Cold War Warrantless Wiretapping

somanyrobots writes "President Gerald Ford secretly authorized the use of warrantless domestic wiretaps for foreign intelligence and counterintelligence purposes soon after coming into office, according to a declassified document. The Dec. 19, 1974, White House memorandum, marked Top Secret / Exclusively Eyes Only and signed by Ford, gave then-Attorney General William B. Saxbe and his successors in office authorization 'to approve, without prior judicial warrants, specific electronic surveillance within the United States which may be requested by the Director of the Federal Bureau of Investigation.'" And reader jlaprise1 adds, "My research [from 2009] makes the news! President Ford authorized warrantless wiretaps in December 1976 and laid the foundation (PDF) for US telecommunications security policy."

Comments

History Repeats Itself

[WrongSizeGlass]

This can't really surprise anyone. I'm sure there are plenty of things our government has kept from us either "for our own good" (their rationale for hiding their actions) and for national security reasons (we can't disclose everything). But how much do we really want to know? No matter how much they tell us we always suspect more ... and the conspiracy theorists will only use the truth to build even more elaborate plots of imaginative intrigue and nefarious actions.

Re:History Repeats Itself

[jlaprise1]

With respect to electronic surveillance, legality wasn't at issue. In 1974, the law did not recognize the existence of electronic surveillance. It did however regulate lawful and unlawful physical entry.

The originally redacted text was "That the minimum physical intrusion necessary to obtain the information sought will be used."

This clearly contradicted constitutional protections for unlawful search and seizure. Until the advent of FISA, all of the other aspects of the memo were legal or perhaps better defined as extra-legal. Ford delegated extraconstitutional power to the AG in 1974. So the Ford memo is revealing the legal and legally questionable methods it is employing, taking care to conceal the most questionable.

From current available information, the government since 9/11 is probably taking a similar approach. At present, the law does not recognize the capture or use of metadata and the courts have ruled that information on the outside of physical mail i.e. addresses are not protected. From conversations I have had, since 9/11 I suspect that the following is taking place:

Using the purported, NSA capture technology identified in Telco central offices, the government is collecting information about internet traffic patterns (metadata) and content but is not reading the content.

Using networking theory, they identify patterns of usage that are statistically similar to the patterns of usage of known terrorists.

The government then approaches the FISA court with this evidence seeking to obtain a warrant for the content, which they have previously captured but not read.

FISA court grants the government a warrant and it then legally reads the previously captured content.

The government's use of intelligence methods regularly outpaces the law's ability to catch up and recognize the existence and power of new technologies. This memo is evidence of that.I think that in all likelihood what the government is doing with the telephone companies is legal for the government to do because the law doesn't address their activities just as it didn't address electronic surveillance in 1974. The telephone companies desperate plea for immunity speaks to the fact that telecom law _does_ address this and that they would have been legally liable for providing customer information.

Techno-legal arbitrage.

John Laprise Ph.D.
Visiting Assistant Professor
Northwestern University in Qatar

Re:History Repeats Itself

[Lakitu]

No, it's just that with a press corps that overwhelmingly identifies with the Democratic party, the excesses of Republicans are more likely to be investigated and reported on.

Not quite. It's fun to believe in, but really, you're just an idiot with a persecution complex for doing so.

They "always seem" to be Republicans because there's a terribly small sample size. There's only been 44 P's OTUS, and 2 of them have now been indicated as having "corrupted and subverted existing [wiretapping] laws", so it's not surprising at all that they are both affiliated with the same party.

Re:Forgot who said this

[hduff]

If you believe in Democracy, then you implicitly endorse secret police.
If you believe in anything else, then you explicitly endorse those same powers out in the open.

Citation needed so we can better understand this apparent crazy talk.

The only difference is how much we are willing to delude ourselves. We call ourselves Free, but we haven't been so since September 24, 1862.

Nice semi-cryptic pseudo-conspiracy-like reference.

  September 24, 1862 is the date President Lincoln suspended Habeas Corpus during the American Civil War, a time of rebellion (certainly as defined from his perspective). It was only suspended for those considered to be in rebellion.

Article I, Section 9, clause 2 of the Constitution states, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Nothing unconstitutional or illegal with what Lincoln did no matter how much you dislike it. At least he did it out in the open.

I would argue that until there are no others who wish to control us, no one will never be "Free". That won't occur until there is only one person left on Earth. Until then, your point is moot.

Recruiting campaign...

[Tackhead]

I remember an old joke that went something like this...

"NSA is conducting advanced research in the fields of applied mathematics, signal processing, and cryptography. To apply for one of these exciting positions, just pick up the phone, call your grandmother, and ask for one!"

