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Electronic Surveillance: From the Cold War to Al-Qaeda
 

National Security Archive Update, February 4, 2006

Wiretap Debate Dj Vu

www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/index.htm

Documents show Ford White House embraced wiretap law
instead of claiming “inherent” Presidential authority in 1976
despite objections from Rumsfeld, G.H.W. Bush, Kissinger

Web posting includes Justice report on criminal liability for 1970s warrantless wiretapping, 1990s directives on US surveillance

For more information:
Thomas Blanton – 202/994-7068

www.nsarchive.org

Washington D.C., February 4, 2006 – Despite objections from then-Secretary of Defense Donald Rumsfeld and then-CIA director George H. W. Bush, President Gerald Ford came down on the side of a proposed federal law to govern wiretapping in 1976 instead of relying on the “inherent” authority of the President because the “pros” outweighed the “cons,” according to internal White House documents obtained through the Freedom of Information Act and posted on the Web today by the National Security Archive at George Washington University.

White House counsel Philip Buchen described a Situation Room meeting on March 12, 1976 with Rumsfeld, Secretary of State Henry Kissinger, Bush, national security adviser Brent Scowcroft, and attorney general Edward Levi (notably absent was White House chief of staff Richard Cheney) in which Buchen’s and Levi’s outline of the advantages of a wiretapping law reduced the “adamant opposition” to neutrality, allowing Levi to testify before Congress in favor of a wiretapping statute on March 29, 1976.

Buchen’s talking points said the proposed law (ultimately enacted as the Foreign Intelligence Surveillance Act of 1978, or FISA) “avoids likelihood that … courts will eventually decide a warrant is required,” “eliminates question of validity of evidence obtained,” “protects cooperating communications carriers,” and would not “materially inhibit surveillance of these kinds of targets.”

On the “cons” side of his talking points, Buchen described exactly the arguments against such a law that the Bush administration has now adopted as the basis for its warrantless wiretapping: “requires resort to the judiciary for exercise of an inherent Executive power” and “could result in troublesome delays or even a denial of authority in particular cases.”

“Yogi Berra was right, the current wiretapping debate is dj vu all over again, except that President Bush has come down on the con side against the law,” remarked Thomas Blanton, director of the National Security Archive.

Today’s posting also includes the TOP SECRET Justice Department reports in June 1976 and March 1977 on the potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973). Justice released these reports to author James Bamford under the Freedom of Information Act in the late 1970s, but in 1981, the NSA persuaded Justice to threaten Bamford with prosecution for “possession of classified information,” a threat that helped Bamford’s book The Puzzle Palace become a best-seller.

The Justice Department in the reports ultimately recommended against prosecution, concluding that “If the intelligence agencies possessed too much discretionary authority with too little accountability, that would seem to be a 35-year failing of Presidents and the Congress rather than the agencies” (p. 171, 30 June 1976).

“Federal employees who are carrying out President Bush’s warrantless wiretapping will be especially interested in the Justice Department’s 1976 assessment of whether such wiretapping makes them criminally liable,” commented Blanton. “One of the main reasons the Ford administration supported having a law that governed wiretapping was that such a law would protect government officials and the telecom companies as long as they followed the law.”

The Archive’s posting, compiled by senior fellow Dr. Jeffrey Richelson (author of the forthcoming book, Spying on the Bomb), includes key historic documents brought to light by the Church Committee investigations of intelligence abuses, and a series of National Security Agency documents from the 1990s released under the Freedom of Information Act that describe the limits imposed by FISA and the Fourth Amendment on surveilling U.S. persons.

The posting also includes two important studies by the now-defunct Office of Technology Assessment in 1985 and 1995 on the challenges of electronic surveillance and civil liberties in a digital age, as well as a wide range of key documents from the current wiretapping debate, as featured on the Web sites of the Center for National Security Studies www.cnss.org/fisa (complete legislative history of the FISA), the Federation of American Scientists www.fas.org (the Project on Government Secrecy has published the relevant Congressional Research Service studies, among other important documents), and the Electonic Privacy Information Center www.epic.org which published the FBI’s 2002 guide, “What do I have to do to get a FISA?”

www.nsarchive.org

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THE NATIONAL SECURITY ARCHIVE is an independent non-governmental research institute and library located at The George Washington University in Washington, D.C. The Archive collects and publishes declassified documents acquired through the Freedom of Information Act (FOIA). A tax-exempt public charity, the Archive receives no U.S. government funding; its budget is supported by publication royalties and donations from foundations and individuals.

     
 
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