Bush White House Violating the Constitution by Lieutenant Colonel Karen Kwiatkowski

The New York Times reports that the National Security Agency may have violated constitutional protections against unwarranted government intrusion into citizens' lives and confiscation of private property. In early 2002, President Bush signed an executive order that allegedly allowed the collection and operational intelligence use of international telephone or electronic mail conversations, even if one or more participants were American. This revelation is disturbing, coming in advance of a related book by Times national security reporter James Risen entitled State of War: The Secret History of the CIA and the Bush Administration.

In 1996 and 1997, I was stationed at NSA Headquarters, Fort Meade, Maryland, assigned to a unit of the Air Force Air Intelligence Agency, headquartered in San Antonio, Texas. Our commander at the time was Air Force Major General Michael Hayden. From my perspective, his reputation was sterling. I remember a visit he made to our detachment and to NSA. We listened to General Hayden eloquently share his theories about leadership and integrity. I remember it to this day because it was a breath of fresh air, in light of the Clinton administration appearances of national security incompetence and widely reported investigations by Special Prosecutor Ken Starr. Hayden told us that his family and his Catholic upbringing had instilled in him a strong sense of right and wrong. I came away from that briefing with my faith restored in Air Force flag officers, and a firm belief that here was a man with the innate courage to do the right thing.

A few years later, Lt. General Hayden was appointed NSA Director, in March 1999. I remember thinking that this could only be a good thing, given the pressures that NSA was under during my years there. In 1997 and early 1998, the NSA bureaucracy faced new demands, both technological and political. Technologically, commercially available software encryption had advanced significantly, and continued to advance at a rate that NSA, under constraints of budget and government personnel management systems, had been unable to match. The preferred approach, and something NSA had done for years, was to work hard to develop agreements with commercial hardware and software manufacturers for information sharing arrangements. These arrangements were designed so that, if necessary for national security, the NSA could efficiently get what it needed from the massive sea of commercial communications.

Politically, the problem was far more difficult. Certain members of Congress were demanding access to NSA telephone conversation records between certain identified overseas residents and their American co-conversationalists. NSA was happy as always to provide the part of the intercept that related to overseas targets; but the domestic material, material on American citizens, was not legal to collect or use. When this material was inadvertently collected on known American citizens, often on the US territorial side of the conversation, it was not made available to anyone, and was presumably destroyed.

Certain members of Congress were particularly interested in campaign donations from Chinese individuals, and in determining possible national security breaches or lapses that may have resulted from these financial relationships. Specifically, the concerns among some Republicans and some Democrats were that Clinton had given away, or sold, the technology farm to China. Had trade policy generosity to China been due to legal or illegal campaign contributions and deals made between agents of the PRC and associates of the Clinton administration? Inquiring minds wanted to know, and congressional representatives wanted NSA to provide the US side of the intercepts.

Clearly, this information would have been useful to the Congress, the special prosecutor and others - but unfortunately, warrants weren't immediately available. My impression was (and I saw no indications to the contrary) that the NSA Director at the time pushed back, requiring the appropriate legal warrants and documentation be presented before handing over any material. In other words, the NSA Director, and all of us, and American citizens in the fifty states and elsewhere, were protected by the Constitution. The system worked. However, Congressmen were frustrated, including Porter Goss, Chairman of the House Permanent Select Committee on Intelligence.

Between this activity in 1997 and 1998, and the attacks of 9-11, I don't know how the debate between Congress, the Department of Justice and the NSA leadership progressed. However, some aspects are crystal clear. Hayden served as NSA Director from 1999 until 2005, and now serves as the deputy to John Negroponte in the Directorate of National Intelligence. His is an intelligence career success story. The fifteenth director of the NSA, he served a longer tenure than any previous director, by half. In the intelligence field, there are few four star general positions and they are fiercely coveted. The intelligence reorganization that installed a super-bureaucracy above the CIA Director also created a brand new four star position, and Hayden was promoted to General in April 2005 to assume that position.

There are many questions we need to ask and answer regarding the 2002 executive order. What security, privacy and accountability guarantees do we have, should we have, and should we pursue regarding the government's data collection and retention process? Is executive eavesdropping on American citizens constitutional, in any way? Is it legal? In times of real or surreal war, Congress invariably becomes a rubber stamp for the bully pulpit at Pennsylvania Avenue. But our legislators have the distinct responsibility, and hopefully the motivation, to work hard and sort this out for the rest of us.

I may have been wrong about the integrity and personal courage of General Mike Hayden. His immediate boss, Ambassador Negroponte is a man known for bending the rules, for shaping political reality to pursue a "perfect" political solution. Negroponte's style seems to have withstood the test of time, whether the "final solution" of the day is the defeat of communism in Central America, the creation of an American-dependent Iraqi colony where he recently served as ostensible US Ambassador, or the increasingly mystical White House mission of "fighting global terror."

Apparently, the White House over a year ago asked the New York Times not to publish the facts of NSA eavesdropping on American citizens. True to character, the Times complied and cooperated. But now that we know about it, the media, every member of Congress, and every concerned American should be asking "Is this Constitutional?" and "Is this legal?" The executive branch itself should be asking these questions as well. Further, the executive branch would do well to ask, in a business sense, "Is this worthwhile?" and "Is it cost effective?" and "Does it work to improve national security?" I'd like to think that, in addition to these questions, my old boss Michael Hayden is asking the very simple, straightforward, and ultimately the most courageous question: "Is it right?"

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Karen Kwiatkowski, PhD, is a retired USAF lieutenant colonel who spent her final four and a half years in uniform working at the Pentagon's Near East/South Asia bureau.