Wiretap Debate Déjà Vu: Ford Admin. rejected current administration's arguments, succumbed to 'rule of law'

[Dave Farber <dave () farber net>]

-------- Original Message --------
Subject: 	FW: Wiretap Debate Déjà Vu: Ford Admin. rejected current 
administration's arguments, succumbed to 'rule of law'
Date:   Sun, 05 Feb 2006 12:38:55 -0500
From:   Ethan Ackerman <eackerma () u washington edu>
Reply-To:       eackerma () u washington edu
To:     David Farber <dave () farber net>



Greetings Dave,
Apologies that this isn't much more than a clipped fwd., but it seems very
timely...

The "other" NSA, George Washington U.'s National Security Archive, does
excellent national security FOIA work and recently came up with quite a few
interesting documents about the history of presidential wiretapping
decision-making - particularly relevant for the light it sheds on how this
'argument' has already been 'decided,' the role of recent administration
officials back then, and their [re]arguments now.

excerpts:
"...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..."

"...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...."

Hmm, perhaps AT&T's lawyers should read that DOJ memo now that EFF has filed
suit against them.

-Ethan


-----Original Message-----
From: The National Security Archive [mailto:NSARCHIVE () hermes gwu edu]On
Behalf Of National Security Archive
Sent: Saturday, February 04, 2006 2:28 PM
To: NSARCHIVE () hermes gwu edu
Subject: Wiretap Debate Déjà Vu: Electronic Surveillance from the Cold
War to Al-Qaeda


National Security Archive Update, February 4, 2006

Wiretap Debate Déjà Vu

Electronic Surveillance:
> From the Cold War to Al-Qaeda

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

http://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 déjà 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 <http://www.cnss.org/fisa>
(complete legislative history of the FISA), the Federation of American
Scientists <http://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
<http://www.epic.org> which published the FBI's 2002 guide, "What do I have
to do to get a FISA?"

http://www.nsarchive.org

________________________________________________________

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.

_________________________________________________________

PRIVACY NOTICE The National Security Archive does not and will never share
the names or e-mail addresses of its subscribers with any other
organization. Once a year, we will write you and ask for your financial
support. We may also ask you for your ideas for Freedom of Information
requests, documentation projects, or other issues that the Archive should
take on. We would welcome your input, and any information you care to share
with us about your special interests. But we do not sell or rent any
information about subscribers to any other party.






-------------------------------------
You are subscribed as lists-ip () insecure org
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/