Say Anything Blog

Interesting...

WASHINGTON - An intense debate erupted during the Ford administration over the president's powers to eavesdrop without warrants to gather foreign intelligence, according to government documents. George H.W. Bush, Donald Rumsfeld and Dick Cheney are cited in the documents. . . .

"Yogi Berra was right: It's deja vu all over again," said Tom Blanton, executive director for the National Security Archive, a nongovernment research group at George Washington University. "It's the same debate."

Senate Judiciary Committee hearings begin Monday over 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 Bush 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," wrote Robert Ingersoll, then-deputy secretary of state, in a 1976 memorandum to President Ford about the proposed bill on electronic surveillance.

George H.W. Bush, then director of the CIA, wanted to ensure "no unnecessary diminution of collection of important foreign intelligence" 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," Bush wrote.

There is quite a bit of interesting information here.

For one thing, the fact that the members of the Ford administration wanted to ensure that any legislation passed by Congress wasn't seen as an infrigement upon the executive's ability to gather foreign intelligence and defend the country. This is consistent with the position taken by members in the Bush administration - many of whom were also members of the Ford administration - today. They claim now that in a time of war, when the President's powers as defined by Article II of the Constitution and subsequent jurisprudence on the matter are invoked by Congress, the Foreign Intelligence Security Act simply does not apply. Because no statute written by Congress can supercede what is laid out in the constitution itself. If a statute does supercede the Constitution the statute is, by definition, unconstitutional. In such a situation the President's only limitation is the Constitution itself in that he must still respect the rights and rules set out in that document even as he exercises the powers granted by it.

To get to the point, this is the same position taken by the same people over 30 years ago. Which puts lie to the idea that this NSA foreign intelligence program is some arcane recent concoction by the Bush administration. It is not. It is simply the manifestation of powers considered and protected by Presidents of both political persuasions spanning decades.

Another interesting thing to note is that it would appear from then-CIA chief Bush Senior's quote in the article that the FISA act was an attempt to facilitate domestic intelligence gathering in times of peace by putting in place a judicial apparatus that would put at ease the minds of communication industry executives wary of too much government intrusion. I do not believe the law was created to limit the President's ability to gather intelligence during a time of war but rather to make it easier in times of peace, yet the former is how the statute is being cast today by the opportunist left and their cooperatives in the media.