Published online by Cambridge University Press: 07 July 2020
In the mid-1970s, Congress and the judiciary moved to regulate the National Security Agency (NSA) at a moment when such regulation might have restricted the growth of electronic surveillance. The Ford administration played a crucial role in preventing that from happening. It did so by controlling the flow of intelligence information to Congress and by establishing a flexible new legal framework for intelligence based on broad executive orders, narrow legislation, and legal opinions written by executive branch lawyers. This framework fostered a perception of legality that headed off calls for comprehensive legislation governing intelligence. The Ford administration’s actions protected NSA from meaningful regulation, preserved the growth of electronic surveillance, and sustained executive branch preeminence in national security affairs. The episode proved formative for the Ford administration officials involved—including Dick Cheney, Donald Rumsfeld, and Antonin Scalia—and solidified the central role of executive branch lawyers in national security policymaking.
For helpful feedback, the author thanks Salem Elzway, Alice Friend, Richard John, Matt Jones, Ira Katznelson, Jeremy Kessler, Micah McElroy, Margaret Puskar-Pasewicz, Celia Roady, Eliza Roady, Anders Stephanson, Michael Sulmeyer, John Wertheimer, and the editors and anonymous reviewers for the Journal of Policy History. The author also thanks the archivists at the Gerald R. Ford Presidential Library for their support. The views expressed in this article are those of the author and do not reflect the official policy or position of the Defense Department or the U.S. government.
1. Scalia speech, “International Conference on the Administration of Justice and National Security in Democracies,” Ottawa, Canada, 12 June 2007, quoted in Savage, Charlie, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York, 2007), 30Google Scholar.
2. Letter from Rod (Hills) to Phil (Buchen), 29 April 1975, Edward Schmults Files, Box 11 (Counsel’s Office-Admin.) (1), Gerald R. Ford Presidential Library (hereafter “Ford Library”), cited in James Michael Strine, “The Office of Legal Counsel: Legal Professionals in a Political System,” Ph.D. diss. (The Johns Hopkins University, 1992), 81. On Scalia’s value to the Ford White House, see also Murphy, Bruce Allen, Scalia: A Court of One (New York, 2014), 70–78Google Scholar.
3. Savage, Takeover, 30.
4. Memorandum of Conversation, Kissinger, Schlesinger, Colby, Philip Areeda, Laurence Silberman, Martin Hoffman, “Investigation of Allegations of Domestic CIA Activities,” 20 February 1975, Ford Library, http://www.fordlibrarymuseum.gov/library/document/0314/1552958.pdf.
5. Alan Westin articulated many of these concerns in his groundbreaking 1967 book, Privacy and Freedom (New York, 1967).
6. “Year of Intelligence,” New York Times, 8 February 1975, https://www.nytimes.com/1975/02/08/archives/year-of-intelligence.html.
7. Such a reevaluation began in the years during and after the George W. Bush presidency, when keen observers and both critics and admirers of Cheney, Rumsfeld, and Scalia noted that their service in the Ford administration was a formative experience. This article not only adds to the case for reassessing the Ford administration based on the experiences of these influential historical actors but also goes beyond the existing literature by arguing that the actual steps that these officials took were consequential at the time and had lasting impact. On service in the Ford administration as a formative experience, see, for example, Prados, John, The Family Jewels: The CIA, Secrecy, and Presidential Power (Austin, 2013)Google Scholar, chap. 2 and 277–79; Savage, Takeover, chap. 2; Hayes, Stephen F., Cheney: The Untold Story of America’s Most Powerful and Controversial Vice President (New York, 2007), 82–90Google Scholar; Dubose, Lou, Vice: Dick Cheney and the Hijacking of the American Presidency (New York, 2006)Google Scholar, chap. 2; Scott Shane, “Recent Flexing of Presidential Powers Had Personal Roots in Ford White House,” New York Times, 30 December 2006, https://www.nytimes.com/2006/12/30/washington/30roots.html; Adam Liptak, “Cheney’s To-Do Lists, Then and Now,” New York Times, 11 February 2007, https://www.nytimes.com/2007/02/11/weekinreview/11liptak.html; and, most recently, Adam McKay’s film about Cheney, Vice.
