Special Report

FISA Funny Business

Guess who used to be against mass warrantless wiretaps.

By 3.25.08

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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.

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