CIA Director Michael Hayden has been getting loads of good press for releasing the so-called "family jewels"—a massive stash of internal documents chronicling the agency's dirty laundry compiled more than 30 years ago. But the issues aren't all ancient history: some of the documents have eerie parallels to more current controversies about which the CIA director and his colleagues in the U.S. intelligence community have been less forthcoming.
One of the more intriguing items is an internal memo recording how the agency's "Division D"—its supersecret eavesdropping branch—had begun intercepting telephone calls between suspected Latin American drug traffickers and individuals living in New York in late 1972. A May 7, 1973, memo, entitled “Potentially Embarrassing Activities Conducted by Division D,” records that officials in the division had questions about "the legality of this activity."
The reason for the concern: even though the phone calls involved at least one party outside the United States, the agency was still eavesdropping on the conversations of citizens inside the country without a judicial warrant.
"This is totally relevant to what is going on today," said Thomas Blanton, director of the National Security Archive, a nonprofit group that filed the original Freedom of Information Act request for the family jewels file 13 years ago.
Blanton notes that the legal issues of concern to the Division D eavesdroppers are the same as those involved in the intense, ongoing debate about the legality of President Bush's warrantless wiretapping program. The still-classified operation, in which the National Security Agency intercepted phone conversations between suspected foreign terrorists and individuals within the United States without judicial warrants, was first conducted under Hayden's leadership. (Just today, the Senate Judiciary Committee—frustrated by the Bush administration's refusal to turn over key material about the program — subpoenaed documents about it, setting up a potential court clash.)
Just as striking, according to the new family jewel documents, is that then-CIA general counsel Lawrence Houston actually drew a bright line on the issue back in 1973: citing a federal law that makes it a crime to intercept phone conversations without a warrant—and a statutory ban on the agency's own involvement in any "police or law-enforcement activities"—Houston concluded that the secret wiretapping of narcotics traffickers was out of bounds and should be stopped, which it was just a few months after it began.
The analogies only go so far, of course. Even in his memo, Houston concluded that the president still had the "constitutional power" to take such measures "as he deems necessary to protect against attack," and "to obtain foreign intelligence information deemed essential to the security of the United States." And even though the relevant laws have been altered (Congress passed the Foreign Intelligence Surveillance Act to govern wiretapping by the intelligence community in 1978), President Bush has invoked those very same constitutional powers to justify the secret domestic wiretapping he authorized in the days after the 9/11 terror attacks.
Still, the family jewels documents and related material offer other revealing parallels to more current controversies involving the intelligence community. After 9/11, U.S. intelligence community officials expressed concerns that their officers could one day be criminally prosecuted for using "enhanced" interrogation procedures like waterboarding against captured terror suspects. Back in the 1970s, officials also worried that they might one day face legal consequences stemming from some of the abuses contained in the family jewels.
Consider a Feb. 20, 1975, memo recording a meeting among senior Ford White House officials called to discuss how to deal with upcoming congressional investigations into the parade of embarrassments—bizarre assassination plots, domestic spying and experiments with mind-altering drugs—contained in the family jewels.
"The fact of these investigations could be as damaging to the intelligence community as [Sen. Joseph] McCarthy was to the Foreign Service," said then-secretary of State Henry Kissinger (who ironically was the current President Bush's first choice to head the September 11 Commission). "The nature of covert operations will have a curious aspect to the average mind and out of perspective it could look inexplicable. … If people think they will be indicted 10 years later for what they do. That is my overwhelming concern."
That could also be why Hayden, while collecting kudos for releasing the decades-old documents, has taken a hard line about publicy releasing material about potential embarrassments of more recent vintage. Even beyond the current fight over warrantless wiretapping (which has actually been an NSA rather than CIA activity), the agency has refused to make public virtually any detail about its secret prisons program, its use of "extraordinary rendition" to send terror suspects to countries that have been accused of practicing torture and other counterterrorism measures that have provoked controversy.
The CIA director has even refused to make public the long-finished inspector general's report on the agency's failures in the run-up to September 11, despite strong criticism from Congress and 9/11 family members. Hayden's refusal to release the document prompted passage of legislation that would force disclosure of an executive summary of the report. (A Senate-passed amendment requiring disclosure of the document was accepted by House conferees, but the bill it is attached to—which would implement various recommendations of the September 11 commission—faces a presidential veto.) The family jewels are "historical and I'm glad they're out," said Sen. Ron Wyden, a Democrat from Oregon, who along with GOP Sen. Kit Bond has pushed for the release of the 9/11 report. "But I think the American public needs to have this information [the 9/11 report] that is very relevant to decisions that are being made today."
Asked for comment, CIA spokesman Paul Gimigliano said: "As our latest document release shows, the agency is not afraid to declassify unflattering material. The key challenge for us is to protect information which, if made public, could damage our ability to protect Americans." And, in releasing the material this week, Hayden himself issued a statement that sought to draw a stark line between the CIA described in the family jewels and the CIA of today. "The documents truly do provide a glimpse of a very different era and a very different agency," he said. That may be. But until the CIA sheds more light on what it has been up to more recently, the agency may still be facing questions about how much it has truly changed.