The Good FightA LIFE IN LIBERAL POLITICSWALTER MONDALE With David Hage SCRIBNER New York London Toronto Sydney
THE GOOD FIGHT 7 1 cia issues such as Vietnam or abuses of the Geneva Convention? The best buLwark we have is a strong, independent Senate. Nevertheless, the rules must be shaped to strike a balance between careful deliberation and abuse by the minority. Senator Tom Harkin of Iowa has proposed a reform Spies, Security, and whereby the number of votes required for cloture would decline slowly over, say, a month of debate, until only a mere majority is required. I worry the Rule of Law about such an approach: I think senators would simply wait out the clock and the Senate would become more like the House, where the leadership ; can force anything through and the body becomes a tool for deliverance, not deliberation. Maybe the magic number should decline slowly over a month, but no further than fifty-eight or fifty-seven votes. I would also prohibit the “hold” strategy that allows one senator to block a judicial nomination or a bill. I think that much power, placed in the hands of one senator, humiliates the Senate and makes a farce of the nominating process. Perhaps the Senate needs a rule allowing the leadership to call up issues by majority vote under certain circumstances. Despite what the rules now say, it’s important to remember that the Sen ate can, with the clear mandate of the Constitution, adopt new rules bymajority vote, at least at the outset of a new Congress. We made history D URING MY SENATE years 1 liked to set opinion, and three or four Sunday newsp aside severa every Sunday for reading—books on public affairs, journals l hours apers. I always found something that bore on my work in the Senate or deserv ed attention of from Congress, and I would usually go into the office on Monda y mornand established that precedent during that pivotal week in 1975. ing with a briefcase IuII of clippings, notes, and ideas for the staff. But I also wish that American voters would ask whether the candidates one Sunday in late 1974 stood out from the others. On Decem ber 22seeking their support will contribute to this impasse in Washington, the New York Thnes published a front-page story by Seymo ur Hershthis divisiveness that grips our nation, or whether they can be a force for detailing a massive and long-standing government campa ign of illegalreform and public compromise. I spent many years of my life in the Sen. spying on American citizens. Hersh wrote that the CIA had conductedate, and I deeply believe in its capacity for progress and compromise. I’ve illegal surveillance, surreptitiously opened thousands of pieces of mail,been in the Senate when it really worked, and I believe it can work again. conducted illegal break-ins, and infiltrated dozens of domestic dissidentBut we have to take care that we make it work. organizations—all in violation of its charter. In the Senate we had been hearing rumors of this sort of thing for months, hut even so, the story came as a shock. Within a few days my colleagues started making their way down to the Senate floor to talk about it. My friend John Pastore of Rhode Island gave an elegant speech asking, Flow could these things occur without anyone in Con gress knowing about them? Who’s watching these agencies? What’s happened to our country? That day he and Mike Mansfield began draft- 134 35
THE GOOD FIGHT Spies, Security, and the Rule of Law ing a resolution to establish a special Senate committee to investigate the regarded as frightening forces, and patriotic Americans never doubted behavior of the intelligence agencies—a committee whose work would that we had to protect ourselves at home and abroad. John Stennis of dominate my life for much of the next year. Mississippi, known in the Senate as Judge Stennis, chaired the Armed When Hersh’s story broke, most members of Congress were feeling Services Committee, and I once heard him say that he had told the direc numb on the issue of trust and deceit in government. We had spent most tor of the CIA, You just go do your work, and you don’t have to come hack of 1971 reading the Pentagon Papers and absorbing their lessons—how to me with all this information. generals and presidents had lied to the public about Vietnam. Then we So although some of my colleagues, including Gene McCarthy, had had gone right into the morass of Watergate and the trauma of Nixon’s started raising questions about the CIA, even if we had wanted greater resignation. scrutiny of these agencies we would have faced institutional harriers. We Even so, the CIA revelations stunned us. We had come of age assum would have had to change the way Congress was structured and the way ing that we were a nation of laws, and that the intelligence agencies to it compelled information from these agencies, and we probably couldn’t protected the American people. It will seem naive today, perhaps incredi have passed such changes in those days. ble, but when I first came into government, Americans still presumed that As for the FBI, no one could touch it as long as J. Edgar Hoover was government experts were generally right and public leaders were gener in charge. Even when he was senescent and behaving erratically, he still ally honest. Most of my colleagues, and most of the voters we represented. intimidated people. This stemmed in part from his reputation as a crime believed our country had enemies overseas who were dangerous, and hghter, a guy who knew how to keep criminals off the street. But Hoover criminals at home, and that we needed strong, aggressive security agen was also rumored to keep secret files in his personal office—embarrassing cies to protect us. We also generally agreed that if these agencies were material, which his agents around the country were supposedly encour going to do their work properly, it had to be secret. I knew few people in L ed to call in to him personally. Later, when we were investigating the Congress who would have argued otherwise. reign assassination plots, for example, our committee uncovered cvi This attitude was reflected in congressional oversight of the intelli dence that John Kennedy was having a liaison with Judith Campbell, gence community. No congressional committees had full, formal author who was the girlfriend of Sam Giancana, a mafioso who was also work ity over those agencies, nor did any committees have unambiguous power ing with the CIA to assassinate Castro. Our evidence showed that on to compel testimony from them. If the heads of the agencies did come up to the Hill to report, theirs was just anodyne testimony. The embarrassing [ the very day Hoover heard about this affair, he wrote a letter about it to Bobby Kennedy, then later went to see President Kennedy after gettingactivities—the risky operations, the secret pro;ects—would be disclosed FBI memo describing the affair. No one knows what they talked about, to only two or three people on Capitol Hill, maybe the head of Appro bit Hoover’s approach, when he found something ugly, was to go to thatpriations because he controlled their money, or the head of Judiciary, someone and say, “Don’t worry about it. Trust me. lt’s here and it’s underwho knew how to keep a secret. Moreover, these generally were members wraps and nothing is going to happen to it.” Maybe that’s why Lyndonwhom the agencies themselves chose to brief. Johnson refused to fire Hoover. Johnson, who had an earthy Texas way of This was fine with most members of Congress. Americans had a lot [saying things, used to say, “It’s better to have Hoover inside the tent pissof fear in the mid-1960s and early 1970s, and most people, 1 would say, mg out than outside the tent pissing in.”believed that the Communists were bent on destroying us. We had lived For all these reasons—patriotism, the fear of genuine security threats,through World War II and then Korea. The Soviets and the Chinese were iitimidation by the people who ran these agencies—Congress’s attitude 136 .137.
