No Comparison

I've seen a few versions of this story on the AP (the earlier version I saw last night discussed Cheney and Rumsfeld's role in the Ford administration, trying to fight post-Nixon reforms), comparing the debate today on warrantless wiretapping and presidential power to that occurred which in the mid-1970s. I think the comparison misses a point.

AP: Papers: Ford White House Weighed Wiretaps

The White House was eager to protect its ability to gather foreign intelligence. Congress was eager to rein in executive power. What sounds like a new debate over the president's ability to eavesdrop without warrants occurred 30 years ago.

Documents from the Ford administration reflect a remarkably similar dispute between the White House and Congress a generation before President Bush acknowledged that he authorized wiretaps without warrants on some Americans in terrorism investigations...

The point missed is this... That debate occurred 30 years ago because President Nixon had been forced to resign for all the same crimes that President Bush is doing now (illegal surveillance, deceit about war, claims of unlimited executive power, etc). These were things that led Congress to approach impeachment against Nixon. This debate was based on the idea that those abuses must never be allowed to happen again. They now have. In addition, the FISA law and system had not yet been passed during the Ford administration; it was set up because of this debate and was passed by Congress and signed into law by President Carter in 1978. And, as Sen. Specter now posits in his letter to the Attorney General, "President Carter's signature on FISA in 1978, together with his signing statement, [is] an explicit renunciation of any claim to inherent Executive authority under Article II of the Constitution to conduct warrantless domestic surveillance when the Act provided the exclusive procedures for such surveillance".

And that's the point.

The AP article does have this good money quote-

Lisa Graves, senior counsel for legislative strategy at the American Civil Liberties Union, said comparing the Ford-era debate to the current controversy is "misleading because no matter what Mr. Cheney or Mr. Rumsfeld may have argued back in 1976, the fact is they lost. When Congress passed the Foreign Intelligence Surveillance Act in 1978, Congress decisively resolved this debate.

"Unlike the current administration, the Ford administration never claimed the right to violate a law requiring judicial oversight of wiretaps in foreign intelligence investigations if Congress were to pass such a law."

Bingo.

The abuses of the Nixon era spawned important laws to accomodate needed surveillance, but do so with oversight to prevent an unchecked, all-powerful executive from being a law unto himself. President Bush has broken those laws, by his own admission, and has become the unchecked, all-powerful executive we hoped we would never have again after Nixon resigned. That is the issue. And it must be resolved.

That will, hopefully, begin on Monday.