Sunday, December 18, 2005

Presidential Confessions and U-2

"Warrantless intelligence surveillance by an executive branch unaccountable to any judicial officer -- and apparently on a large scale -- is gravely dangerous."

-- Washington Post, Dec.18, 2005
George W. Bush confessed in yesterday's radio addresss that, yes, he has authorized and reauthorized more than 30 times over the past three years a secret domestic program to spy on Americans living in the U.S. He also acknowledged, in effect, that the spying has been done without benefit of Fourth Amendment warrants or even the retroactive approval of the secret Foreign Intelligence Court of Review.

This was an extraordinary presidential confession, historic by any standards. As many newspapers, commentators, and politicians are observing today, Bush's behavior can be legally justified only if our constitutional system is understood to grant to every U.S. president total dictatorial power to ignore all U.S. laws and constitutional freedoms in times of war.

That has not been our system in the 216 years we have been governed by the U.S. Constitution. Indeed, our Founding Fathers fought the War of Independence precisely so that we could live under a system limited government. Our most fundamental constitutional principle is that limited government preserves individual liberties by imposing checks and balances on every branch of government to ensure that no one of them can over-reach to oppress individual citizens.

As Sen. Russell Feingold (D-WI) said yesterday after Bush's radio address, Mr. Bush is a "president" not a "king." We are nation governed by laws, not a single monarch whose powers are unchecked and whose deeds can remain secret as long as he so wills it.

In the midst of reporting Bush's radio speech, David Sanger of the New York Times today spends a few moments drawing an unexpected historical parallel. Bush's "admission" that he personally authorized domestic spying on American citizens without judcial warrants, Sanger writes, "was reminiscent of Dwight Eisenhower's in 1960 that he had authorized U-2 flights over the Soviet Union after Francis Gary Powers was shot down on a reconnaissance mission."

The parallel is far from exact. Still, it is useful as an instructive precedent, although perhaps in a way that Sanger did not realize.

I don't claim to have been a precocious child, but I was very young in the days of the U-2 incident and lucky to have a father who was teaching me how to read the Washington Post as it had to be read in those dark years of the Cold War. (And, it might be said, as all media should be consumed today.) Which is to say, he was teaching me how to read critically and look for the hidden truths that sometimes lay between the lines of what was called in those days the 'official' Washington news. (Today, we might call it "embedded" journalism).

No hyperlinks here. What follows is mostly from personal memory.

While flying the supersecret, high altitude U-2 spy plane over the Soviet Union, Francis Gary Powers was brought down on May 1, 1960. Instead of biting the suicide capsule issued to all U-2 pilots, as expected by his superiors, he either landed or parachuted to safety and was captured and imprisoned by Soviet authorities. They also took possession of the plane and its camera cargo, largely intact.

Americans knew nothing of this for at least a few days. The first hint I saw that something dramatic might have happened came in a tiny two- or three-inch article buried deep inside the first section of the Washington Post a day or two after May 1. It was reported that key White House and cabinet officials had been evacuated to Camp David as part of what the newspaper claimed was a routine "civil defense" drill.

In itself, this was unremarkable. Civil defense drills in that era still were as common as dirt. Then, as now, there were real threats to our safety. Then, as now, they were greatly exaggerated by opportunists and hypocrites. Then, as now, politicians and bureaucrats at every level of government furiously fanned the flames of public fear every so often, especially in election years, by staging various kinds of "duck and cover" drills.

As we now know, none of this would have saved anyone if the worst ever had happened. Those ridiculous civil defense drills only saved the jobs of a lot of politicians.

In that small and seemingly insignficant Washington Post news item, one odd fact stood out. The White House, it was reported, was trying to reach then-vice president Richard Nixon, who happened to be on the 1960 presidential campaign trail. It was said the White House wanted him to join the rest of the government at Camp David.

Now, that raised a few eyebrows in my house.

"It's not a routine drill," my father said. "Not if they're trying to bring Nixon back. He's in the middle of a campaign. Something big has happened. The White House is scared."

Over the next day or two we combed the Post, my father and I, to see what might explain the "routine" removal of the cabinet to Camp David. The likeliest candidate turned up in big black letters on the front page. An official U.S. government statement claiming that a weather monitoring plane out of Turkey had strayed off course and possibly was lost near or over Soviet territory.

"We've lost a spy plane," my father flatly pronounced.

Sure enough, within hours, or a day at the most, we learned that Soviet Premier Nikita Khrushchev was claiming in Moscow that the Russians had shot down a U.S. plane. Not much more than that was said.

