of it that is well worth marking. For the first time since
September 11--or, arguably, since ever--the press corps appears ready to
expend more effort poking holes in the vaunted Bush Administration spin
operation than admiringly limning it. More to the point, Is a new
skepticism stirring around such heretofore Teflonized officials as
National Security Adviser Condoleezza Rice? Before her May 16
damage-control press conference, Rice was probably the Administration's
leading untouchable. After it ("I don't think anybody could have
predicted these people would...use an airplane as a missile," a
statement left bleeding on the floor after a pile of evidence came
forward showing plenty of people were predicting precisely that), her
status has taken a major hit. So, as Professor Harold Hill might put it,
certain wooorrrrdds are creeping into the media vocabulary--words
like "serious credibility gap," in the Newsweek piece.

It's been a long time coming. If anything "un-American" happened after
September 11, it was the triumph of the notion--propounded by the
Bushies, reinforced by the major media and far too readily accepted by
cowardly Democrats--that "patriotism" somehow equals "support the Bush
Administration." CBS's Dan Rather said it recently in an interview with
the BBC: "Patriotism became so strong in the United States after 11
September that it prevented US journalists from asking the toughest of
the tough questions about the war against terrorism," adding, "I do not
except myself from this criticism." The genuflection sometimes reached
levels that we might call comic, except that there's nothing comic about
a "free" press choosing to ape state-owned media, throwing rose petals
at the feet of officials from the most unilateral and secretive
Administration in modern American history ("sixty-nine years old, and
you're America's stud," Meet the Press's Tim Russert once said to
Defense Secretary Donald Rumsfeld).

One is not quite ready to say, on the evidence of several days' worth of
stories, that this sorry era is over just yet. The New York Times
and the Washington Post both ran editorials on May 17 that were
something short of being full-throated calls for investigation; from the
right-wing papers, the predictable yelping about how it's really
Clinton's fault.

All this will probably continue, but at least now it appears that it
will be offset by some post-post-9/11 aggression. It will be interesting
to watch what leads the media now follow and how far they follow them.
For example, some reports--originating with the BBC but picked up in a
few minor US outlets--indicate that US intelligence agents were told to
back off the bin Laden family and the Saudi royals soon after Bush
became President. Reporters might also look into the way the
Administration declined to continue a process of tightening overseas and
offshore banking regulations begun by the Clinton Administration in an
effort to track down narcotics traffickers and terrorists. The Bush
people acted partly at the behest of Texas Senator Phil Gramm, which
means partly at the behest of Enron--and which may have ended up helping
terrorists.

"Connecting the dots" has become the operative cliché about
whether intelligence officials should have been able to put together the
various pre-9/11 clues they received. Now, maybe the media will start
connecting some dots of their own.

For Senator Clinton to flourish a copy of the New York Post--the paper that has called her pretty much everything from Satanic to Sapphist--merely because it had the pungent headline "Bush Knew" is not yet her height of opportunism. (The height so far was reached last fall, when she said she could understand the rage and hatred behind the attacks on the World Trade Center because, after all, she had been attacked herself in her time.) But the failure of her husband's regime to take Al Qaeda seriously is the clue to the same failure on the part of the Bush gang.

I am beginning to suspect that Nation readers may not fully appreciate the challenges Attorney General John Ashcroft faces. What would you do in his place? Your intelligence agencies had no advance knowledge of the September 11 plot and don't appear to know much more about future attackers. Airport security screeners are letting test bombs and guns pass at alarming rates, and your immigration agency is so hapless that it issued visa extensions to two of the hijackers six months after they died flying planes into the World Trade Center towers. When you consider the threat from their side and the incompetence on ours, it's understandable that Ashcroft has cast his net so wide. He's shooting in the dark. In fact, the expanse of his net is probably inversely proportional to the depth of the intelligence he has received.

But just as with the terrorists themselves, understanding Ashcroft's motives does not justify his actions. To date, despite the thousands of Arab and Muslim immigrants arrested, searched, profiled and questioned, Ashcroft has charged only a single person--Zaccarias Moussaoui--with any involvement in the attacks of September 11. And he was arrested before the attacks occurred. Such broad-brush tactics are unlikely to succeed, for they give notice to potential targets, allowing them to evade detection while alienating the very communities we must work with to identify potential threats who may be living among them.