8. James Bamford and Thomas Johnson provide the best accounts of how the crisis unfolded for NSA, but they do not explore the Ford administration’s maneuvering in detail. See Bamford, James, The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organization (New York, 1982)Google Scholar, chaps. 7 and 10; and Thomas R. Johnson, United States Cryptologic History, Series VI: The NSA Period, 1952–Present, Volume 5, American Cryptology during the Cold War, 1945–1989: Book III: Retrenchment and Reform, 1972–1980 (Fort Meade, MD, 1998), 83–116, https://nsarchive2.gwu.edu/NSAEBB/NSAEBB260/, hereafter “Johnson, AC, Book #, page #.” Like Johnson’s partially declassified American Cryptology during the Cold War, some of the most useful pieces dealing with the NSA aspects of the story were published inside the intelligence community and have not received sufficient attention. See James G. Hudec, “Unlucky SHAMROCK—The View from the Other Side,” Studies in Intelligence 10 (Winter–Spring 2001): 85–94, https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/vol44no5/html/v44i5a12p.htm and L. Britt Snider, “Unlucky SHAMROCK: Recollections of the Church Committee’s Investigation of NSA,” Studies in Intelligence (Winter 1999–2000), https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/winter99-00/art4.html. Loch Johnson, a political scientist who served on the staff of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (better known as the Church Committee), provides insight into how the Church Committee handled the NSA aspects of its investigation in his valuable memoir, Johnson, Loch K., A Season of Inquiry: The Senate Intelligence Investigation (Lexington, KY, 1985)Google Scholar. John Prados took an important preliminary step toward filling in details of the Ford administration’s handling of the NSA aspects of the Year of Intelligence in Prados, Family Jewels, 22–34, 82–98, and 277–79.
9. The literature on the Year of Intelligence largely mirrors this trend. See, for example, Durbin, Brent, The CIA and the Politics of US Intelligence Reform (New York, 2017)CrossRefGoogle Scholar, chap. 6; Jeffreys-Jones, Rhodri, The CIA and American Democracy (New Haven, 1989)Google Scholar, chap. 11; Olmsted, Kathryn S., Challenging the Secret Government: The Post-Watergate Investigations of the CIA and FBI (Chapel Hill, 1996)Google Scholar; Ranelagh, John, The Agency: The Rise and Decline of the CIA from Wild Bill Donovan to William Casey (New York, 1986)Google Scholar, chaps. 16–17; Theoharis, Athan, Spying on Americans: Political Surveillance from Hoover to the Huston Plan (Philadelphia, 1978)Google Scholar; and Theoharis, Athan, Abuse of Power: How Cold War Surveillance and Secrecy Policy Shaped the Response to 9/11 (Philadelphia, 2011)Google Scholar.
10. Thomas Johnson’s American Cryptology during the Cold War takes important steps in this direction, but the insider, granular detail of NSA’s development that makes it so valuable also limits—along with its only partial declassification—its big-picture contributions.
11. Keith E. Whittington and Daniel P. Carpenter, “Executive Power in American Institutional Development,” Perspectives on Politics 1, no. 3 (September 2003): 495–513. For an overview of the state of the literature on presidential use of executive orders, see Mayer, Kenneth R., With the Stroke of a Pen: Executive Orders and Presidential Power (Princeton, 2001), 11–16Google Scholar.
12. In addition to Loch Johnson, A Season of Inquiry, accounts written by Church Committee staffers include Snider, “Unlucky SHAMROCK”; Theoharis, Spying on Americans and Abuse of Power; and Schwarz, Fredrick A. O. Jr., Democracy in the Dark: The Seduction of Government Secrecy (New York, 2015)Google Scholar.
13. Limited but valuable accounts written by executive-branch officials include the pieces by Michael Raoul-Duval and James Wilderotter in Bernard J. Firestone and Alexej Ugrinsky, Gerald R. Ford and the Politics of Post-Watergate America, vol. 2 (Westport, CT, 1993), 492–96, and Timothy S. Hardy, “Intelligence Reform in the Mid-1970s,” Studies in Intelligence 20, no. 2 (Summer 1976): 1–15, https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/vol20no2/html/v20i2a01p_0001.htm. Like some of the best available information on the NSA aspects of the story, Hardy’s important contribution to the executive branch story appeared in an internal intelligence community publication and has been overlooked.
14. See, for example, Johnson, Season of Inquiry, generally, and on NSA, 78–79, 91–96, 98, 104–14; Olmsted, Challenging the Secret Government, generally, and on NSA, 104–5; and Smist, Frank J. Jr., Congress Oversees the United States Intelligence Community, 2nd ed. 1947–1994 (Knoxville, 1994)Google Scholar, generally, and on NSA, 63–64, 74–75. Theoharis’s deep work in FBI’s files and integration of that information with material from the congressional investigations shows how a more complete picture can be assembled. See Theoharis, Abuse of Power.
