The American public had barely stopped talking about Richard Nixon’s infamous Watergate tapes and his decision to authorize domestic snooping when then-President Gerald R. Ford authorized the FBI to carry out warrantless electronic surveillance inside the United States.
A classified memo from the president, dated December 19, 1974, authorized the attorney general “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.”
The two-page memo (PDF), signed by Ford, states that “I have been advised by you and the Department of State that such surveillance is consistent with the Constitution, Laws and Treaties of the United States.”
The “you” referred to was then-Attorney General William B. Saxbe, a former Republican senator from Ohio who served for two years as Ford’s attorney general. Saxbe now has the distinction of being the oldest living Republican senator. The memo suggests that Saxbe had told Ford that warrantless wiretapping of US residents is constitutional.
“Ford was completely motivated by defending against the Cold War threat of the Soviet Union,” John Laprise, the Northwestern University communications professor who first obtained the memo, told Politics Daily’s Andrew Becker. “This could be Bush after 9/11 or Obama after becoming president, but it’s President Ford 35 years ago, coping with Cold War struggles. It’s really a stunning document that raises all sorts of questions.”
Ford’s memo laid out a number of conditions under which the power to wiretap without a warrant should be used. One condition is that the surveillance must relate to “protecting the nation against actual or potential attack”; that the target of the surveillance is “assisting a foreign power or foreign-based political group”; and that it is done “with the minimum amount of physical intrusion necessary to obtain the information sought.”
Steven Aftergood, head of the Federation of American Scientists’ Project on Government Secrecy, told Politics Daily that the memo’s order to “reaffirm and renew” the warrantless surveillance suggests that earlier presidents had authorized something similar.
“It memorializes the practice of unchecked domestic surveillance,” he said. “Clearly there are gaps in the record, and there are new revelations to be discovered, even about events from 40 years ago.”
As Kim Zetter notes at Wired.com, Ford’s memo came just a month before the establishment of the Church Committee, a Senate panel set up to investigate claims of illegal surveillance by the FBI and the CIA. Surprisingly, Becker reports that “despite authorizing wiretaps for national security reasons, Ford believed strongly in privacy rights.”
Previously declassified 1976 White House documents from his administration show that the then-president favored a proposed law to govern electronic surveillance, according to the National Security Archives at George Washington University, which first obtained those records. Ford supported the legislation despite objections from then-Secretary of Defense Donald Rumsfeld and then-CIA director George H.W. Bush.
Notably, a young Dick Cheney, then Ford’s White House chief of staff, stringently opposed the Church Committee and the Foreign Intelligence Surveillance Act, the body of laws restricting the government’s surveillance capabilities that followed in the wake of the Church Committee.
Some writers have suggested that Cheney’s failure to stop FISA as chief of staff may have motivated his desire to re-establish warrantless wiretapping when he became vice president.