Ashcroft has shown no signs of getting closer to his target. And the less he finds, the wider he sweeps. He recently announced that he was extending to 3,000 more people his much-criticized initiative to subject male immigrants from Arab countries to "voluntary" interviews, despite the fact that the initial interviews have led to no further charges in the investigation. And having learned how easy it is to use immigration law as a pretext for criminal law enforcement when you lack probable cause, the Justice Department is now preparing to enlist local police officers to help enforce immigration law, a disastrous proposal likely to drive immigrant communities even deeper underground.

The lengths to which Ashcroft will go was revealed most recently by his indictment of Lynne Stewart, a 62-year-old New York attorney who has made a career of courageously taking on clients for whom few other lawyers are willing to risk their reputations. Her most notorious such case was defending Sheik Omar Abdel Rahman in his 1995 criminal trial for conspiring to bomb the tunnels into Manhattan. Now she's charged with providing "material support" to the sheik's organization, the Egypt-based Islamic Group, largely by abetting communications between the sheik--whom prison regulations prohibit from communicating with virtually anyone in the outside world--and others in the group.

The government simultaneously announced that it will make Rahman its test case for its unprecedented initiative to listen in on attorney-client communications. Confidential exchanges with lawyers have long been sacrosanct, because they are critical to any fair legal process. In the past, they could be intruded upon only with a warrant based on probable cause that the communications were intentionally furthering criminal activity, but the new regulations permit monitoring without a warrant or probable cause. But under regulations issued after September 11, the government claims the authority to monitor attorney-client communications without establishing probable cause for believing that the communications are being used for illegal ends, and without obtaining authorization from a judge.

Most troubling, Ashcroft is prosecuting Stewart although she has not been charged with furthering any illegal or violent activity of the Islamic Group, a wide-ranging Islamic political movement that engages in a great deal of lawful activity in addition to terrorism. While many have criticized the government for targeting a lawyer, of far more concern is its criminalization of speech and associations having no connection to terrorism. Unable to link Stewart to any actual terrorist activity in any way, Ashcroft has resorted to guilt by association. As a US citizen, Stewart will at least have an opportunity to defend herself in a public trial. Not so the hundreds of noncitizens still being detained on immigration charges in connection with the September 11 investigation, many long after their immigration proceedings have concluded. Under orders from Ashcroft, they are being tried in secret proceedings closed to the public, press, legal observers and family members.

In a major setback for the Ashcroft agenda, US District Judge Nancy Edmunds on April 3 declared the closed proceedings unconstitutional. She ruled that open trials are a fundamental feature of our justice system and that any closure must be carried out not in the sweeping manner that Ashcroft so favors but through means narrowly tailored to protect national security interests. The government has appealed, arguing that to act in a more narrowly tailored fashion might tip off Al Qaeda to what we do and don't know. But one has to wonder whether the government's real concern isn't that opening the proceedings might tip off the public to just how wildly John Ashcroft is shooting in the dark.

How cool is Jennifer Harbury? She is currently arguing her own case before the Supreme Court, demanding the right to sue the government because, she maintains, its leaders deliberately misled her about the murder of her husband, a Guatemalan rebel leader named Efrain Bamaca Velasquez who was killed in army custody during the counterinsurgency war in Guatemala in the early 1990s.

Harbury has a case. The State Department has confirmed that Col. Julio Roberto Alpirez, who was present during Bamaca's interrogation/murder, was a paid CIA asset. A CIA report alleges that Alpirez did the dirty deed himself. When then-State Department official Richard Nuccio informed Senator Robert Torricelli of that, Nuccio immediately found himself the target of a Justice Department investigation. A federal prosecutor accused him of betraying America by conspiring with Torricelli to blow Alpirez's cover, of destroying CIA officers' careers and of being an agent of the guerrillas. Although the United States offered no official charges or accusations, in a highly unusual move the CIA demanded that the State Department strip Nuccio of his security clearance, thereby depriving him of his livelihood. Harbury endured a thirty-two-day hunger strike to force those officials to come clean. She is now arguing that she could have saved her husband's life through the US court system had she known the truth during the period between his capture in March 1992 and his murder in 1993 or 1994.