The Secretary of State and President Eisenhower both appeared before press gatherings and openly admitted that one of our airplanes had 'accidentally' invaded Soviet air space and had been lost. Khrushchev countered that lie by announcing, for the first time, that the pilot, Powers, had been captured alive, he was in prison, and the plane's camera equipment had been retrieved. Yet, at the same time, he made statements suggesting that he didn't believe President Eisenhower or his advisors were aware of the U-2 flight, since they were continuing to work toward a more positive and peaceful relationship with the U.S.S.R.

Then, and only then, did Eisenhower own up to the truth. He admitted that he had personally approved the U-2 spy program. That was the unprecedented confession Mr. Sanger mentions in the Post today.

But it's worth noting that it came only after the highest levels of our government -- Eisenhower, his Secretary of State, the Secretary of Defense, and other high-ranking aides -- had repeatedly lied about the what's, who's, where's, and why's of the lost U.S. airplane.

Eisenhower's belated 'confession' not only was unprecedented, it was widely believed to be unwise. It certainly complicated international relations. You can see this for yourself by reading the diplomatic correpondence which is now available in the web archive of the Eisenhower administration.

After Eisenhower came clean, Khrushchev had no choice but to demand an apology. Eisenhower could not bring himself to give one. Allied and neutral governments who had been hosting our spy planes for years were so embarasssed that most felt compelled to distance themselves and deny us the use of their airfields. An important, long-planned U.S.-Soviet summit meeting was permanently scuttled.

For years afterwards, the consensus in diplomatic and congressional circles was that Eisenhower had blundered badly. First, by lying when he mistakenly assumed the pilot and his plane must have been obliterated high above the earth; next, when he belatedly told the truth after the evidence of Francis Gary Powers and his high resolution photographs were displayed in Moscow for all the world to see; third, by imprudently admitting to a long-running program of deliberate and illegal incursions over Soviet air space, at a time when world leaders fully expected (and wanted) a lie; fourth, by failing to seize upon Khrushchev's obvious suggestion that the U-2 incident must have been the work of lower-level war mongers in the U.S. government, rather than the president himself; and, finally, when Eisenhower refused to give Khruschev a pro forma apology for what he had already admitted was his personal decision to invade Soviet air space on a regular basis.

Domestically, the president also had been caught in an outright lie to the American people. As one cable from the American ambassador to Moscow says:
In this way, after three days, the State Dept. already had to deny version [sic] which obviously had been intended to mislead world public opinion as well as public opinion of American (sic) itself."
Before his Saturday radio address, Mr. Bush already had traveled well down the path of deceiving the American people.
  • Just twelve hours earlier, he told PBS News Hour host Jim Lehrer that the breaking story about unilateral authorization of wiretaps on Americans was "speculation." It was fact.
  • Bush said Friday night "we don't talk about ongoing intelligence operations." The next morning, he did.
  • He told Lehrer that even "talking about" the Times' revelations "would compromise our ability to protect the people." Again, the next morning he did so, anyway.
  • Bush claimed congressional leaders have been "briefed" on the program. Several said immediately afterwards, no "briefing" was given, merely a "notification."
Mr. Bush also claims the domestic wiretap program is "consistent" with the Constitution and that those carrying out his orders "receive extensive training to ensure they perform... with the letter and intent of the authorization." Can he be believed in this statement?

The Times says no:
[T]his White House has cried wolf so many times on the urgency of national security threats that it has lost all credibility. But we have learned the hard way that Mr. Bush's team cannot be trusted to find the boundaries of the law, much less respect them.
Most of all, Bush avoided "the main question directed at him," in Sanger's words, by members of Congress --
[W]hy he felt it necessary to circumvent the system established under current law, which allows the president to seek emergency warrants, in secret, from the court that oversees intelligence operations. His critics said that under that law, the administration could have obtained the same information.
The 'critics' are right, of course. As the post immediately down-thread from here points out, the FISA Court's raw statistcs "show an overwhelmingly accommodationist court, willing to rapidly issue eavesdropping warrants both before and after the fact."

In the words he uses and the justifications he offers for warrantless eavesdropping on American citizens, Mr. Bush has uttered only more lies. They are likely to unravel in the coming days and weeks.

One may be reminded of Eisenhower's U-2 confession, but at their core the cases are not comparable. Eisenhower lied first. Then he told the whole truth and accepted personal blame, although it was diplomatically disastrous to do so.

Bush lied. But, unlike Eisenhower, he had a lawful, rapid, and effective way to accomplish the same legitimate objectives. Instead, he has chosen what the Washngton Post today calls a "gravely dangerous" means "not consistent with a democratic society."

Bush, unlike former President Eisenhower, has yet to tell the unvarnished truth. The question still remains, When he had a clear choice -- one legal, one not -- for accomlishing the stated goal of protecting the public, why did Mr. Bush choose to subvert the Constitution and undermine individual liberties guaranteed by the Bill of Rights?

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