THE GOOD FIGHT Spies, Security, and the Rule of Lawhad for years been hands-off, leave them alone and let them do their jobs. about time that attitude went out of fashion. It is time for the Senate to That attitude began to change during Vietnam and after the release take the trouble, and, yes, the risks, of knowing more rather than less.”of the Pentagon Papers. That had been a cold shower, a story of decep In the first week of January 1975 Washington was on fire over the CIAtion and manipulation that ran from the Pentagon right up to the White allegations, and President Ford appointed a commission to investigate,House. The generals and the intelligence experts had lied to us, had kept with Vice President Rockefeller as chairman. Ford probably thought thatvital information from the public and even leading membe.s of Con would calm things down and pacify the skeptics in Congress, hut he wasgress—and in addition had made some extremely poor military calcula wrong. Pastore had raised a lot of serious questions, and a number of senations. Vietnam had failed and the country was now more skeptical. tors felt we had simply not been doing our job. In addition, some feLt that By the mid- l970s, many Americans presumed that the government the Rockefeller Commission wouldn’t get to the bottom of the matter forwas wrong much of the time. Nixon had left office in disgrace, and people fear of embarrassing Nixon and people who had worked in his administraunderstood that a president of the United States had commandeered and tion.politicized agencies that were supposed to protect the rest of us. A public Three weeks later, acting on a resolution by Pastore, the Senate votedopinion survey at the time asked, “Do you think government officials tell 82 to 4 to establish a select committee to conduct its own investigation.the truth most of the time or do they lie most of the time?” Shocking per Frank Church, who was on the Foreign Relations Committee and hadcentages said they lie most of the time. So when Seymour Hersh’s exposé been in the Senate almost twenty years without chairing a major comcame along, it stirred the cesspool of public cynicism. mittee, was Mansfield’s choice as chairman. William Miller, a former For To make matters worse, shady behavior within these agencies was eign Service officer and a talented Senate staff member, was appointed starting to undermine the broader justice system. Frank Johnson, a dis staff director. The other Democratic members were Phil Hart of Michi tinguished federal judge from Alabama, later told me that, over the years, gan, one of the deans of our delegation, and three relatively new senators: he noticed that juries granted less and less credence to the testimony of Robert Morgan of North Carolina, Walter Huddleston of Kentucky, and FBI agents. The word was out that they were playing games. He said thi5 Gary Hart olColorado. The Republican members were all respected sen troubled him because the agencies that were so important to the criminal ators of great integrity: John Tower of Texas, Barry Goldwater of Arizona, justice process had begun to lose the public’s confidence. Charles “Mac” Mathias of Maryland, Richard Schweiker of Pennsylvania The Seymour Hersh stories and a lot of fine subsequent report and Howard Baker of Tennessee. ing brought all this to a crescendo. The old guard, the hands-off crowd, I also asked to be on the committee. I had been shaken by the loss of started giving way to the younger senators, and to a new idea that while public trust after Vietnam, and I was still offended by Nixon’s abuse of these agencies are essential to our security and must operate in secret, public office. I had written a book, The Accountability of Power, which they must also operate under the law and make themselves accountable made the case for greater accountability of the presidency to the other to the legislative branch and the courts. The general feeling was that the branches of government and to the public. I still believed in government Congress had to take responsibility for these agencies, to find out what it as a force for good, hut I wasn’t sure how long we were going to be able to didn’t know—and hadn’t wanted to know. As Mike Mansfield, the major hang on to the public’s confidence. This wasn’t just a matter of a few little ity leader, observed, “It used to be fashionable. for members of Congress . . spy capers. This was a question of whether large, powerful agencies of the to say that insofar as the intelligence agencies were concerned, the less executive branch and even the White House were going to obey the law they knew about such questions, the better. Well, in my judgment, it is and make themselves accountable. 138 139 .