A report by the President's Intelligence Oversight Board rejected the charge of deliberate lying by US officials but admitted that if the government had bothered to investigate "when Jennifer Harbury first raised the issue of her husband's fate" in the spring of 1992, the State Department "might have been able at a much earlier date to provide her with useful information." The key word here appears to be "useful."

Warren Christopher, Anthony Lake and the other Clinton Administration officials named by Harbury are probably right when they argue that leveling with her at the time would have made little difference in saving her husband's life. US courts do not have jurisdiction over the Guatemalan military (though US foreign policy officials often do). They also deny that they lied. But for procedural reasons, the ex-officials have to argue that regardless of whether they lied, a US citizen has no legal right to sue a public official who does lie. Solicitor General Theodore Olson filed an amicus brief arguing on behalf of the government's right to lie: "It is an unfortunate reality that the issuance of incomplete information and even misinformation by government may sometimes be perceived as necessary to protect vital interests," he maintains.

This particular case stinks for more reasons than can be precisely counted. In addition to the above, Bamaca was killed by a genocidal government that enjoyed the enthusiastic support of Ronald Reagan and George H.W. Bush. This is not only my opinion; it is the view of the Guatemalan Historical Clarification Commission's 1999 report, which condemns the United States for aiding a "criminal counterinsurgency" against the nation's indigenous Mayan population. America's Guatemala policy was anticommunism gone mad.

Moreover, if David Brock is to be believed, Olson is himself tainted by his lies to Congress. According to Brock's Congressional testimony, Olson lied during his confirmation hearings about his role in the Richard Mellon Scaife-funded "Arkansas Project," run out of the offices of The American Spectator and designed to undermine the Clinton presidency by any means necessary. What a surprise, therefore, that he thinks it's OK for the government to lie as well.

But the sorry truth is that the question of the government's right to lie is a lot more complicated than it looks. The Supreme Court has repeatedly enshrined in law the extremely provocative statement enunciated in the aftermath of the Cuban missile crisis by Assistant Secretary of Defense for Public Affairs Arthur Sylvester: "It's inherent in [the] government's right, if necessary, to lie to save itself." Dishonest officials have stretched the "national security" definition beyond recognition to protect not only thuggish murderers but also narrow political interests. But the principle itself is not wholly unsound. Although lies undermine the confidence in, and practice of, democracy, in the wake of the September 11 attacks, one can imagine circumstances in which a temporary lie might save lives without endangering the Constitution.

The problem is how to set enforceable limits. Government officials lie all the time. And while it is a crime to lie to Congress and to commit perjury, these acts are prosecuted in such a haphazard and nakedly political fashion that they can hardly serve as much of a deterrent. Lawrence Walsh's legitimate prosecutions of Reagan Administration officials who lied about matters of state were mocked by allegedly high-minded pundits like David Broder and George Will and overturned in a cowardly fashion by defeated President George H.W. Bush after the 1992 election.

Meanwhile, a fanatical cabal inside the Republican Party and Kenneth Starr's office manipulated these same laws to impeach President Clinton and disarm his popular agenda over a private lie not about a matter of state but a routine case of almost adultery. Given that hundreds of thousands if not millions of Americans have told this same type of lie to protect their families (or themselves) from humiliation, they saw this partisan gambit for what it was, punishing its perpetrators in the 1998 election. But the self-righteous pooh-bahs of the punditocracy--many of whom celebrated the Reagan-era liars and quite a few of whom told their share of adulterous lies--behave as if their hypocrisy were somehow patriotically inspired.

Jennifer Harbury continues to fight not only for justice for her husband but also for a reasonable definition of the government's right to lie. Bully for this brave woman who, despite her personal tragedy, takes democracy more seriously than its alleged protectors. She is a patriot to put the pundits to shame.

Blogs

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