Lessons not learned from the Bay of Pigs

In 1961, when John F. Kennedy took office, he inherited a scheme from his predecessor, Dwight Eisenhower, to invade Cuba with a small band of exiles and overthrow Fidel Castro. The plot, devised by the C.I.A. and carried out in April of that year, was a disaster: the invading forces, shepherded by C.I.A. operatives, were killed or captured, and Castro’s stature increased.

The failed plot is richly documented in a 1979 book, “Bay of Pigs: The Untold Story,” written by Senator Wyden’s father, Peter. At the time of its release, the book, which won an Overseas Press Club award, was the most comprehensive account of the Bay of Pigs fiasco. (During a six-hour interview with Peter Wyden, Castro marvelled that the author “knows more about it than we do.”) One recent morning, when Ron Wyden and I were sitting in his office discussing the N.S.A., he leaped out of his chair and walked across the room to a small bookshelf. “I want to show you something,” he said, and handed me a tattered copy of his father’s book. It describes how the C.I.A.’s arrogance and obsessive secrecy, combined with Kennedy’s naïveté, led a young President to embrace a wildly flawed policy, resulting in an incident that the author likens to “Waterloo staged by the Marx Brothers.” In Ron Wyden’s view, the book explains a great deal about the modern intelligence community and his approach to its oversight.

At the White House, Olsen and Powell told Obama of the problems. “I want my lawyers to look into this,” Obama said. He pointed at Holder and Craig. Olsen believed that the N.S.A. simply had difficulty translating the court’s legal language into technical procedures; it could all be fixed. Wyden believed that the court never should have allowed the N.S.A. to collect the data in the first place. In his view, the court’s unusually harsh opinion gave Obama an opportunity to terminate the program.

“That was a very, very significant moment in the debate,” Wyden told me. “Everybody who had been raising questions had been told, ‘The fisa court’s on top of this! Everything that’s being done, the fisa court has given the O.K. to!’ And then we learned that the N.S.A. was routinely violating the court orders that authorized bulk collection. In early 2009, it was clear that the N.S.A.’s claims about bulk-collection programs and how carefully those programs were managed simply were not accurate.”

On February 17th, about two weeks after the White House briefing, Olsen, in a secret court filing, made the new Administration’s first official statement about Bush’s phone-metadata program: “The government respectfully submits that the Court should not rescind or modify the authority.” He cited a sworn statement from Keith Alexander, who had replaced Hayden as the director of the N.S.A. in 2005, and who insisted that the program was essential. “Using contact chaining,” Olsen wrote, “N.S.A. may be able to discover previously unknown telephone identifiers used by a known terrorist operative . . . to identify hubs or common contacts between targets of interest who were previously thought to be unconnected, and potentially to discover individuals willing to become US Government assets.”

Judge Walton replied that he was still troubled by the N.S.A.’s “material misrepresentations” to the court, and that Alexander’s explanation for how they happened “strains credulity.” He noted that the fisa court’s orders “have been so frequently and systemically violated that it can fairly be said that” the N.S.A. program “has never functioned effectively” and that “thousands of violations” occurred. The judge placed new restrictions on the program and ordered the agency to conduct a full audit, but he agreed to keep it running. Olsen, and Obama, had saved Bush’s surveillance program.

It was the first in a series of decisions by Obama to institutionalize some of the most controversial national-security policies of the Bush Administration. Faced with a long list of policies to roll back—torture, the wars in Afghanistan and Iraq, the use of the prison at Guantánamo Bay to hold suspected terrorists—reining in the N.S.A.’s surveillance programs might have seemed like a low priority. As core members of Al Qaeda were killed, the danger shifted to terrorists who were less organized and more difficult to detect, making the use of the N.S.A.’s powerful surveillance tools even more seductive. “That’s why the N.S.A. tools remain crucial,” Olsen told me. “Because the threat is evolving and becoming more diverse.”
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The N.S.A.’s assurances that the programs were necessary seemed to have been taken at face value. The new President viewed the compliance problems as a narrow issue of law; it was the sole responsibility of the fisa court, not the White House, to oversee the programs. “Far too often, the position that policy makers have taken has been that if the intelligence agencies want to do it then the only big question is ‘Is it legal?’ ” Wyden said. “And if government lawyers or the fisa court secretly decides that the answer is yes, then the intelligence agencies are allowed to go ahead and do it. And there never seems to be a policy debate about whether the intelligence agencies should be allowed to do literally anything they can get the fisa court to secretly agree to.”

Any doubts about the new Administration’s position were removed when Obama turned down a second chance to stop the N.S.A. from collecting domestic phone records. The business-records provision of the Patriot Act was up for renewal, and Congress wanted to know the Administration’s position.

It was one thing to have the Justice Department defend the program in court. But now Obama had to decide whether he would publicly embrace a section of the Patriot Act that he had criticized in his most famous speech and that he had tried to rewrite as a senator. He would have to do so knowing that the main government program authorized by the business-records provision was beset by problems. On September 14th, Obama publicly revealed that he wanted the provision renewed without any changes. “At the time of the U.S.A. Patriot Act, there was concern that the F.B.I. would exploit the broad scope of the business-records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries,” a Justice Department official wrote in a letter to Congress, alluding to one of Obama’s former concerns. “This simply has not occurred.” The letter, which was unclassified, did not explain the details of the metadata program or the spiralling compliance issues uncovered by the court.

Wyden’s early hope, that Obama represented a new approach to surveillance law, had been misguided. “I realized I had a lot more to do to show the White House that this constant deferring to the leadership of the intelligence agencies on fundamental policy issues was not going to get the job done,” he said.

Ryan Lizza has a long review of the dragnet programs. As far as the phone dragnet, it’s a great overview. It’s weaker on NSA’s content collection (in a piece focusing on Ron Wyden, it doesn’t mention back door searches) and far weaker on the Internet dragnet, the technical and legal issues surrounding which he seems to misunderstand on several levels. It probably oversells Wyden’s role in bringing pressure on the programs and treats Matt Olsen’s claims about his own role uncritically (that may arise out of Lizza’s incomplete understanding of where the dragnet has gone). Nevertheless, it is well worth a read.