THE GOOD FIGHT Spies, Securicy, and the Rule of Law Everyone on the committee understood that we had a volatile assign Most of us endorsed Schwarz’s strategy, hut President Ford was reluc ment, but when we first convened we weren’t sure how to proceed. The tant to let us get too close. In February, we had private sessions with mandate was immense. We were supposed to examine every federal intel Edward Levi, Ford’s attorney general, and William Colby, the CIA direc ligence agency, including the CIA, the FBI, the Defense Intelligence tor, to set ground rules for the investigation. In early March, Church, Agency, and the National Security Agency, all over a span of forty years Tower, MiHer, and Schwarz went to the White House for a meeting with of activity. We had a staff of 135, including 53 investigators. We had to Ford and his secretaries of defense and state, Jim Schlesinger and Henry develop document requests, draw up witness lists, write chronologies of Kissinger, to specify the sort of documents they planned to request. In the abuses we knew about, and investigate whether there were others. Pas 1973 the CIA had been implicated in Watergate, and Schlesinger, then tore had told reporters he assumed the committee would meet excLusively CIA director, asked his staff to compile a list of all activities conducted in “executive session,” that is, behind closed doors. Church, on the other outside the agency’s charter, a list that became known as “the family jew hand, said he hoped to hold a number of hearings in public. There was no els.” We wanted that. We also wanted a copy of a report that Colby had precedent for our work. We had a profound investigation, perhaps never prepared for Ford on alleged CIA involvement in overseas assassination to be repeated. We were going to be looking at the files and classified docu plots. In addition, Church asked for a series of classified White House ments of our most secret agencies, and that had never happened before. documents and memoranda from the National Security Council. The committee itself had different theories on how to proceed. Some For several weeks we sent document requests of this nature over toRepublican members, John Tower and Barry Goldwater among them, the White House and got the stall treatment—”We can’t find that” ordidn’t want to do an awful lot at first. Many clung to the idea that we “It will take us some time to produce those documents.” Fritz Schwarzshouldn’t be digging around in the operations of secret intelligence agen and Frank Church even met with Rockefeller to pry loose the documentscies. I’m sure some also worried that this would just be a Nixon witch being delivered to his commission. Schwarz told me later that Rockefellerhunt. Bill Miller, for whom I developed great respect, thought we could charmed him, mentioning the family toy store, hut he didn’t give up theconduct our investigation mainly through interviews with agents and documents.agency officials, then put the story together without digging around in Some members of our committee were fine with this. They didn’tthe sewer for facts. That view was not shared by the committee’s chief want to embarrass Ford and they weren’t sure about the scope of our mancounsel, F. A. 0. Schwarz Jr., who came down from New York to join the date. But after this went on for a few more weeks, we knew we were getcommittee’s staff. Fritz, as he was known, was an heir to the toy-retailing ting stonewalled by the executive branch. If this continued, we would justempire but was a successful trial lawyer and later head of the Brennan be wasting our time and perpetuating the original problem—an executiveCenter for Justice at the New York University School of Law. He was a branch unaccountable to Congress.Harvard Law graduate and a partner at Cravath, Swaine & Moore, who Meanwhile, the story continued to unfold in the press. In late Febhad advised the New York Police Department on difficult issues such as ruary, Daniel Schorr of CBS News reported, for the first time, that theuse of deadly force and handling of public protests. Schwarz was a litigator CIA was alleged to have developed plots to assassinate foreign leaders.at heart, an investigator, and he felt we had to see the files, get the docu Over the next month, additional details on alleged assassination attemptsments, start digging, and then draft the questions and call witnesses. Fritz continued to trickle out. At the same time the CIA, or agents acting onargued that without exposing specifics we couldn’t document a case for their own, had begun a counteroffensive. They said our investigation, andgenuine reform. a parallel investigation in the House, threatened to expose covert work 140
THE GOOD FIGHT Spies, Security, and the Rule of Law and cripple the nation’s intelligence gathering. One even told a colum pendence from the White House on Vietnam and Watergate. We had nist that he was prepared to lie under oath before our committee if that’s John Tower, the committee cochair, who ultimately earned considerable what it took to protect national secrets. That was the start of a conserva prestige by making this committee work. These people were moderates, tive drumbeat against our work that would continue for the rest of our senators for whom these issues were really not partisan matters. The intel- investigation. ligence abuses had occurred under both parties—we documented abuses Originally we planned to complete our work in eight months. Gener under every administration from Franklin Roosevelt to Richard Nixon— ally when senators establish a select committee on a topic, they are anx and people who believed in the law and accountability, Republican and ious that it not turn into a permanent committee. I soon saw that our Democrat, were troubled by what they were hearing. They all were serious deadline was unrealistic, and that if we set ourselves an artificial timeline, about the Senate’s constitutional responsibility to oversee the executive the Ford administration would have no trouble waiting us out. Finally, branch, and they insisted that the White House produce what we needed. at a committee meeting on April 23, we argued it out. Gary Hart said In addition, the Republicans had just come through the embarrass we needed a backup strategy in case the White House continued to stall. ment of Watergate. They had supported a president who let them down Goldwater thought we should scale back the document requests; he was and humiliated them. I remember Goldwater telling me that he had once afraid we would get something sensitive and then someone on the com told Nixon, “The only time you ever had me up to the White House was mittee or the staff would leak it to the press and embarrass us. But Phil when you got your ass in a crack.” So the Republican side had a mood of Hart seemed to speak for most of us when he said, “The White House has self-preservation, a sense that they would he loyal to the White House in just given us two ‘go to hells.’ What is our response going to be?” I was their fashion. not as senior as Phil Hart or Barry Goldwater, but I did have some experi Then, too, our Republican friends began to realize that the investi ence conducting investigations and working with reluctant sources. I lit gation was playing well with the press and the public. As our commit a cigar—often smoke in committee meetings in those days—pushed my tee began uncovering a series of far-fetched CIA espionage plans, Barry chair back, and said, “We will have to wait them out.” We had to get in Goldwater called a news conference one day to discuss a bizarre gadget a position where the White House knew we were going to be around as developed by the agency, a “hio-innoculator” that was supposed to inject long as necessary. My colleagues agreed, and in May we voted to extend poisons into targeted victims from long distances. He drew a big crowd of, our timetable. and the next day his picture ran on the front page of newspapers around In today’s environment I don’t believe that would work. The parti the world. I teased him, saying that he had staged a publicity stunt. “Of san divide is so deep that, unfortunately, a president can usually count on course I did,” he said with a big smile. “1 learned it from Hubert.” members of his own party in Congress to protect him. This is precisely Eventually Ford came around. He was a loyal Republican, hut he was what we saw in 2007 and 2008, when Congress tried to investigate the not an ideologue. His attorney general, Edward Levi, the distinguished intelligence failures that led to the war in Iraq. Bush and Cheney knew former dean of the University of Chicago Law School, understood the they would be out of office by January 2009 and figured they could string gravity of the abuses. And the politics were with us. People were confused out the investigators until then. But it was different for us. Bill Miller, our and angry about what they read in the newspapers. Members of Congress committee staff director, had been a staff aide for Senator John Sherman were under a lot of pressure to do something on this. They couldn’t just Cooper, a Republican. We had Republicans such as Dick Schweiker, Mac walk away from their responsibilities, as they tried to do later with the Mathias, and Howard Baker, who had demonstrated a good deal of inde intelligence failures on Iraq. 142 143 A
THE GOOD FIGHT Spies, Security, and the Rule of Law But we made accommodations on our side, too. We didn’t want dowless, bunkerlike room high up in the Capitol, we conducted our firstthe investigation to seem partisan, or something designed to embar formal hearing, and William Colby presented a history of CiA covertrass employees of these agencies. I insisted that we get key documents, actions. A week later he confirmed to our committee that the CIA hadbut I also argued that we should limit the degree of detail we asked for. sponsored several foreign assassination plots, including a plan to kill FidelWe wanted only to learn about what happened and how it happened. Castro and a bungled attempt on the life of Patrice Lamumba, prime minWe were not out to get individuals. I knew that if it looked like we were ister of the Congo.undermining America’s security, we were going to get shut down—and When members of the Rockefeller Commission saw the assassinationprobably deservedly. files, they realized that they couldn’t handle it on their own. The topic In addition, we knew that our inquiry had little precedent for in the was so full of explosive allegations that, I think, they decided they hadSenate’s long history. During the Civil War, a Conduct of War Commit. to have some sort of understanding with the Congress, particularly withtee had made Lincoln’s life miserable. Then in the 1920s there some hear the Senate. At the end of that month, they concluded their investigation ings were held on the Palmer Raids on suspected anarchists. But before, rather abruptly and began turning their files over to us.during and after World War II, nobody wanted to interfere with intelli In September we began our public hearings, and people began to gence operations. This was the first time—and maybe it would be the last grasp the gravity of the investigation. We produced evidence of a series time—that a congressional committee would be able to operate the way of embarrassing CIA activities, including outlandish programs to develop we did, conducting a deep, broad, and unrestricted investigation of our shellfish toxins and other poisons. We also examined the Huston Plan, nation’s secret agencies. Fritz Schwarz and Bill Miller spent a lot of time a strategy developed by a Nixon aide named Tom Charles Huston to use figuring out how to slice this watermelon so we could get what we needed the FBI and the CIA to conduct illegal burglaries and open the mail of without hurting the agencies or risking our country. thousands of American citizens. These questions generated no little friction in the Senate, with some I At this point, a second dynamic began working in our favor. Many of our colleagues charging that the probe would help the enemy and of the CIA’s career professionals were offended by the illegal operations expose agents to risk. In December 1975, the CIA bureau chief in Ath- 1 and were willing to say so. For the good agents, the professionals, that was ens, Richard Welch, was gunned down on his way home from a partyi Looney Tunes time. One agent in particular stood out—he had an Irish an incident that shocked us all. A few months after that, my colleague surname, although in our reports we used pseudonyms to protect agents’ Milton Young of North Dakota gave a speech on the Senate floor imply-. safety. We asked him to testify about the effort to assassinate Patrice ing that we were responsible for revealing Welch’s identity and, thus, foi Lumumba. He thought the project was shameful. He said, “When the his death. Fortunately, the facts were on our side. I went right down to the agency wanted to do something like that, they always picked an ethnic floor myself and pointed out that the committee had never been given his like me. That’s the kind of work we do. The nice guys up in the front name. We insisted on that rule—we never received names and couldn’t . shop—the Waspy Ivy League guys—don’t do that sort of thing.” The have leaked any. I also pointed out that a Greek newspaper had published image of classy professionalism began to crumble pretty quickly. the address of the CIA office in Athens. Nevertheless, we had to step F Clearly, these doubts ran straight up and down CIA, to the point carefully because those accusations circulated frequently. where intelligence-gathering had become dysfunctional. We learned Eventually Ford’s stalling tactics failed and the administration beg that the head of counterintelligence, James Angleton, whom the other making witnesses available. On May 15, behind closed doors in a win- ents called Mother, was so wary of corrupted intelligence that he simply ‘44 .145.