15. This is true even of Olmsted’s otherwise exemplary work on the Year of Intelligence. Although Olmsted also argues that historians have underestimated the Ford administration’s handling of the Year of Intelligence, her work overlooks the executive actions examined in this article and as a result concludes that little came of the Year of Intelligence. See Olmsted, Challenging the Secret Government, and Kathryn S. Olmsted “Reclaiming Executive Power: The Ford Administration’s Response to the Intelligence Investigations,” Presidential Studies Quarterly 26, no. 3 (Summer 1996): 725–37. Surveys of the Ford administration treat the Year of Intelligence in passing, if at all, and do not give the administration much credit. See, for example, Greene, John Robert, The Presidency of Gerald R. Ford (Lawrence, KS, 1995)CrossRefGoogle Scholar; Mieczkowski, Yanek, Gerald Ford and the Challenges of the 1970s (Lexington, KY, 2005)CrossRefGoogle Scholar; Brinkley, Douglas, Gerald R. Ford (New York, 2007)Google Scholar; and Crain, Andrew Downer, The Ford Presidency: A History (Jefferson, NC, 2009)Google Scholar. A recent effort to show the Ford administration’s influence on intelligence is Trenta, Luca, “‘An act of insanity and national humiliation’: The Ford Administration, Congressional Inquiries and the Ban on Assassination,” Journal of Intelligence History 17, no. 2 (2018)CrossRefGoogle Scholar: 121–40.
16. On the Remote Archive Capture Program, see https://www.fordlibrarymuseum.gov/library/guides/findingaid/fordlibrac.asp.
17. Tom Bowman and Scott Shane, “NSA Insistence on Secrecy Taken to Extreme Lengths: Memoir of Agency Retiree Stripped by Its Censors,” Baltimore Sun, 12 December 1995, http://articles.baltimoresun.com/1995-12-12/news/1995346002_1_cryptographer-puzzle-palace-nsa-officials.
18. Snider, “Unlucky SHAMROCK.”
19. For a definition of signals intelligence, see p. 214 of DOD Dictionary of Military and Associated Terms, as of January 2019, https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/dictionary.pdf?ver=2019-01-30-082945-953.
20. Bamford, Puzzle Palace, 356–59.
21. Johnson, AC, Book II, 352–57. See also Foreign Relations of the United States, 1917–1972, vol. 38, pt. 2, Organization and Management of Foreign Policy: Public Diplomacy, 1973–1976, ed. M. Todd Bennett and Alexander R. Wieland (Washington, DC, 2014), Document 40, https://history.state.gov/historicaldocuments/frus1969-76v38p2/d40 and Document 61, https://history.state.gov/historicaldocuments/frus1969-76v38p2/d61.
22. On the evolution of NSA’s use of computers, see Burke, Colin B., It Wasn’t All Magic: The Early Struggle to Automate Cryptanalysis, 1930s–1960s (Fort Meade, MD, 2002)Google Scholar, https://fas.org/irp/nsa/automate.pdf. See also Samuel S. Snyder, “History of NSA General-Purpose Electronic Digital Computers,” Department of Defense (1964): 2, https://www.governmentattic.org/3docs/NSA-HGPEDC_1964.pdf ; Samuel S. Snyder, “Computer Advances Pioneered by Cryptologic Organizations,” Annals of the History of Computing 2, no. 1 (January–March 1980): 60-70; and Bamford, James, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency (New York, 2002), 579Google Scholar. On NSA’s efforts to “mechanize,” see Johnson, AC, Book II, 361–70 and Johnson, AC, Book III, 151–54.
23. Johnson, AC, Book III, 94, 99.
24. See, for example, Memorandum for Assistant Comptroller, Requirements and Evaluation, “The CIA/NSA Relationship,” 20 August 1976, National Security Agency: Organization and Operations, 1945–2009, Digital National Security Archive (DNSA), cited in Budiansky, Stephen, Code Warriors: NSA’s Codebreakers and the Secret Intelligence War against the Soviet Union (New York, 2016)Google Scholar, 284–86.
25. The data come from A National Survey of the Public’s Attitudes Toward Computers (New York, 1971), cited in Sarah E. Igo, “The Beginnings of the End of Privacy,” The Hedgehog Review 17, no. 1 (Spring 2015), https://iasc-culture.org/THR/THR_article_2015_Spring_Igo.php.
