Documents reveal similar debate over U.S. wiretaps 30 years ago
Sunday, February 5, 2006
Hearings begin Monday over President Bush's authority to approve NSA wiretaps without approval.
WASHINGTON -- The White House was eager to protect its ability to gather foreign intelligence. Congress was eager to rein in executive power.
What sounds like a new debate over the president's ability to eavesdrop without warrants occurred 30 years ago.
Documents from the Ford administration reflect a remarkably similar dispute between the White House and Congress a generation before President Bush acknowledged that he authorized wiretaps without warrants on some Americans in terrorism investigations.
'Deja vu all over again'
"Yogi Berra was right: It's deja vu all over again," said Tom Blanton, executive director for the National Security Archive, a private group at George Washington University that compiles collections of sensitive government documents. "It's the same debate."
Senate Judiciary Committee hearings begin Monday on Bush's authority to approve such wiretaps by the ultra-secretive National Security Agency without a judge's approval. A focus of the hearings is to determine whether the administration's eavesdropping program violated the Foreign Intelligence Surveillance Act, the 1978 law with origins during Ford's presidency.
"We strongly believe it is unwise for the president to concede any lack of constitutional power to authorize electronic surveillance for foreign intelligence purposes," Robert Ingersoll, then-deputy secretary of state, wrote in a 1976 memorandum to President Ford about the proposed bill on electronic surveillance.
The document was among historic records obtained by The Associated Press.
George H.W. Bush, then director of the CIA, wanted to ensure "no unnecessary diminution of collection of important foreign intelligence" occurred under the proposal to require judges to approve terror wiretaps, according to a March 1976 memorandum he wrote to the Justice Department.
In another document, Jack Marsh, a White House adviser, outlined options for Ford over the wiretap legislation. Marsh alerted Ford to objections by then-CIA director Bush, Defense Secretary Donald H. Rumsfeld, Secretary of State Henry Kissinger and White House national security adviser Brent Scowcroft.
Some experts weren't surprised the cast of characters in this national debate remained largely unchanged over 30 years.
"People don't change their stripes," said Kenneth C. Bass, a former senior Justice Department lawyer who oversaw such wiretap requests during the Carter administration.
Lisa Graves, senior counsel for legislative strategy at the American Civil Liberties Union, said comparing the Ford-era debate to the current controversy is "misleading because no matter what Mr. Cheney or Mr. Rumsfeld may have argued back in 1976, the fact is they lost. When Congress passed the Foreign Intelligence Surveillance Act in 1978, Congress decisively resolved this debate.
"Unlike the current administration, the Ford administration never claimed the right to violate a law requiring judicial oversight of wiretaps in foreign intelligence investigations if Congress were to pass such a law."
The documents include one startling similarity to Washington's current atmosphere over disclosures of classified information by the media.
Notes from a 1975 meeting between then-White House chief of staff Dick Cheney, Attorney General Edward Levi and others cite the "problem" of a New York Times article by Seymour Hersh about U.S. submarines spying in Soviet waters. Participants considered a formal FBI investigation of Hersh and the Times and searching Hersh's apartment "to go after [his] papers," the document said.
"I was surprised," Hersh said in an interview Friday. "I was surprised that they didn't know I had a house and a mortgage."
One option outlined at the 1975 meeting was to "ignore the Hersh story and hope it doesn't happen again." Participants worried "will we get hit with violating the First Amendment to the Constitution?"
CIA director Porter Goss told lawmakers last week that recent disclosures about sensitive programs were severely damaging, and he urged prosecutors to impanel a grand jury to determine "who is leaking this information." The National Security Agency earlier asked the Justice Department to open a formal leaks investigation over press reports of its terrorism wiretaps.