Please Meet Jim Marcinkowski

National Security:  The Attack on the Constitution
And the Use and Abuse of Secrecy

Washtenaw County, Michigan
February 8, 2006

It is my pleasure to be able to share some of my thoughts with you this evening on matters of national security and the Constitution.  I come here not as a Democrat, not as a former Republican, but as an American who is deeply troubled by the direction we are headed as a nation.

Over the past 30 years, I have served this country in a variety of positions from the FBI to the CIA, and as a lawyer and a prosecutor.  I would like to share with you some of the perspectives those experiences have provided me.

“To Protect and Defend”

Almost 32 years ago, March 4, 1974, was the first time that I raised my right hand and swore an oath to “protect and defend” the Constitution of the United States.  Since the time of that first oath at the Federal Bureau of Investigation, I repeated that pledge when I entered the United States Navy, the Central Intelligence Agency and the Oakland County Prosecutor’s Office.  “To protect and defend.” This same oath is used to swear in public officials from small towns and cities to our president and members of the Supreme Court.  In fact it is so common that I think for a lot of people, the words have lost their meaning.  Too often, from those same small towns to the White House itself, people do not know what it means, do not think it applies to them, or more importantly, fail to recognize that, at times, “protect and defend” actually requires action or restraint.  What “protect and defend” really means is that the law will be followed, the Constitution respected, and any doubt resolved in favor of either, or both.  And that is exactly what the Republicans and this White House are NOT doing!

FISA and Wiretapping

As a lawyer and prosecutor over the years, I obtained numerous search warrants and arrest warrants for and against those believed, based on probable cause, to have committed a crime.  There is a very basic principle involved in obtaining any warrant: an allegation based on reasonable belief or probable cause that someone has broken the law.  That belief or probable cause is presented by a prosecutor to a judge who either accepts or rejects that allegation.  In this way, the power of one branch of our government, the executive, is reviewed or “checked” by the judicial branch.  This is probably one of the most fundamental concepts of our government.  The Foreign Intelligence Surveillance Act (FISA) incorporates this basic constitutional design.    

The current issue involving wiretapping and eavesdropping by the National Security Agency (NSA) under the FISA really has nothing to do with criminals or terrorists.   Rather, it is about the constitutional requirement of maintaining our system of checks and balances: whether the use of wiretaps should be subject to judicial review.

As a general rule, our judicial system and its records are open to public review.  There are instances however, when dealing with national security and legitimate national secrets, when public review is not practical.  FISA was designed to address the concerns for secrecy and still maintain the system of checks and balances on fundamental rights.  It balances the need for secrecy with constitutional rights.  FISA therefore created a secret federal court and relaxed the manner, as well as the timing of judicial review.  The proceedings of the court are secret and depending upon the particular case, the warrant can be reviewed after the eavesdropping has occurred – after the fact.

Yet, in another unprecedented act, the Bush administration, with the tacit approval of a silent Republican-controlled Congress, has deemed it unnecessary to seek court review and approval of the activities of the NSA.

The Administration’s wholesale by-passing of court review under the guise of “national security” is an extremely bad precedent.  If after-the-fact judicial review of eavesdropping operations can be legally accomplished in a secret court, why should such a review requirement be totally ignored by this President?  Is it because the government does not want anyone to know exactly who they are listening in on?  Is it only suspected terrorists who are being targeted?  If the Bush administration continues to have its way, we, and the congressionally authorized secret FISA court, will never know.

The Use and Abuse of Secrecy

The Administration’s ignoring of the law in the case of wiretapping is but one part of what I see as an emerging pattern or practice of illegal and unethical conduct.

When my CIA classmate, Valerie Wilson’s cover was exposed by the White House in 2003, I as well as other members of my class appeared in October of that year on Nightline to explain the consequences of that unprecedented act.  It was from that program that the CIA leak case became a national story.  Behind the scenes, there is an interesting, as well as informative story.

After the Nightline program, my fellow classmates and I wrote a letter to the Senate Intelligence Committee requesting a hearing to explain our side of the story.  That letter was ignored until we were contacted by Senator Tom Daschle’s staff offering a Democratic Senate hearing in the Capital.  The Senate Democratic offer was accepted and a hearing was set for a Friday morning in Washington.  Almost immediately after the Democratic hearing became public, we were notified by the Senate Intelligence Committee staff that we would be granted a hearing before a closed session of the Senate Intelligence Committee.  That hearing was to take place the afternoon of the day before the Friday Senate hearing.  We accepted that as well.

I flew to Washington and appeared before the Senate Intelligence Committee on Thursday.  The thrust of my delivery to the Committee was that we, the classmates of Valerie Wilson, were betrayed.  We were betrayed because whether we were inside or outside the Agency, we kept her identity a secret for more than 18 years.  There was nothing “secret” about my remarks.

Following my delivery to the Committee on that Thursday afternoon, I left the Senate offices and went to a nearby park.  While sitting on a park bench I received a call from Senator Daschle’s office with a message: Senate Republican Pat Roberts, Chairman of the Intelligence Committee, had declared all of my testimony before the Committee “secret”.  I was then asked if I could still testify the next day before the Senate Democrats or whether I would have to first check for approval with the CIA legal affairs office.  I was flabbergasted and didn’t know what to say.  I had to think about it.  I had to call back.

As I sat on that park bench there were many thoughts running through my mind.  I had signed a secrecy agreement upon entering the CIA.  If I testified the next day, telling the same story I told the Intelligence Committee, would I be in violation of that agreement?  Could the Senate Intelligence Chairman simply declare what I said secret?  Would I be arrested or subject to criminal prosecution?  Could the CIA even “clear” my remarks within a few hours?  Would the public hearing be cancelled and the public not learn of this important issue?