26. See, for example, United States v. United States District Court 407 U.S. 297-344 (1972), better known as the Keith case, and U.S. Congress, Senate, Warrantless Wiretapping and Electronic Surveillance: Hearings Before the Subcommittee on Administrative Practice and Procedure and the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and the Subcommittee on Surveillance of the Senate Committee on Foreign Relations, 93rd Cong., 3, 8 April 1974 and 8, 9, 10, and 23 May 1974.
27. Bamford, Puzzle Palace, 382.
28. Memorandum for the Secretary of State and the Secretary of Defense, “Communications Intelligence Activities,” 24 October 1952, RAC Box 33, James Wilderotter Files, Ford Library.
29. Johnson, AC, Book I, 272–74.
30. Johnson, AC, Book II, 474, and Hudec, “Unlucky SHAMROCK: The View from the Other Side.”
31. The original NSCID governing NSA, No. 9, stressed the “special nature” of NSA’s mission. See National Security Council Intelligence Directive No. 9 Revised, “Communications Intelligence, 29 December 1952, https://history.state.gov/historicaldocuments/frus1950-55Intel/d257. The NSCID governing NSA during the mid-1970s was No. 6, which toned down the language a bit but still gave NSA wide latitude. See National Security Council Intelligence Directive No. 6, “Signals Intelligence,” 17 February 1972, https://www.nsa.gov/Portals/70/documents/news-features/declassified-documents/nsa-60th-timeline/1970s/19720217_1970_Doc_3984040_NSCID6.pdf. See also Bamford, Puzzle Palace, 389–90.
32. Hudec, “Unlucky SHAMROCK: The View from the Other Side.”
33. Memorandum of Conversation, Kissinger, Schlesinger, Colby, Philip Areeda, Laurence Silberman, Martin Hoffman, “Investigation of Allegations of Domestic CIA Activities,” 20 February 1975, Ford Library, http://www.fordlibrarymuseum.gov/library/document/0314/1552958.pdf .
34. Seymour M. Hersh, “Huge C.I.A. Operation Reported in U.S. Against Antiwar Forces, Other Dissidents in Nixon Years,” New York Times, 22 December 1974, https://www.nytimes.com/1974/12/22/archives/huge-cia-operation-reported-in-u-s-against-antiwar-forces-other.html.
35. Telephone conversation between Donald Rumsfeld and Henry Kissinger, 9:35 a.m., 23 December 1974, Kissinger Conversations: Supplement II, 1969–77, DNSA and Memorandum from Donald Rumsfeld to Henry A. Kissinger, “Kissinger/Rumsfeld telephone conversation, 7:30 a.m., 23 December 1974, on CIA matter,” 24 December 1974, Cheney Files, Box 6, Intelligence Subseries (Colby Report), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0005/1561477.pdf.
36. On the reorganization of the White House staff and Rumsfeld’s and Cheney’s ascents within it, see Whipple, Chris, The Gatekeepers: How the White House Chiefs of Staff Define Every Presidency (New York, 2017), 47–75Google Scholar.
37. Memorandum from Donald Rumsfeld to Henry A. Kissinger, “Kissinger/Rumsfeld telephone conversation, 7:30 a.m., 23 December 1974, on CIA matter,” 24 December 1974, Cheney Files Box 6, Intelligence Subseries (Colby Report), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0005/1561477.pdf.
38. Nessen, Ron, Making the News, Taking the News (Middletown, CT, 2011), 139Google Scholar.
39. Memorandum from Jack Marsh to the President, 24 December 1974, Cheney Files, Box 7 (Intelligence, Rockefeller Commission, General), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0005/1561493.pdf.
40. Telephone conversation between William Colby and Henry Kissinger, 9:55 a.m., 24 December 1974, Kissinger Conversations Supp. II, 1969–77, DNSA.
41. Telephone conversation between Donald Rumsfeld and Henry Kissinger, 6:25 p.m., 24 December 1974, Kissinger Conversations: Supp. II, 1969–77, DNSA.
42. Ibid.
43. See President’s Daily Diary Collection, Box 73 (27 December 1974), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0036/pdd741227.pdf.
44. Cheney handwritten notes, 27 December 1974, Cheney Files Box 6, Intelligence Subseries (Colby Report), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0005/1561477.pdf. Cheney’s notes begin at p. 14 of the PDF.
45. Ibid.
46. Ibid. Prados also points to the importance of these Cheney notes. See Prados, Family Jewels, 29.
47. Gerald R. Ford, Executive Order 11828—Establishing a Commission on CIA Activities Within the United States, Online by Gerhard Peters and John T. Woolley, The American Presidency Project, https://www.presidency.ucsb.edu/node/268730.