THE GOOD FIGHT Spies, Security, and the Rule of Lawstopped reading the agency’s own intelligence reports. Even Bill Colby, gence program,” The Bureau’s own program for fighting subversive activwho had been involved in some pretty brutal stuff during the Phoenix ity—or what it considered subversive activity—inside the United States.counterintelligence program in Vietnam, came to feel that the secret What we read in those files is well-known now, hut at the time it wasprojects were destroying the agency. People like Colby, who were still astonishing. In its paranoia, the FB1 had kept secret files on 1 millionrational, understood that the agency had run off the rails and could not American citizens. Hoover had designated twenty-six thousand individucorrect course internally. Colby later wrote in the New York Times that als to be arrested and jailed in any national emergency, including Martincongressional oversight would “strengthen American intelligence.” Luther King and Norman Mailer. The FBi had conducted hundreds of In November our focus turned to the FBI, and we saw the same pat burglaries at offices of political groups. It had investigated half a milliontern. By now we had divided our work between two subcommittees, one “subversives” without ever obtaining a court order. It had engaged U.S.for the foreign intelligence agencies and one for the domestic agencies, army intelligence agents to infiltrate meetings of various progressive orgaand I was asked to chair the domestic task force. I thought we had a top nizations here at home, including the NAACP, environmental groups,notch investigative staff, and I happily dug into the documents and ran and women’s rights organizations. The CiA, with the cooperation of thethe hearings. We produced evidence that the IRS had shared confiden U.S. Post Office, had illegally opened the mail of hundreds of Americantial taxpayer files with the intelligence agencies, and that the FBI had citizens for more than twenty years, including the personal mail of Johnconducted “black bag” jobs—that is, burglaries—against alleged domestic Steinbeck, Hubert Humphrey, Arthur Burns, and even Nixon himself.subversives all the way back to the 1940s. There was utter contempt for the idea of accountability, and it was all All this was deeply embarrassing—infuriating to people on both sides there, in official agency documents that couldn’t he denied.of the aisle—and it suggested that this cancer had spread beyond the for Worst of all was the persecution of Martin Luther King. FBI memoseign intelligence agencies into domestic operations. William Sullivan, showed that Hoover considered King a “hate leader” and believed thatthe number three officiaL in the FBI, testified thatJ. Edgar Hoover had, in King had conspired with the Communist Party. Hoover hoped to replacehis later years, completely politicized the agency. As a result, all the things him with someone else of Hoover’s choosing. The Bureau had tried to prethat are important to an FBI agent—his professionalism as an investigator vent King from meeting with the pope. It tried to keep him out of the betand as a fact finder—were given second place to the political activities ter hotels in Memphis by writing anonymous letters that asked, “What isHoover wanted to pursue. Sullivan said they had spent more time pursu a Negro doing in a high-class hotel like this?” It even tried to prevent himing Hoover’s enemies than they did catching crooks. from attending the ceremony at which he received the Nobel Peace Prize. Then we made one of our great investigative breakthroughs, a set of It bugged his hotel rooms—he had girlfriends, and the FBI made sure thatdiscoveries that shocked us and broke the domestic inquiry wide-open. I Mrs. King knew about that. And o course agents wrote the notorious 1was concerned about intelligence abuses directed against American citi anonymous letter, mailed with a set of tapes, suggesting that King commitzens, and I was pushing our staff hard. I wanted witnesses and documents, suicide: “King, there is only one thing left for you to do. You know what itnot vague rumors. One day one of our staff investigators, Mike Epstein— is. YOU are done. There is hut one way out for you. You better take it beforea brilliant guy, unbelievably tenacious—came into my office and said, your filthy, fraudulent self is bared to the nation.”“Senator, I have some thing you’d better look at. They’re called COIN After going through these documents we called Andrew Young, whoTELPRO files, and you won’t believe what’s in here.” had been second-in-command at the Southern Christian Leadership The acronym COINTELPRO was Bureau slang for “counterintelli Conference and King’s lieutenant in the early l King and Young 60s. 9 146 47
THE GOOD FIGHT Spies, Security, and the Rule of Law . Young testified that Buffham: In what sense? Whether that would have been a legalknew all along that the Bureau was watching them because, in some of those thing to do?they felt safer when FBi agents were aroundmean counties in the Deep South, the Ku Klux Klan behaved itself when Mondale: Yes. .4 us they learned to identify Buffham: That particular aspect didn’t enter into the discussion.federal agents were in the vicinity. Young told outh sedan and always Mondale: I was asking you if you were concerned about whetherFBI agents. An agent always drove a green Plym that would be legal and proper. and a hat—even in hun wore a black suit with a black tie, white shirt Buftham: We didn’t consider it at the time, no. who they were because they dred-degree weather in Alabama. “We knew told us. always had a whip aerial on their car,” Young My approach to the domestic subcommittee hearings, as in all my also sad and infuriat Testimony of this kind was almost comical, but work, was to prepare intensively_reading documents, interviewing agents, and their stories ing. After Young testified, we started calling FBI experts, debriefing our staff. In these hearings that was crucial because the ver ordered the agency revealed that the agency had gone haywire. Hoo issues went layers deep and the witnesses’ testimony was often baffling. e thirtieth