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The FISA File | The Nation

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The FISA File

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With a debate now raging over George W. Bush's secret authorization of warrantless wiretaps by the National Security Agency in defiance of the 1978 Foreign Intelligence Surveillance Act, we must take another look at why Congress passed the act in the first place. The legislative history clearly shows that the intention was to deny the President the unchecked right to determine whether a proposed target met a legitimate "foreign intelligence" need. Instead, Congress ordained that all proposals to intercept such communications with foreigners must first be reviewed and approved by a special FISA court.

About the Author

Athan G. Theoharis
Athan G. Theoharis, a professor of history at Marquette University, is the author, most recently, of The FBI and...

Prodding Congress into action in 1978 were recent revelations of abuses by the NSA. One was Operation Shamrock, instituted in 1947 to intercept telegraph messages; another was Operation Minaret, created in 1967 to intercept the electronic communications of militant civil rights and anti-Vietnam War activists. NSA officials knew these programs were illegal and accordingly devised procedures to preclude discovery of their actions. Also important were revelations that President Nixon had co-opted the NSA and the FBI to advance his own political and policy agendas.

Nixon's abuses started after Congress passed the 1968 Omnibus Crime Control and Safe Streets Act. This law included a section allowing wiretapping that had been banned by the 1934 Communications Act and authorizing its use if a warrant had been obtained. But it also stated that the warrant requirement would not "limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities." During the debate on this proposal, Senator Philip Hart asked Senators John McClellan and Spessard Holland, the floor leaders on the bill, whether this provision gave "the President a blank check to tap or bug without judicial supervision, when he finds, on his own motion, that an activity poses a 'clear and present danger to the Government of the United States.'" McClellan and Holland denied that it would. They contended that the language was neutral and did not "affirmatively" grant any such powers to the President but merely stated that the President's (undefined) constitutional powers were not restricted.

As it turned out, Nixon was the first President to exploit this loophole. The occasion was a 1969 article in the New York Times by William Beecher revealing that the United States was bombing Cambodia. This disclosure squarely contradicted the claims the Administration had been making to the press and Congress. Angered, Nixon and his National Security Adviser Henry Kissinger ordered the FBI to investigate the source of the leak. In response, the bureau wiretapped Beecher and three other Washington-based reporters, plus thirteen Nixon Administration officials, including National Security Council (NSC) aides Morton Halperin and Anthony Lake. The objective of this request was to promote the President's potentially controversial policies by stopping leaks of negative or contrary information to the press. The wiretaps, subsequently, promoted the President's partisan interests as well: Halperin and Lake continued to be tapped after they left the NSC to join the presidential campaign staff of Senator Edmund Muskie, the 1972 Democratic frontrunner.

The NSC wiretaps preceded another Nixonian initiative, this time to use the intelligence community to develop information linking the President's radical critics with international communism. Dissatisfied with the FBI's failure to quarry the desired information, Nixon in June 1970 directed a special interagency task force to review the capabilities of the intelligence community and recommend changes. The resulting report, forwarded to the President by Tom Charles Huston, White House representative on the task force, urged Nixon to authorize a series of "clearly illegal" activities, including wiretaps, bugs, break-ins, mail openings and interceptions of international communications. Nixon agreed, but to assure himself "deniability," he had Huston sign the order authorizing these tactics. (The abuses were first revealed in the Watergate hearings and probed more fully by the Church committee.)

Nixon was not the only President to deploy the intelligence agencies on behalf of his own agendas. Starting with Franklin Roosevelt, Presidents have made the FBI an intelligence arm of the White House. Lyndon Johnson frequently demanded "name check" requests--a search of FBI files for all derogatory information on an individual--on reporters who had written pieces critical of his policies. The revelation of this practice by the Church committee in 1975 led Pulitzer Prize-winning Times reporter Harrison Salisbury to file a Freedom of Information Act request for his FBI file.

Salisbury's suspicions proved correct. His file confirmed that he had been the subject of two name-check requests. The Eisenhower Administration had ordered one in 1954, when Salisbury returned home from Moscow, where he had been chief Times correspondent. More ominous, in 1966, when Salisbury traveled to Hanoi and sent back reports debunking the President's claims that US "precision bombing" was hitting only North Vietnamese military targets, the Johnson Administration requested a name check.

Salisbury's FBI file also contained reports sent to the FBI by the NSA. Because these reports originated outside the bureau, FBI officials, in response to the FOIA request, forwarded them to the NSA for review and release. Claiming "national security" grounds, NSA officials refused to disclose them or any other reports it had on Salisbury. When the Times reporter brought suit demanding their release, the courts upheld the NSA claim.

Because of this ruling, we do not now know whether the NSA deliberately targeted Salisbury as a reporter or had simply swept up his messages among the flow of communications from or to Communist areas (Moscow, Hanoi). And because the NSA reports remain classified, it is also impossible to discover how this information was used. What we do know is that even though Salisbury's actions were those of a reporter and not a spy, NSA officials, at a minimum, had forwarded the intercepted information to the FBI.

The Salisbury intercepts, NSC wiretaps and Huston Plan initiatives illustrate how Presidents used wiretaps under a cloak of secrecy not to further legitimate national security interests but to advance their own aims. This ability to conduct policy secretly also confirms the indifference of White House officials to the rule of law, exemplified in the Huston Plan's stark recommendation of "clearly illegal" activities.

In the course of the Church committee's investigation into presidential abuse of the intelligence agencies, investigators questioned Nixon about the Huston Plan. Nixon, who by then had resigned the presidency to avoid impeachment, offered a rationale that strikingly resembles the royal prerogative: "It is quite obvious that there are certain inherently governmental actions which if undertaken by the sovereign...are lawful but which if undertaken by private persons are not.... But it is naive to attempt to characterize activities a President might authorize as 'legal' or 'illegal' without reference to the circumstances under which he concludes that the activity is necessary."

Although his language is less blatant, George Bush is claiming the same imperial powers today. As the above history shows, no President should be trusted to wiretap secretly and without any independent review to further a claimed public interest.

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