48. For a detailed study of the Rockefeller Commission, see Kenneth Kitts, “Commission Politics and National Security: Gerald Ford's Response to the CIA Controversy of 1975,” Presidential Studies Quarterly 26, no. 4: 1081–98.
49. David E. Rosenbaum, “C.I.A.-F.B.I. Inquiry Voted by Senate,” New York Times, 27 January 2975, https://www.nytimes.com/1975/01/28/archives/ciafbi-inquiry-voted-by-senate-church-is-expected-to-be-named.html.
50. Bennett and Wieland, Foreign Relations of the United States, 1917–1972, vol. 38, pt. 2, Organization and Management of Foreign Policy; Public Diplomacy, 1973–76, Document 32, https://history.state.gov/historicaldocuments/frus1969-76v38p2/d32.
51. Ibid.
52. Ibid., and Memorandum of Conversation, Kissinger, Schlesinger, 8 February 1975, Ford Library, https://www.fordlibrarymuseum.gov/library/document/0314/1552950.pdf.
53. Memorandum of Conversation, Kissinger, Schlesinger, Colby, Philip Areeda, Laurence Silberman, Martin Hoffman, “Investigation of Allegations of Domestic CIA Activities,” 20 February 1975, Ford Library, http://www.fordlibrarymuseum.gov/library/document/0314/1552958.pdf.
54. Ibid.
55. Memorandum of Conversation, Ford, Kissinger, Rumsfeld, Marsh, 21 February 1975, Ford Library, https://www.fordlibrarymuseum.gov/library/document/0314/1552960.pdf.
56. For comments praising Silberman’s handling of the initial phase of the crisis, see telephone conversation between Donald Rumsfeld and Henry Kissinger, 6:25 p.m., 24 December 1974, Kissinger Conversations Supp. II, 1969–77, DNSA.
57. On Silberman turning down the opportunity to manage the White House’s response to the intelligence crisis, see telephone conversation between William Walker and Henry Kissinger, 2:25 p.m., 26 February 1975, Kissinger Conversations: Supp. II, 1969–77, DNSA. For Silberman’s recommendation of Wilderotter, see Memorandum of Conversation, Ford, Kissinger, Rumsfeld, Marsh, 21 February 1975, Ford Library, https://www.fordlibrarymuseum.gov/library/document/0314/1552960.pdf.
58. Memorandum of Conversation, Ford, Kissinger, Senators Frank Church and John Tower, “Congressional Investigation of CIA,” 5 March 1975, Ford Library, https://www.fordlibrarymuseum.gov/library/document/0314/1552979.pdf.
59. Memorandum of Conversation, Ford, Schlesinger, 28 March 1975, Ford Library, https://www.fordlibrarymuseum.gov/library/document/0314/1553011.pdf. Prados emphasizes Buchen’s influential role. See Prados, Family Jewels, 277–78.
60. Memorandum of Conversation, Ford, Schlesinger, Rumsfeld, Marsh, Buchen, “Congressional Investigation of CIA,” 28 March 1975, Ford Library, https://www.fordlibrarymuseum.gov/library/document/0314/1553011.pdf.
61. Note-Taking from 40 Committee Records of Action and Minutes, n.d. [1975], Loen and Leppert Files, Box 14 (Intelligence—House Select Committee: Handling and Release of Classified Documents), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0014/1075839.pdf.
62. For examples of how this process worked, see Memorandum from Philip Buchen to the President, “Request of Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities for Information,” Cheney Files, Box 7 (Intelligence—Release of Documents to the Church Committee (1), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0005/1561490.pdf. See pp. 4–62 of the PDF. These documents also contain Cheney’s marginalia indicating documents he did not believe should be released. See also the memos written by Wilderotter, in Cheney Files, Box 6 (Intelligence—Congressional Investigations) (1), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0005/1561480.pdf.
63. For examples of the challenges and frustrations this caused the Church Committee, see Smist, Congress Oversees the United States Intelligence Community, 55–56.
64. On the national security establishment and executive branch’s secrecy advantages, see Moynihan, Daniel Patrick, Secrecy: The American Experience (New Haven, 1998)Google Scholar, and David Pozen, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” Harvard Law Review 127 (2013): 512–635. On the concept of bureaucratic autonomy, see Carpenter, Daniel P., The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton, 2001)Google Scholar. The national security establishment provides a case where reputation building may be less important than control over information.
