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."

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

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...

Re:Forgot who said this

[colinrichardday]

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.

No. Lincoln suspended it in 1861 http://en.wikipedia.org/wiki/Ex_Parte_Merryman [wikipedia.org], but he did issue the preliminary Emancipation Proclamation on Sept 22, 1862
http://en.wikipedia.org/wiki/Emancipation_Proclamation [wikipedia.org], so it would appear that the OP objects to the loss of freedom to enslave.

Understanding the Earlier Redaction

[jlaprise1]

The really big deal in the document is the redaction. In the earlier version, item C allowing minimal physical intrusion was redacted. In the version I FOIAed it was declassified.

What's the big deal? In 1974, electronic surveillance wasn't covered by the law. The law didn't even envision such a thing. Breaking and entering, however the law was well prepared to deal with.

Ford authorized the DoJ to conduct break-ins without a warrant. I know really ironic coming on the heels of Nixon, but I have to reiterate; Ford was a really stout defender of privacy rights based on all the research I've done.

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

Re:So, what are they doing and hiding *right now*

[Garrett Fox]

Well, for starters, Obama has continued Bush's warrantless wiretapping policy. Second, he's continued the tradition of re-authorizing the ongoing state of national emergency which has existed, continuously, since at least 1979. (Each President has issued executive orders, publicly available, declaring that a "state of emergency" exists because of the 1979 Iran Hostage Crisis, not to mention other extreme emergencies like diamond smuggling in Sierra Leone.)

I wouldn't be too upset about these, because the assault on the Constitution is now mostly open rather than secret.