anniversary of the to celebrate several occasions ever year—th We asked FBI director Clarence Kelley to testify on the COINTELpRO of the day he became direc FBI, for example, or the thirtieth anniversary activities. I asked him which activities were inside the law and which cted to bring him presents. tor—and on these days the agents were expe were outside. He answered by saying that sometimes you have to give up ton Post revealing that Hoover One day a story appeared in the Washing some rights to protect others. I said, “That’s fine. Would you tell me which Hoover called in his key was manipulating the agency to get presents. rights you are giving tip?” “Well,” he said, “1 didn’t mean it that way.” This many times have I told yoi people and said, “This is offensive to me. How sloppy thinking prevailed in the agencies_the idea that a higher purpose day he sent word around he that I do not want any gifts?” Then the next allowed these agencies, with the encouragement of the White House, to would like an ice-making machine. disregard the law. people running these Much more serious, it became clear that the I found a second pattern equally troubling. We would ask some low pressure and drawing a line agencies were incapable of resisting political level agent, Who gave approval for these activities? He would say, Well, I to New Hampshire to inter between the legal and the illegal. We traveled don’t know—you’ll have to ask someone higher up. We would go straight he admitted, “Never once view Sullivan, and under cross-examination up the chain of command, and they all said the same thing, none of them the question, ‘Is this course did I hear anybody, including myself, raise [kiiew who had authorized anything. The process was clearly designed for ul? is it legal? is it ethical of action, which we have agreed upon, lawf kg—to hide responsibility and prevent anyone from ever being called to of reasoning because moral?’ We never gave any thought to this line count. were just naturally pragmatic.” In December our work came to a head in a final public hearing. KeHey tioned Benson Buftham, We got a similar response later when 1 ques Was still trying to stonewall us, insisting that the illegal activities had long cy, about one of its surve4. deputy director of the National Security Agen iice come to an end. But we had been told that Elliot Richardson, when lance programs: was Nixon’s attorney general, had ordered the FBI to compile a list of illegal activities over the years. I knew that if we got Richardson’s list, ity? Mondale: Were you concerned about its legal could verify when this activity started and when it ended. So we caJied Buffham: Legality? tomey General Levi to testify, and I asked him to produce that list. Mondale: Whether it was legal. 49 j
Spies, Security, and the Rule of Law THE GOOD FiGHT however, Levi headed off in a differ he went back to the Justice Department and began looking for ways to When the hearing got under way, deserved get them back on course. Levi became indispensable to our reform efforts: argue that the Justice Departmentent direction. He wanted to a kind of He wrote a good set of operating guidelines for the FBI, which banned to do preventive investigations,a kind of legal escape hatch for “preventive action” and other civil liberties abuses, and he helped con apply. I asked him the legal basispenumbral area where the law didn’t obey vince Ford to accept proper Congressional oversight. He did a great deal why his agencies couldn’t simplysuch an argument, and to explain to to bring integrity back to those agencies because he, too, believed that thought was a filibuster, a long answer the law. He went off into what I over. He they should obey the law. You could see he was slipping all avoid addressing the question. scholars By early 1976 we had called eight hundred witnesses, reviewed more one of the most respected legal didn’t have an answer. He was brought than 1 10,000 pages of classified documents, and documented a long impossible position to defend, so I in America, but he had an was our history of abuse. We had issued one public report, on the CIA foreign- document we had requested. This him back to the issue of the assassinations program, and were ak)ut to publish a powerful second exchange: volume, Intelligence Activities and the Rights of Americans, which detailed on head of the Justice Department, the findings of our domestic task force. The staff was finishing work Mondale: I am asking you, as the several more committee reports, which would include more than eighty if we could get those reports. recommendations to reform the intelligence community—some of which can or not, but we will certainly Levi: Well, 1 do not know if you were quite hard on Congress itself. Loch Johnson, a University of Geor consider it. a gia political scientist who served on the committee staff, later surnin Mondale: Why not 1 that rized that aspect of our work: “ln a political system based on checks and is one thing to give reports of Levi: Because I think that it balances, Congress had provided too few checks and permitted a shift ttee of this kind and another kind in confidence to a commi in balance from the overseers to the overzealous. The supervisors in the thing to make them public. executive branch had failed to perform any better.” us. Why can’t you? Mondale: The CIA gave theirs to Now our challenge was to write a law that would prevent these abuses I do not care to be. I do not wish Levi: Well, I am not in the CIA. from happening again. At first we tried to use the common-law method. to be. good answer? We took actual cases from the files and the testimony and tried to dis Mondale: Do you consider that a as good as the question. cern which activities must be off-limits, which were truly necessary, and Levi: I—yes, I consider the answer which could have been conducted legaLly. We forced ourselves, through I think that kind of arrogance Mondale, to Senator Church: Well, the discipline of dealing with facts and events, to come up with a series of the executive and the legisla is why we have trouble between Chairman. iideLines, which we thought might then he enacted into a law. We spent tive branch. Thank you, Mr. ys—twelve-hour days and more—for a couple of weeks. But the issues and ge. I sounded like a smart aleck when all I were simply too complex. Any guideline we wrote was too detailed I later regretted it testy exchan rule of law. Bet. o long, and the agencies felt it would just tie them in knots. underscore the importance of the 1 was trying to do was to In the end we kept running into the same two conundrums: We I don’t want that colloquy to misrepresent what I think of Levi. He w a person. 1 think he realized that the age [ Douldn’t write rules broad enough to anticipate every contingency in a first-rate scholar and a good defended, anJ. tional security crisis, and we couldn’t see how to impose public over- a direction that could not be he supervised had gone off in 151 - ‘ v,