65. Cheney handwritten notes, 27 December 1974, Cheney Files Box 6, Intelligence Subseries (Colby Report), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0005/1561477.pdf.
66. Memorandum from Philip W. Buchen to Richard Cheney, 27 March 1975, RAC Box 35, Philip Buchen Intelligence Series (9), Ford Library.
67. This dispute comes through in versions dated 21 July 1975 and 22 July 1975, both of which are in James Connor Files, Box 58 (Rockefeller Commission Recommendations and Implementation) (1), Ford Library.
68. For examples of this prodding, see Memorandum from Don Rumsfeld to Jim Cannon, 30 June 1975, James Connor Files, Box 58 (Rockefeller Commission Recommendations and Implementation) (1), Ford Library; Memorandum from Don Rumsfeld to Brent Scowcroft and Jim Cannon, 8 July 1975, James Connor Files, Box 58 (Rockefeller Commission Recommendations and Implementation) (1), Ford Library; and Memorandum from Dick Cheney to Jim Connor, Rod Hills, and Brent Scowcroft, 12 July 1975, James Connor Files, Box 58 (Rockefeller Commission Recommendations and Implementation) (1), Ford Library.
69. For a play-by-play of the Church Committee investigation of NSA, see Snider, “Unlucky SHAMROCK,” and Hudec, “Unlucky SHAMROCK—The View from the Other Side.”
70. Johnson, AC, Book III, 83–84.
71. Ibid., 93.
72. Ibid.
73. For concise synopses of Minaret from within NSA, see Johnson, AC, Book III, 84–86, and David A. Hatch, “Cryptologic Almanac 50th Anniversary Series: The Time of Investigations, Part 1 of 2,” National Security Agency, September–October 2002, http://documents.theblackvault.com/documents/nsa/cryptoalmanac/time_of_investigations_part_1.pdf . See also Budiansky, Code Warriors, 289–91. On the role of bulk collection in Minaret, see Johnson, AC, Book III, 94. On the role of computers, see Johnson, Season of Inquiry, 94.
74. Johnson, AC, Book III, 86.
75. See A National Survey of the Public’s Attitudes Toward Computers (New York, 1971), cited in Igo, “The Beginnings of the End of Privacy.”
76. Frank Van Riper, “Find U.S. Agents Spy on Embassies’ Cables,” New York Daily News, 22 July 1975, 2.
77. Nicholas M. Horrock, “National Security Agency Reported Eavesdropping on Most Private Cables,” New York Times, 31 August 1975, https://www.nytimes.com/1975/08/31/archives/national-security-agency-reported-eavesdropping-on-most-private.html, and Russell Watson with Evert Clark and Anthony Marro, “No Place to Hide,” Newsweek, 8 September 1975.
78. See Prados, Family Jewels, 89–91, 346n32; Johnson, AC, Book III, 93; Snider, “Unlucky SHAMROCK, and Hudec, “Unlucky SHAMROCK—The View from the Other Side.”
79. Snider, “Unlucky SHAMROCK.”
80. Ibid.
81. See, for example, Nicholas M. Horrock, “N.S.A. Says It Is Not Eavesdropping,” New York Times, 9 August 1975, https://www.nytimes.com/1975/08/09/archives/nsa-says-it-is-not-eavesdropping.html and, on NSA Director Lew Allen’s meeting with Rep. Bella Abzug (D-NY) prior to one of her hearings, see Allen to Abzug, 23 October 1975, https://www.nsa.gov/Portals/70/documents/news-features/declassified-documents/nsa-60th-timeline/1970s/19751000_1970_Doc_FordLibrary_Shamrock.pdf.
82. President’s Daily Diary Collection, Box 78 (7 October 1975), Ford Library, http://www.fordlibrarymuseum.gov/library/document/0036/pdd751007.pdf, and Memorandum from Jack Marsh to the President, “Church Committee Hearings Concerning NSA,” 7 October 1975, John Marsh Files, Box 87 (President) (9/75–12/75), Ford Library. On Levi’s appearance before the Church Committee, see Johnson, Season of Inquiry, 93–94.
83. See, for example, the transcript of the Abzug hearings: U.S. Congress, House, Interception of Nonverbal Communications by Federal Intelligence Agencies: Hearings Before a Subcommittee of the Committee on Government Operations, 94th. Cong., 1st and 2nd sess., 23 October 1975, 25 February, 3, 10, and 11 March 1976, 18, hereafter “Abzug hearings.”
