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.
“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 roughly 200 pages of 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.
Bush
also complained that some major communications companies were unwilling
to install government wiretaps without a judge’s approval. Such a
refusal “seriously affects the capabilities of the intelligence
community,” he wrote.
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 National Security
Archive separately obtained many of the same documents as the AP and
planned to publish them on its Web site Saturday.
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
inside 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 a telephone 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 about “will we get hit with
violating the First Amendment to the Constitution?”
CIA Director
Porter Goss told lawmakers this 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.
___
Associated Press writer Ted Bridis contributed to this report.
