Wednesday, February 08, 2006

FISA Mania! and Historical Revisionists

Many in the administration continue to claim that they did nothing wrong under FISA. They just have a different interpretation of it. An interpretation they view as particularly valid and within FISA. Wouldn't that seem odd if right when FISA was passed, certain administration mainstays were violently opposing it precisely because it wouldn't allow what it is they're doing now? I would say it would seem odd. But the truth is often odd.

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

The roughly 200 pages of historic records obtained by The Associated Press reflect a remarkably similar dispute between the White House and Congress fully three decades before President Bush's acknowledgment he authorized wiretaps without warrants of some Americans in terrorism investigations.


"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.

In another document, Jack Marsh, a White House adviser, outlined options for Ford over the wiretap legislation. Marsh alerted Ford to objections by Bush as CIA director and by Rumsfeld, Henry Kissinger and Brent Scowcroft over the scope of a provision to require judicial oversight of wiretaps. At the time, Rumsfeld was defense secretary, Kissinger was secretary of state and Scowcroft was the White House national security adviser.

They opposed passage of FISA precisely because they thought it abridged the Imperial Executive power they wanted to enshrine so much. So it seems hardly possible to me now that they think they were following FISA when they thought FISA didn't allow this stuff when it was passed in the first place! The Judiciary Committee and key Republicans don't seem anymore convinced by Alberto Gonzalez' John Kerry-esque performance trying to redefine various positions and stances to the point of meaninglessness. It's evident to me that they don't agree with FISA's existence, and are essentially trying to execute some sort of end-run by interpreting the law into nothingness. It's insincere and duplicitous and it shows. But will anyone call them on it or, accomplishing that, stop them? Probably not. Hat tip to Yglesias, who has this last little nugget:

It seems, meanwhile, that beneath all the smokescreens what they're really trying to say is that they think FISA is unconstitutional, so they ought to be allowed to violate it. What I can't understand is why they won't just say so and see if they can get a court to agree. Are the legal arguments here so terrible that there's no chance even the new, Alito-ified court won't agree?