84. Statement of Rex E. Lee, Assistant Attorney General, Civil Division, before the House Select Committee on Intelligence, 12 September 1975, Loen and Leppert Files, Box 15 (Intelligence, House Select Committee: Handling and Release of Classified Documents), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0014/1075839.pdf. Lee’s testimony begins on p. 18 of the PDF.
85. McFarlane to Scowcroft, 21 September 1975, RAC 41, National Security Adviser, NSC Information Liaison with Commissions and Committees (11), Ford Library.
86. Memorandum from the President to the Secretary of State; Secretary of Defense; Director, Office of Management and Budget; Director, Central Intelligence Agency; Philip W. Buchen; and John O. Marsh Jr., 19 September 1975, James Connor Files, Box 57 (Intelligence Coordinating Group, General), Ford Library.
87. Ibid.
88. Memorandum from Jack Marsh to the President, “NSA Open Hearings,” 27 October 1975, Presidential Handwriting File, Box 31 (National Security, Intelligence) (7), Ford Library. On the need to preserve private-sector partnerships, see Memorandum from John Matheny to General Scowcroft, “9:00 a.m. Marsh Group Meeting, October 10, 1975,” 10 October 1975, RAC Box 41, National Security Adviser, NSC Information Liaison with Commissions and Committees (10), Ford Library.
89. Johnson, Season of Inquiry, 108, 111.
90. See US Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, The National Security Agency and Fourth Amendment Rights: Hearings before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong., 1st sess., 29 October and 6 November 1975, 38, https://www.intelligence.senate.gov/sites/default/files/94intelligence_activities_V.pdf, hereafter “Church Committee NSA hearings.”
91. Church Committee NSA hearings, 1–55.
92. Ibid., 38.
93. Ibid., 38–39.
94. Ibid., 38.
95. Ibid., 27.
96. For a summary of the evolution of the law on warrantless electronic surveillance, see Memorandum RE: Zweibon v. Mitchell, D.C. Cir. No. 73-1847, June 23, 1975, James Connor Files, Box 56 (Electronic Surveillance), Ford Library.
97. United States v. United States District Court 407 U.S. 297-344 (1972).
98. Memorandum for the Attorney General, “Use of Warrantless Trespassory Microphones in Foreign Intelligence Matters,” 17 September 1974, RAC Box 36, Philip Buchen Files (Intelligence Series) (16), Ford Library.
99. Statement of Attorney General William B. Saxbe on National Security Electronic Surveillance and S. 2820 before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary, United States Senate, 2 October 1974, CIA CREST RDP77M00144R000800110057-3, https://www.cia.gov/library/readingroom/docs/CIA-RDP77M00144R000800110057-3.pdf.
100. Memorandum from Phil Buchen to the President, “Warrantless Electronic Surveillance,” 12 January 1976, Presidential Handwriting File, Box 31 (National Security, Intelligence) (10), Ford Library. The original December 1974 memo to Attorney General Saxbe is an attachment. For more background on Ford’s December 1974 delegation of authority to conduct warrantless electronic surveillance, see TAB C of Memorandum from Philip W. Buchen to the President, “Assertion of Executive Privilege by You and Authorization to Bring Action to Stop Enforcement of Subpoena Issued to the American Telephone and Telegraph (AT&T) Company,” 21 July 1976, RAC Box 36, Philip Buchen Files (Intelligence Series) (16), Ford Library.
101. See Johnson, AC, Book III, 93, 106.
102. Memorandum from Allen to Schlesinger, “Approval of Operations to Collect Foreign Wire Communications and Electronic Emanations,” 4 October 1975, RAC Box 33, Philip Buchen Files (Codeword), Ford Library. See also Johnson, AC, Book III, 106. On Levi’s efforts to reform the FBI with particular emphasis on the bureau’s involvement in warrantless electronic surveillance, see Weiner, Tim, Enemies: A History of the FBI (New York, 2012), 338Google Scholar.
103. Memorandum from McFarlane to Kissinger, “Meeting with the President Concerning Congressional Investigation of the Intelligence Community,” 13 October 1975, RAC Box 27, Robert McFarlane Files (3), Ford Library.
104. Memorandum from Scowcroft to Kissinger, 19 April 1975, RAC Box 51, National Security Advisor, Scowcroft Daily Work Files (10), Ford Library.
105. Letter from Attorney General Edward Levi to the President, 25 June 1975, James Connor Files, Box 56 (Electronic Surveillance), Ford Library and Memorandum RE: Zweibon v. Mitchell, D.C. Cir. No. 73-1847, 23 June 1975, James Connor Files, Box 56 (Electronic Surveillance), Ford Library.
