The terrorist attack had been as devastating as it was
unexpected. Convinced that better intelligence was the key to
preventing fresh attacks, the president resolved to seek
legislation granting the executive branch broad new wiretapping
powers.
But he had a problem: The opposition party, which controlled
Congress, was equally determined to block provisions that they saw
as an affront to privacy.
“If the Government of the United States can through,
quote-unquote, good faith tap our phones and intrude into our
lives, they violate our constitutional liberties, and that is
something that we should not tolerate,” one congressman
thundered.
“The FBI can gain access to individual phone billing records
without a subpoena or a court order. Once again I believe that
infringes upon our constitutional rights and liberties, and while
we are trying to deal with terrorism, and we should, we should not
violate our constitutional rights and liberties, and I believe this
bill in its present form does,” he said
A colleague in the Senate noted that existing law already
provided for emergency eavesdropping in situations where urgency
would not allow a warrant to be obtained in advance, because, “In
the real world, we do not need this amendment to get emergency
wiretap authority, and that is a fact.”
The president? That was William Jefferson Clinton. The terrorist
attack was the bombing of the Murrah Federal Building in Oklahoma
City. The legislation at issue — which ultimately passed without
the wiretap provisions the president had sought — was the
Antiterrorism and Effective Death Penalty Act of 1996.
And the outraged congressman doing his best impression of an
ACLU attorney? That was Republican Dan Burton of Indiana, now a
vocal defender of warrantless wiretapping authorized by President
George Bush. He was seconded by Sen. Orrin Hatch, the Republican
senator from Utah who now believes that only those with an
“irrational fear of government” fret about the extent of executive
surveillance powers.
Perhaps the reversal of roles we have seen in the present
wrangling over reforms to the Foreign Intelligence Surveillance Act
can be attributed to 9/11, which (as the saying goes) “changed
everything.”
Or maybe loathing of Clinton trumped all other considerations.
But another possibility is that Republicans’ support for executive
surveillance authority in recent decades is rooted as much in
historical accident as any deep conservative principle.
EXECUTIVE WIRETAPPING first emerged as a central political issue in
the late 1970s, when the Senate’s Church Committee uncovered a long
history of surveillance abuses, culminating in the supposedly
uniquely brazen actions of Richard Nixon, who had “authorized a
program of wiretaps which produced for the White House purely
political or personal information unrelated to national
security.”
Up until this point, as Cato Institute scholar Gene Healy
documents in his forthcoming book The Cult of the Presidency, Republicans had
been more consistent opponents of expanding executive power than
their Democratic colleagues.
After the humiliations of Watergate, however, conservative legal
thinkers began to insist that Congress and the courts had
overstepped their bounds. During the Reagan administration, the
Heritage Foundation began urging repeal of the Foreign Intelligence
Surveillance Act, which had been passed in 1978 as a result of the
Church Committee’s findings.
The campaign stalled due in large part not to the hand wringing
of civil libertarians but to the opposition of the intelligence
community. “We hear people say we can’t get the surveillance we
need or can’t meet the court’s standard,” said Edward O’Malley, who
headed the FBI’s intelligence division under President Reagan.
“That’s just not true. We have no problem getting the surveillance
we need, and the court also has protected the rights of Americans,
which is necessary. … We support this 100 percent.”
There were then, as there are now, exceptions on the right. The
FISA law — now damned by conservatives as an impossibly
burdensome, possibly even unconstitutional obstacle to legitimate
executive surveillance — was opposed by the New York
Times’s designated conservative columnist William Safire, who
feared that it would “turn every telephone instrument in every home
into a suspected household spy.”
Acknowledging conservatives “natural inclination to help the
law,” Safire nevertheless urged that it be trumped by “a
responsibility to protect the law-abiding individual from the power
of government to intrude.” By then, however, he was probably in the
minority among right wingers.
But what if it had not been Nixon who was brought low by
revelations of improper wiretaps? After all, as the title of
conservative journalist Victor Lasky’s bestseller asserted, It
Didn’t Start With Watergate.
DEMOCRATIC PRESIDENTS from FDR to LBJ had also turned their
surveillance powers to political ends, a string of abuses Lasky
gleefully catalogued.
Saintly Franklin Roosevelt had instructed the FBI to open files
on the authors of telegrams criticizing his foreign policy. Harry
Truman saw wiretap transcripts of Supreme Court justices discussing
who would succeed the late Chief Justice Harlan Stone, and what it
might mean for the court.
John F. Kennedy won a legislative fight over sugar policy with
the help of reports on surveillance of Agriculture Department
officials and congressional staffers. Perhaps most famously, Bobby
Kennedy signed off on wiretaps and microphone surveillance of
Martin Luther King; J. Edgar Hoover would later play recordings of
King’s extramarital trysts for Lyndon Johnson.
A reasonable inference from all this might be that surveillance
authority without oversight was bound to be abused for personal and
political gain. That conclusion would certainly fit with the
general conservative principle that government always tends to grow
beyond its proper limits.
Perhaps some such instinct motivated Henry L. Stimson, the
staunch conservative Republican who served as Herbert Hoover’s
secretary of state. Stimson ordered the shuttering of the American
Black Chamber, a precursor of the modern National Security Agency,
declaring that “gentlemen do not read each other’s mail.”
House Speaker Newt Gingrich rediscovered that principle during
the 1996 wiretap fight. “When you have an agency that turns 900
personnel files over to people like Craig Livingstone,” Gingrich
said in an interview, referring to the White House staffer who had
improperly accessed FBI records, “it’s very hard to justify giving
the agency more power.”
Lasky’s main conclusion, however, was that Nixon had been
unfairly railroaded. Most conservatives since have followed his
lead, citing surveillance authorized by Democratic presidents, not
as a cautionary tale, but as a model. Many conservative pundits
now, perversely, appear to regard “Bill Clinton did it” as an
irrefutable form of justification. National Review
interns, beware!
With Congress currently deadlocked on FISA reform, it seems
entirely possible that no permanent agreement on expanded wiretap
powers will be reached until a new president — perhaps, God help
us, another Clinton — inherits the Oval Office in January.
Maybe then Republicans will rediscover the conservative virtue
of skepticism about presidential spying.
