What Obama Doesn’t Know

Much has been hidden from the new president by the Bush team

Courtesy Nat Hentoff

No presidential transition team in recent history has ranged as widely as Barack Obama’s in its attempt to find out what minefields he may be walking into. For example, The Washington Post notes, 10 teams of 135 explorers, wearing yellow badges, have descended on dozens of Bush administration offices and agencies to look into their programs, policies, and records.

However, I keep remembering a dark warning to the successors of the Bush-Cheney legacy in a January 3 letter to The New York Times by Arthur Gunther of Blauvelt, New York: “Mr. Bush and Mr. Cheney have so deeply embedded tacit approval for illegal acts in government agencies that wrongdoing by their philosophical sympathizers will continue in shadow operations for years to come.”

How many of those shadow sympathizers will remain deep in the CIA, the FBI, Homeland Security—and, as I shall later emphasize, in the omnivorous National Security Agency, with its creatively designed submarine that, on the bottom of the ocean floor, will be tapping into foreign cables carrying overseas communications, including those of Americans?

Will the Obama sleuths be able to peer into plans of the military Special Operations forces around the world, whose SWAT-style moves can quickly inflame even our allies? Covertly autho rized four years ago by Donald Rumsfeld, these warriors are empowered to attack secretly any apparent terrorist venture, anywhere. No press allowed.

Will the new president, cognizant of the proliferation of retaliatory nuclear arms, presumably among our enemies, insist on signing off on each of those Special Operations forays?

Back at home, will President Obama order the countermanding of the FBI’s return to the unbounded surveillance practices of J. Edgar Hoover? In an order implemented as recently as this December—by FBI Director Robert Mueller (who says he’d like to stay on) and Attorney General Michael Mukasey—the FBI can start an investigation without requiring any evidence of wrongdoing. That is not change we can believe in.

Among many Obama voters, much optimism is created when he pledges that we will not torture. But even if he makes his intent official, emphasizes Mark Kukis (Time, December 8), “the Executive Order would have to be sweeping and reach deep into the government’s darker recesses. That’s because the Bush team has written so many legal memos okaying various techniques for interrogators working at a wide range of agencies [not just the CIA]. Some of these opinions have been disclosed publicly, but an unknown number remain classified.”

It will be up to the new Attorney General, Eric Holder—not a notably passionate constitutionalist in his previous role in the Justice Department—to, as Kukis adds, “issue new legal guidance that supersedes all those legal opinions, seen or unseen, if he hopes to prevent a return to such practices in the future” (emphasis added).

So, keep an eye on Mr. Holder. And if he does bury those John Yoo–style torture memos and other (and, here, I use the term loosely) “legal opinions,” Holder should be tasked by the president to reveal what they permitted.

For a long time, Senate Judiciary chairman Pat Leahy, a Democrat, and leading Republican member Arlen Specter have been trying to get those deeply hidden authorizations for war crimes that contradicted the broken-record insistence (“We do not torture!”) of George W. Bush and Condoleezza Rice.

Of all our intelligence agencies, the most unabashedly un-American is the NSA, because it has the continually expanding technological resources to make George Orwell’s Big Brother look like a cantankerous infant. No American president has come close to reining in the NSA, let alone bringing its officials up on charges of murdering our Fourth Amendment privacy rights.

In case you’ve forgotten, those specific constitutional protections were a result of the general searches conducted by British soldiers that turned American colonists’ homes and offices upside down. NSA’s eavesdropping on our phones and Internet activities have largely destroyed some of our rights as mentioned in the Constitution: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued but on probable cause. . . .”

(Computers and the Internet are now included.)

Of all the investigators of the formidably guarded privacy of the NSA, the most feared by these omnipresent spies is James Bamford, who for years has been penetrating their secrets in his books—Body of Secrets, The Puzzle Palace, etc. This year, he’s gone much deeper into that bottomless cavern than ever before, in The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America (Doubleday). I hope President Obama reads this book himself and demands that his intelligence directors also plumb it and give him their reactions—or better yet, their confessions of complicity with NSA.

There will be more on the “Shadow Factory” next week, as well as on Senator Obama’s startling (to me) vote for the FISA (Foreign Intelligence Surveillance Act) Amendments of 2008—after he had insisted he would filibuster against its passage. In view of the sweeping spying powers that this law, championed by George W. Bush, provides the NSA, will President Obama be a dependable restorer of at least some of our privacy rights?

John McCain, of course, would not have been.

Bamford ends his new book by bringing back one of my Bill of Rights heroes, the late Senator Frank Church of Idaho, whose Senate investigating committee, during the 1970s, first uncovered the frightening range and depth of NSA’s spying on us. “That capability,” said Church, “at any time could be turned around on the American people, and no American would have any privacy left, such [is the NSA’s] capability to monitor everything. . . . There would be no place to hide. . . . If this government ever became a tyranny . . . the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because resistance . . . is within the reach of the government to know.”

After quoting that warning from Frank Church, Bamford ends: “There is now the capacity to make tyranny total in America. Only law ensures that we never fall into that abyss—the abyss from which there is no return.” Are you listening, President Obama?