THE GOOD FIGHT Spies, Security, and the Rule of Law prevent anotherJ. Edgar Hoover from emerging and created a permanentsight on agencies that must operate in secret. Our answer was a piece of panel, the Senate Intelligence Committee, with authority over the fedlegislation that became the Foreign Intelligence Surveillance Act, or eral intelligence agencies.FISA. Since we couldn’t write guidelines to cover every possibility, we I think it was a historic achievement, not just fine investigative workcreated a new, separate court with the authority to examine each case as e, but we would by our staff, and not just resourceful work in drafting the legislation, hutit came up. We wouldn’t tie the agencies’ hands in advanc proof that our political system is strong enough and wise enough to conrequire that they make their case before a court of law. That was some front a threat to our constitutional framework, make corrections, andcreative work, but I think it was a good answer, and by the spring of 1976 leave the democracy stronger. Americans understood that leaders of theirwe had draft Legislation. government had abused the powers of office, and then they saw that we By the time the FISA legislation started advancing in both houses of . had transcended partisanship to investigate those abuses and had rallied Congress, I was in the White House as part of the Carter administration public support for dramatic and far-reaching changes to the way our intel Thus I was on the other side of the table, in the administration and seek ing pragmatic solutions with the people who ran the FBI and the CIA. But that was fortunate, 1 think, because I could recommend to Preside Carter and the attorney generaL ways to make FISA work; I could make nt ligence agencies work. Loch Johnson would later write: The intelligence investigation of 1975 must surely rank as I a one of the most significant inquiries conducted by the United the argument that the FISA court was good for us. When we got into e. States Senate. It represented the first serious examination of the quandary, I was able to bring in Fritz Schwarz, then in private practic “dark side” of government since the establishment of the modern or committee staff from the Hill, to give us their reading on the law and intelligence bureaucracy in 1947; it unearthed more infi)rmation congressional intent. g (much of it highly classified) from the executive branch than any A measure of the difficulty of this issue is that even people workin previous congressional inquiry had done; it set in mot ion forces for the same administration often had differing points of view. Carter t that would revolutionize the approach to intelligence policy had established a special White House coordination committee consis on Capitol Hill and, consequently, within the intelligence com ing of representatives from the CIA, the NSA, the Departments of State, w munity. Defense, and Justice, and the National Security Council, and often I a the main advocate for tough court oversight of the surveillance. On The new system changed behavior at our intelligence agencies. When few points, such as whether the law should protect American citizem swore in William Webster as FBI director in 1978, I gave him a copy when they were overseas, only I and perhaps Griffin Bell would be arraycd our committee report and told him to read it before he did anything against Zbigniew Brzezinski, Stansfield Turner, the NSA, and others. ( omise. Y, ‘else. I think it had an impact on his tenure. Stansfield Turner, the CIA a few of those topics Carter himself had to call the final compr to director under President Carter, came to feel the same way; he wrote that on the whole, we helped Congress write a good law and it proved bel ong congressional oversight “ensures against our becoming separated exceptional example of sophisticated, legislative-executive cooperari to bring about reform. min the legal and ethical standards of our society.” George Tenet later 1 me the same thing. When he ran the CIA, he said, his agents liked After three years of investigations, hearings and debate, the FISA - RS FISA system because they knew the authority of the courts stood passed the Senate in 1978 by a vote of 95 to 1. In addition to the law, Congress placed a ten-year term limit on the director of the FBI md them. It professional ized the agency again. That law worked well 152 153
