The FISA File

Athan G. Theoharis

With a debate now raging over George W. Bush's secret authorization of warrantless wiretaps by the National Security Agency in defiance of the 1978 Foreign Intelligence Surveillance Act, we must take another look at why Congress passed the act in the first place. The legislative history clearly shows that the intention was to deny the President the unchecked right to determine whether a proposed target met a legitimate "foreign intelligence" need. Instead, Congress ordained that all proposals to intercept such communications with foreigners must first be reviewed and approved by a special FISA court.
Prodding Congress into action in 1978 were recent revelations of abuses by the NSA. One was Operation Shamrock, instituted in 1947 to intercept telegraph messages; another was Operation Minaret, created in 1967 to intercept the electronic communications of militant civil rights and anti-Vietnam War activists. NSA officials knew these programs were illegal and accordingly devised procedures to preclude discovery of their actions. Also important were revelations that President Nixon had co-opted the NSA and the FBI to advance his own political and policy agendas.
Nixon's abuses started after Congress passed the 1968 Omnibus Crime Control and Safe Streets Act. This law included a section allowing wiretapping that had been banned by the 1934 Communications Act and authorizing its use if a warrant had been obtained. But it also stated that the warrant requirement would not "limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities." During the debate on this proposal, Senator Philip Hart asked Senators John McClellan and Spessard Holland, the floor leaders on the bill, whether this provision gave "the President a blank check to tap or bug without judicial supervision, when he finds, on his own motion, that an activity poses a 'clear and present danger to the Government of the United States.'" McClellan and Holland denied that it would. They contended that the language was neutral and did not "affirmatively" grant any such powers to the President but merely stated that the President's (undefined) constitutional powers were not restricted.

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