Life imitates art :-)

A Little HIstory

[Anonymous Coward]

Who was Ford's first Chief of Staff? Donald Rumsfeld. And when Rumsfeld became his Secretary of Defense, who did Ford appoint Chief of Staff in his place? Dick Cheney, Rumsfeld's assistant. And who did Ford make his head of the CIA? George H. W. Bush. All of this happened during the "Halloween Massacre" of November 1975. This put Rumsfeld and Bush on Ford's NSC. Cheney would not have on the NSC, but he certainly would have known about it. Consider this story about memos Cheney wrote in 1975 regarding a Seymour Hersch story about the US tapping Soviet underwater cables. Cheney was clearly in the loop on intelligence and surveillance programs. So three of George W. Bush's closest advisors - his father, his Secretary of Defense, and his Vice-President - would have known about this. Don't you think when Cheney or Rumsfeld suggested this, they said to W. "Gerry Ford did it, and no one complained that it was unConstitutional - just ask your father." (Admittedly, Rumsfeld and Bush Sr. aren't exactly friendly - Rumsfeld tried to push Bush Sr. out at CIA back in the Ford days, and Bush Sr. was one of the main critics in the back-office attempts - eventually successful - to push Rumsfeld out at Defense in 2006. But it's very interesting to see how closely the Ford Administration was tied to the W. administration.) My point is that there was a cabal in the Ford and Bush administrations, with Rumsfeld and Cheney at its core, who have a history of evangelizing the idea of broad electronic surveillance which I would argue violates our Constitutional guarantees against arbitrary searches. There were other cliques in the W. administration with similar ideas (John Poindexter), so perhaps we should see this as something that W. believed in, strongly.

Re:A Little HIstory

[jlaprise1]

All true...though Ford was really concerned about the Soviet threat. He genuinely believed that this was the only way to deal with the threat of soviet eavesdropping on US microwave telecommunications. Ford was actually a champion of personal privacy. It's just that competing with the personal privacy that we think of everyday , there is a second kind of privacy which the government is concerned with. Their focus is protecting citizens from foreign surveillance threats and as these and other documents show, the responsibility of government to protect citizens' privacy from external threats trumps citizens' right to avoid surveillance from their government.

This duality is clear in the documentary record but does not show up in public. It's only a debate held in the White House. Perhaps it should be entertained elsewhere as well...

Should've Impeached Nixon

[Doc Ruby]

What finally pushed the Congress into preparing to impeach Nixon was the revelation that Nixon was secretly (and, of course, warrantlessly) wiretapping Congress. Keeping Vietnam going, using the CIA to break into Democratic campaign HQ at the Watergate (and a shrink's office) - all just "business as usual". But the wiretapping was enough to push them over the edge.

So George Bush Sr, Republican National Committee Chair, went to Nixon to explain that enough Congressional Republicans would vote to impeach that he would be impeached. So Nixon resigned. And Ford, who Nixon had got to replace his original VP, Spiro Agnew, when Agnew was convicted of income tax evasion (on massive bribes he'd taken but not reported to the IRS), inherited Nixon's evil empire. George Bush Sr inherited the CIA.

And then Ford started warrantlessly wiretapping people, just like Nixon had. Nixon was wiretapping not only Congress, but all kinds of political enemies, including anti-war and environmentalist activists, counterculture figures like John Lennon. Nixon turned the White House into a Republican Kremlin. And Ford kept it that way.

In 1978, with Democrat Carter in the White House a Democratic Congress passed FISA, which was designed to be the supreme law controlling wiretapping. Nominally subordinate to only the 4th Amendment, which it violated by allowing exceptions to the Amendment's requirement of a warrant issued prior to any wiretapping.

Republican George Bush Jr inherited the presidency in 2000. And soon wiretapped every American, all our phonecalls and email, without a warrant. Even though the FISA court issued a warrant, before or after the fact, for every single one of the hundreds of thousands of requests it got, however invalid any of those requests might have been.

Even to the point of wiretapping conversations between defendants and their lawyers in cases brought by the Bush "Justice" Department, which was just ruled illegal, years later. With Bush leaving office unimpeached.

The Congress should've impeached Nixon. It should have impeached Bush. Hell, it should've impeached Reagan, for running the secret Iran/Contra wars, illegally supplying Iran with weapons and shipping drugs like cocaine and opium around on CIA planes - the investigation probably would have turned up warrantless wiretapping to protect the other illegal programmes.

But we didn't. And Republicans, even Bushes (and Cheneys) get to walk around free, free to run for office. And a large section of the public that believes "it's only a crime if you get caught" treats those criminals and traitors to their oaths to protect the Constitution as "statesmen".

As every time before, the next one will be even worse. Hi, president Romney, how ya doin'?

Re:Should've Impeached Nixon

[MasterOfMagic]

Nominally subordinate to only the 4th Amendment, which it violated by allowing exceptions to the Amendment's requirement of a warrant issued prior to any wiretapping.

Um, no. The Fourth Amendment says no unreasonable search or seizure, not no unwarranted search and seizure. It does, however, set out what a warrant requires, but it does not require a warrant for a lawful search:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There are many cases where a warrentless search has been held to be reasonable, and thus not a violation of the Fourth Amendment.

That being said, warrantless wiretapping of the entire US population is, indeed, an unreasonable intrusion, in my opinion.

Where does the Constitution mention wiretapping?

[jjo]

There seems to be a common understanding around Slashdot that domestic warrantless wiretapping is always unconstitutional.

Wiretapping is not mentioned in the Constitution, but one's "persons, houses, papers, and effects" have been interpreted in many but not all cases to include electronic communications. Some of the cases where the courts have not extended constitutional protection in this way are for foreign communications and for domestic communications with agents of foreign powers.

A few years after the Ford memo mentioned above, Congress passed the FISA statute, in an attempt to somewhat restrict these constitutionally-permitted warrantless wiretaps. However, it is not a settled question whether the Congress has the right, through legislation, to restrict the President's authority, as Commander-in-Chief, to conduct otherwise-constitutional foreign intelligence operations.

The bottom line is that the issue is not as clear as you might think.