THE GOOD FIGHT Spies, Security, and the Rule of Lawthrough Carter, through Reagan, through Bush 1, through Clinton. They the law, we have started down a long, slippery slope which culminates inall worked with it, and I began to think: Now, at least for our generation, a Watergate.”this issue is settled. What I found most galling after 9/11 is that the Bush administration Then came the Bush-Cheney administration and the disaster of their could have asked Congress to update the intelligence laws and makewar on terror. They took a horrible set of events—the attacks of 9/11— them current with developments in technology and the terrorist threat.and used them to create a climate of fear that would justify their drive But they had no interest in making the law work or in cooperating withto reinterpret the Constitution and arrogate great power to themselves. Congress. They were trying to build their theory of the “unitary execuThey threw out a constitutional and legal framework that they were tive,” a commander- in-chief privilege that would allow them to set policypledged to protect and that had survived through four administrations without answering to anyone hut themselves. It was different, in tone andand more than two decades. They deliberately defied the FISA law and depth and breadth, from anything this country had seen before.undertook illegal surveillance without seeking court approval. They com A president who is accountable to no one—not the Congress or themissioned legal memos justifying torture, then kept those memos secret courts—is a president who will he tempted to rewrite the law for his ownfrom the very authorities with the most expertise. They destroyed tapes convenience, to decide who is an enemy of the state, to violate constituthat documented their own torture practices—in plain contempt of the tional protections of our liberties. A system of government cannot oper9/11 Commission, which had legal authority to review evidence. At the ate this way. That defines the imperial presidency that gave our founderscore of all these activities was the same dangerous premise we investi nightmares.gated in the Church Committee: that the president can, unilaterally and There will always be threats to our national security, and there willin secret, do as he chooses despite the law. always be someone who argues that shortcuts are necessary to keep us safe. The defenders of these activities said our nation faced a great threat, But that is no argument to subvert the law. If you want to adapt to newthat they had a constitutional duty to protect the American people. But F circumstances or new threats, then you amend the law. There is no cvino one denies this. We argued that point, and settled it, during our Senate dence that Bush and Cheney accomplished anything by stepping outsidehearings more than thirty years ago. The question we considered in the Church Committee is not whether [ the law that they couldn’t have accomplished within its boundaries. A t of evidence suggests that what they’ve done has weakened America.America needs strong intelligence agencies and secret surveillance activ When you violate the Geneva Accords, when you operate Abu Ghraihities, which we do, but whether the president, and the president alor, -d Guantanamo, when you use extraordinary rendition to torture peoplegets to decide what is legal and what is not, what violates the Constitu who later turn out to he innocent, you lose respect in the world. You crction and what does not. anger against the United States and you spawn violence and empower In creating the congressional intelligence committees and enactiz rrorists.FISA, Congress voted, with large bipartisan majorities, that the answer When you abuse the tools of our military and intelligence agencies,no—the president cannot arrogate these powers to the executive brand u subvert democracy itself. Americans wonder why they should supor decide, in isolation, to reinterpret standing law. As Frank Church to_ prt a foreign policy whose rationale is kept secret from them, or parthe Washington Post in 1976, “The lesson to be learned is not just that ilIe ipate fully in their democracy if the tools of their own government cangal actions were justified. Rather it is that once government officials stag turned against them when they dissent. The quality of your decisionsbelieving that they have the power and the right to act secretly outs - eriorates because you are afraid to test them in open argument. 1c4
THE GOOD FIGHT 8 A reassuring cycle of self-correction runs through American history,of citizens recognizing a problem in their midst and demanding that theirleaders address it. But we can’t trust our civil liberties to some abstracttheory of history. We need to take care of them every day. The founders Meeting a New Democratleft us a great gift, an elegant but durable democracy that gives expressionto the wishes o the majority while, by and large, protecting the rights Athe minority. Events will test that structure from time to time—a civilwar, a terrorist attack—and we cannot simply assume that it will survivethe challenge. The lesson of American history is that, in threatening times, fear can -overtake our better judgment. It happened with the Alien and SeditionActs at the end of the eighteenth century, with the Palmer Raids a’-’World War I, with the internment of Japanese Americans in the l94 J N 1973 AND 1974, having heard the call that many senators hear,with J. Edgar Hoover’s abuse of power in the 1960s. We have strayed I I took a test run at a campaign for the presidency. By that time 1 hadour values time and again in our history, always in times of fear, and w worked on a number of national issues in the Senate, and I wantedwere almost always ashamed of ourselves when we recovered our senses.., to see if I could have a national impact with voters. That turned out to be a tough period. I was on the road every weekend for more than a year, raising money and putting myself before audiences in states where I was not well-known. It was time away from my family, from Minnesota, and from my work in the Senate. After more than a year of constant travel, constant fund-raising, and constant speeches, I had pulled about even with “None of the Above” in national opinion surveys, and I dropped that bid—to widespread applause. On the day I announced I was ending that experiment, I felt a huge iense of relief. After that 1 had no intention of going back into the tional arena. 1 felt I had found my sweet spot in the Senate. Then one day in May of 1976, my chief of staff, Dick Moe, sug sted that we have coffee with Humphrey, who was back in the Senate resenting Minnesota. Governor Jimmy Carter of Georgia had come it of nowhere with a superb campaign for the Democratic presidential mtnination, and the newspapers were starting to speculate about pos le running mates. My name was on all the lists, along with those of Muskie, John Glenn, and several other Democratic senators. When political writers began calling me, I wasn’t too excited because 1 zc6 .4