Spirited wiretap debate of '76

BY TOM BRUNE | NEWSDAY WASHINGTON BUREAU

February 5, 2006

WASHINGTON - Thirty years ago, President Gerald Ford overrode objections of top officials in his administration, including then-Defense Secretary Donald Rumsfeld and CIA Director George H.W. Bush, to support legislation creating a judicial process for foreign-intelligence wiretapping in this country, newly released documents show.

In a March 12, 1976, discussion in the White House situation room - a debate that will be echoed tomorrow in a Senate hearing on warrantless wiretaps by the National Security Agency - the Ford officials weighed benefits of a legal process against the president's inherent executive authority.

"It's just amazing. It's the exact same argument, 30 years ago," said Thomas Blanton, executive director of the private, nonprofit National Security Archive, which obtained the internal documents in a Freedom of Information Act request.

In 1978, Congress finally enacted the Foreign Intelligence Surveillance Act (FISA) after two years of discussion.

"This bill requires, for the first time, a prior judicial warrant for all electronic surveillance in the United States in which communications of U.S. persons might be intercepted," said President Jimmy Carter when he signed FISA into law on Oct. 25, 1978, according to the documents.

After The New York Times in December reported that President George W. Bush had authorized NSA eavesdropping without FISA court approval, the Bush administration has argued that the president is on solid legal ground because he has inherent executive authority for national security.

That is the position that the Nixon administration took in 1971, documents show, when it authorized the NSA to engage in wiretapping in the United States for intelligence on criminal activity including drugs, foreign support for subversive activity and presidential protection.

And the current Bush administration's program mirrors the 1971 NSA wiretapping requirement that one end of the intercepted communication be in another country, or as the NSA put it in 1971, "Telecommunications with at least one foreign terminal."

But Ford, who succeeded Nixon after he resigned following the Watergate scandal, in early 1976 announced his staff would work with Congress on crafting a wiretap law.

On March 23, 1976, Ford submitted a proposal to create "a procedure for seeking a judicial order" for foreign-intelligence wiretaps in the United States.

That position was hammered out 12 days earlier in the White House meeting, in which Ford's counsel, Philip Buchen, and Attorney General Edward Levi outlined the advantages of a wiretapping law, documents show.

Also at the meeting were Rumsfeld, the elder Bush, Secretary of State Henry Kissinger and National Security Adviser Brent Scowcroft - but not White House Chief of Staff Dick Cheney.

Buchen came to the meeting with a "talking points" memo that spelled out five "pros" and three "cons," according to one of the documents.

In favor of legislation, the memo includes avoiding a court case that a warrant is required for wiretapping, eliminating questions of validity of evidence obtained, and protecting the telecommunications companies cooperating in the taps.

Against the legislation, the memo states that it "unnecessarily requires resort to the judiciary for exercise of an inherent executive power."

Another con: "Could result in troublesome delays or even a denial of authority in particular cases."

Ultimately, Buchen and Levi persuaded Rumsfeld, Bush and Kissinger to shift their position from "adamant opposition" to the legislation to neutrality, Blanton said.

Tomorrow, Attorney General Alberto Gonzales, who was White House counsel when Bush authorized the NSA program, will spend a full day defending the legality of the program before the Senate Judiciary Committee.

In a campaign over the past two weeks, Bush, Gonzales and other administration officials have argued the NSA authorization also was implicitly approved by the Authorization for the Use of Military Force passed by Congress a week after the 9/11 terrorist attacks.