As I sat there, by myself, it was kind of lonely debating the issues in my mind.  The first thing I did (and you should keep this in mind at all times! Ha!), I called a lawyer.  While this very good friend of mine is probably the brightest, most commonsensical lawyer I know, he knew absolutely nothing about national security law.  But we talked, and he helped.  I knew there was nothing secret about my testimony, but that didn’t ease my mind as what the Republicans might try to do, based on what they had just done!  The more we talked, the angrier I became.  I knew what I had to do.

After about 20 minutes of talking and thinking about it, I called Senator Daschle’s staffer and told her to tell the Committee Chairman “to go to hell”.

The CIA and Central America  

As you may know, I was in Central America with the CIA during the Nicaraguan conflict.  No matter what you think of that conflict, I would ask that you compare that conflict with our current fight against terrorism.  We did not invade Nicaragua.  We did not run any secret prisons.  We did not assassinate anyone.  We did not torture anyone.  We did not occupy the country.  We did not rebuild the country.   And today, Nicaragua is a democracy and the Former Comandante, Daniel Ortega, is running for president.  Look how far we have come.

The U.S. Navy and the Cold War

I served in the Navy during the “Cold War”.   The Cold War ended in 1995 with the collapse of the chief adversary, the Soviet Union.  For 50 years after the end of WW2 this country endured hundreds of thousands of lives lost and endured thousands and thousands of casualties, we spent trillions of dollars and devoted the entire national enterprise to combating the Soviet Union and the spread of “communism” world wide.  This country fought directly in Korea, Cuba, Vietnam, Laos, Cambodia, Grenada, and we sponsored our side in proxy wars in Angola, the Congo, Afghanistan and anywhere else that “communism” provided opposition.  This country sponsored the Voice of America, Radio Free Europe and innumerable other enterprises aimed at countering the spread of “communism.”  As a country we endured a generation of children terrified by “duck and cover” drills in preparation for nuclear annihilation.  We endured a Cuban missile crisis and a Bay-of-Pigs.  We endured the gut wrenching schism created by the Vietnam War and the horrifying effects that that war created in Southeast Asia and in southeast Detroit, Chicago, Washington DC, San Francisco.  We endured all of these things because the national sense was that the Soviet system was fatally flawed and anathematic to everything that the United States stood for: personal freedom, freedom of expression, freedom of speech, freedom of assembly, life liberty and the pursuit of happiness.
 
We fought the Soviets and I fought the Soviets because they had a fatally flawed, intolerable system of government where (and think about this):
 
The government was always right and never apologized;

Any dissent was suppressed, ridiculed, banned or worse;

Secret prisons were denied and never acknowledged or spoken about;

The torture of captives (in Lubyanka) was condoned;

State incarceration was not subject to the checks and balances of a legal system;

Economic plans, like for oil, were established/determined in closed sessions between politicos, commissars and production managers, far outside public view, and where government claimed privilege in so doing;

Wages were set at the lowest common denominator, no matter what Bloc country you were in;

Government agents had access to your medical records, your library records, your telephone, and your e-mail.

A place where judicial power and judicial review were proclaimed concepts, but simply ignored in application;  

Where criminal records of young adults were closed to all but the military;

Where a Constitution was a mere facade and ignored by state actors.

Any dissent, debate and protest were deemed unpatriotic;

The public media was bought, paid for, and provided by the state;

The military clandestinely and shamelessly influenced the national media and public opinion;

A place where wrong was declared right;

Where tapping a phone was like tapping a pencil;

Where lying was considered a patriotic skill;

The extraction of natural resources was paramount to any concern for the environment and the impact on the health of its people;

Where the use of “state secrets,” (those things embarrassing to the government) were confused with legitimate issues of “national security”;

A place where “secrecy” and “national security” were used to control debate;

Where legitimate secrecy, was subject to political use and abuse;

Where “legislators” were mere mouthpieces for and rubberstamps of whoever was in power;

Where you lived and died with the permission of the government;

A place where foreign policy was more important than domestic concerns;

Where fear was used as a political weapon and an acceptable means of control;

Where the best medical care was reserved for the influential;

Where wealth was concentrated in the top 5%;

A place where there was no middle class – just a small economic and political elite, and the working poor.

 
The Soviet Union- A people’s paradise where the people were in control of their state – but we here in America knew better and we fought the Soviet system with everything we had because we could not endure a Soviet style system here in the United States.

Since 1995 the Republican Party and its friends in the American corporate structures that so vigorously contribute to and support them have—in the space of a decade—created in this country more than the beginnings of a system that this country spent 50 years trying to dismantle.

While it remains to be seen how much we, the working class, Democrats, Republicans, Independents, Greens, Libertarians, Liberals or Conservatives (or just plain confused) can do to unwind this damage, it is an absolute certainty what the Republican Party has done, and is doing.  I shudder to think where the Republican Party wants this country to be, but I pray we do not have to find out.

I believe that these are dangerous times for us as a nation and as a people.  As we move forward, as one Country, as Americans united in purpose and resolve, I ask that you consider what President Roosevelt once said, that “We have nothing to fear, but fear itself.”  But that’s all we get from this White House and the Republicans.  We cannot allow fear to control the political debate, to demean those who question or to control the future of this country.  It seems it’s always easier to scare than it is to lead.

Ladies and gentlemen, we can do better.  We must do better, for there is no less at stake than the very principles upon which this country was founded.

Jim Marcinkowski