The Bush administration continues to mimic and trace the trajectory of the Nixon administration. There on the front of your New York Times you see the big article: Bush Lets U.S. Spy on Callers Without Courts, where it is revealed that:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Now, let’s get in our time machine:

On October 29th and November 6th, 1975, the Church Commission held hearings on THE NATIONAL SECURITY AGENCY AND FOURTH AMENDMENT RIGHTS. It was the first time most of the general public had ever heard of our largest intelligence agency. Senator Frank Church of Idaho was chairing the hearings which were part of a larger effort, formally known as the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. Here is how he opened the hearing:

The CHAIRMAN. The hearing will please come to order.

This morning, the committee begins public hearings on the National Security Agency or, as it is more commonly known, the NSA. Actually, the Agency name is unknown to most Americans, either by its acronym or its full name. In contrast to the CIA, one has to search far and wide to find someone who has ever heard of the NSA. This is peculiar, because the National Security Agency is an immense installation. In its task of collecting intelligence by intercepting foreign communications, the NSA employs thousands of people and operates with an enormous budget. Its expansive computer facilities comprise some of the most complex and sophisticated electronic machinery in the world.

Just as the NSA is one of the largest and least known of the intelligence agencies, it is also the most reticent. While it sweeps in messages from around the world, it gives out precious little information about itself. Even the legal basis for the activities of NSA is different from other intelligence agencies. No statute establishes the NSA or defines the permissible scope of its responsibilities. Rather, Executive directives make up the sole “charter” for the Agency. Furthermore. these directives fail to define precisely what constitutes the “technical and intelligence information” which the NSA is authorized to collect. Since its establishment in 1952 as a part of the Defense Department, representatives of the NSA have never appeared before the Senate in a public hearing. Today we will bring the Agency from behind closed doors

The committee has elected to hold public hearings on the NSA only after the most careful consideration.

Senator Church then went on to explain …
how sensitive the work of the NSA was and to describe the extensive precautions and preparations his committee had taken to protect their secrets. But, he said:

We are tasked, by Senate Resolution 21, to investigate “illegal, improper, or unethical activities” engaged in by intelligence agencies, and to decide on the “need for specific legislative authority to govern operations of the National Security Agency.”

And, he further explained:

We have a particular obligation to examine the NSA, in light of its tremendous potential for abuse. It has the capacity to monitor the private communications of American citizens without the use of a “bug” or “tap.” The interception of international communications signals sent through the air is the job of NSA; and, thanks to modern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awesome technology against domestic communications. Indeed, as our hearing into the Huston plan demonstrated, a previous administration and a former NSA Director favored using this potential against certain U.S. citizens for domestic intelligence purposes. While the Huston plan was never fully put into effect, our investigation has revealed that the NSA had in fact been intentionally monitoring the overseas communications of certain U.S. citizens long before the Huston plan was proposed-and continued to do so after it was revoked. This incident illustrates how the NSA could be turned inward and used against our own people. It has been the difficult task of the committee to find a way through the tangled webs of classification and the claims of national security — however valid they may be — to inform the American public of deficiencies in their intelligence services. It is not, of course, a task without risks. but it is the course we have set for ourselves. The discussions which will be held this morning are efforts to identify publicly certain activities undertaken by the NSA which are of questionable propriety and dubious legality.

In case you’ve never heard of the Huston Plan, here is a recap:

The Huston Plan was a 43 page report and outline of proposed security operations put together by White House aide Tom Charles Huston in 1970. It first came to light during the 1973 Watergate hearings headed by Senator Sam Ervin (N.C.).

The impetus for this report stemmed from President Nixon wanting more coordination of domestic intelligence in the area of gathering information about left-wing radicals and the anti-war movement in general. Huston had been assigned as White House liaison to the Interagency Committee on Intelligence (ICI), a group chaired by J. Edgar Hoover, then FBI Director. Huston worked closely with William C. Sullivan, Hoovers assistant, in drawing up the options listed in what eventually became the document known as the Huston Plan.

Among other things the plan called for domestic burglary, illegal electronic surveillance and opening of mail of domestic radicals. At one time it also called for the creation of camps in Western states where anti-war protestors or anti-war radicals would be detained.

In mid-July of 1970 President Nixon ratified the proposals and they were submitted as a document to the directors of the FBI, CIA, DIA and the NSA.

Out of these only Hoover objected to the plan, and gained the support of then Attorney General John Mitchell to pressure Nixon to rescind the plan. And despite the ultimate decision by the President to revoke the Huston Plan, several of its provisions were implemented anyway.

The NSA was kind of sucked into its surveillance of American citizens bit by bit. It started, in the aftermath of the Kennedy assassination, with the Secret Service making requests about suspicious characters they felt might pose a threat the the President. It was expanded, again under LBJ, to include surveillance of suspected narcotics traffickers and then to people suspected of fomenting riots throughout the country. Nixon didn’t start this snowball rolling, but he did take it several steps farther than LBJ and used it to take on his perceived political enemies, rather than as a tool to protect America’s security.

These abuses were curtailed after the Church Commission conducted their investigation. Now, we have a reprise:

The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation’s intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials. In response, President Bush significantly eased limits on American intelligence and law enforcement agencies and the military.

That sounds reasonable so far, but there is real reason to be concerned.

As the Washington Post reports:

Kate Martin, director of the Center for National Security Studies at George Washington University, said the secret order may amount to the president authorizing criminal activity.

The law governing clandestine surveillance in the United States, the Foreign Intelligence Surveillance Act, prohibits conducting electronic surveillance not authorized by statute. A government agent can try to avoid prosecution if he can show he was “engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction,” according to the law.

“This is as shocking a revelation as we have ever seen from the Bush administration,” said Martin, who has been sharply critical of the administration’s surveillance and detention policies. “It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans.”

From 1952 to 1973 no employee of the NSA is known to have have briefed Congress about their activities. And the extreme secrecy surrounding the NSA persists to this day. Again, from the Washington Post:

…sources said the actual work of the NSA is so closely held that it is difficult to determine whether it is acting within the law.

But the New York Times has a source from within the NSA that shows just how concerned they were with the legality of what they were doing:

some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

That is not a good sign.

This domestic surveillance program started out with a plausible justification. We did not know if there would be follow-on attacks to 9/11 or whether there were other sleeper cells that had already settled in America. But, as in the 1960’s once you open the door to domestic surveillance the fourth amendment is in jeopardy of being trampled. It appears that anyone in a suspected terrorist’s cell phone was monitored without any warrant. That would mean their mother, their babysitter, their accountant, the pizza delivery dude. It’s pretty easy to get a warrant to listen in on conversations of the associates of terror suspects, so why did the Bush administration decide to jettison that requirement?

The Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to the United States…

Sorry. But that is not good enough. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

No exceptions.

This is another battle that we will have to refight. Apparently, Watergate and the Church Commission resolved nothing and we are right back where we started.