106. See, for example, Abzug hearings, 11, 64, 282, 287.
107. The first law school course on “national security law” appeared in 1974. See Baker, James E., “Process, Practice, and Principle: Teaching National Security Law and the Knowledge That Matters Most,” Georgetown Journal of Legal Ethics 27 (2014): 165Google Scholar.
108. Hudec, “Unlucky SHAMROCK—The View from the Other Side.”
109. Ibid.
110. See Memorandum for the Honorable Philip W. Buchen, Counsel to the President, Re: Claim of Executive Privilege with respect to materials subpoenaed by the Committee on Government Operations, House of Representatives, Presidential Handwriting File, Box 31 (National Security, Intelligence) (13), Ford Library.
111. “Executive Order 11905: United States Foreign Intelligence Activities, February 18, 1976,” http://www.fordlibrarymuseum.gov/library/speeches/760110e.asp.
112. For an example of the standard, largely dismissive interpretation of the order, see Andrew, Christopher, For the President’s Eyes Only: Secret Intelligence and the American Presidency from Washington to Bush (New York, 1995), 419Google Scholar. Luca Trenta’s article on assassination policy argues that the impact of the Ford administration’s executive order has been understated but does not examine the order in detail. See Trenta, “‘An act of insanity and national humiliation,’” 121–40. One work that does examine Executive Order 11905 in detail is Oseth, John M., Regulating U.S. Intelligence Operations: A Study in Definition of the National Interest (Lexington, KY, 1985), 91–102Google Scholar. However, Oseth’s valuable study does not explore the order’s implementation within the intelligence community.
113. Executive Order 11905.
114. On the tone of the order, see Oseth, Regulating U.S. Intelligence Operations, 91–92.
115. On Congress’s failure to pass broad intelligence legislation, see Oseth, Regulating U.S. Intelligence Operations, 122–48; Smist, Congress Oversees the United States Intelligence Community, 124–26; Olmsted, Challenging the Secret Government, 185–86; and Theoharis, Abuse of Power, 144–47. On Congress’s failure to legislate a charter for NSA specifically, see Johnson, AC, Book III, 108–9.
116. See, for example, the Carter (Executive Order 12036) and Reagan (Executive Order 12333) administration intelligence executive orders.
117. Memorandum from S. D. Breckinridge to [redacted] SC/DCI, “Comments on 10 December Draft of ‘Analysis of Issues,’” 12 December 1975, RAC Box 39, Duval Files (Intelligence Series) (6), Ford Library.
118. Memorandum from Jack Marsh to Mike Duval, 22 December 1975, John Marsh Files, Box 89 (White House Memoranda, Raoul-Duval, Michael) (2), Ford Library.
119. See Firestone and Ugrinsky, Gerald R. Ford and the Politics of Post-Watergate America, 496.
120. Executive Order 11905. Oseth also notes the importance of the order’s focus on “legality.” See Oseth, Regulating U.S. Intelligence Operations, 95–96.
121. David A. Hatch, “Cryptologic Almanac 50th Anniversary Series: The Time of Investigations, Part 2 of 2,” National Security Agency, September–October 2002, http://documents.theblackvault.com/documents/nsa/cryptoalmanac/time_of_investigations_part_2.pdf. See also Johnson, AC, Book III, 105–7.
122. Memorandum from Robert A. Rosenberg to William G. Hyland, “DEPSECDEF/DCI Debate over CFI Activities,” 3 September 1976, RAC Box 55, Documents from National Security Adviser Scowcroft Daily Work Files (Codeword) (5), Ford Library.
123. See, for example, Memorandum from Samuel M. Hoskinson and Robert A. Rosenberg to William G. Hyland, “CIA/NSA SIGINT Transfer,” 10 November 1976, RAC Box 55, Documents from National Security Adviser Scowcroft Daily Work Files (Codeword) (5), Ford Library.
124. Memorandum of Conversation, Ford, Kissinger, Schlesinger, Levi, Lynn, Colby, Buchen, Marsh, Raoul-Duval, Rumsfeld, 13 October 1975, Ford Library, http://www.fordlibrarymuseum.gov/library/document/0314/1553270.pdf.
125. Memorandum from Philip Buchen to the President, “Intelligence Legislation Proposed by the Justice Department,” 13 February 1976, Presidential Handwriting File, Box 31 (National Security, Intelligence) (9), Ford Library.
126. On the use of a legislative proposal to narrow Congress’s room for maneuver, see Whittington and Carpenter, 501–2.
127. Memorandum of Conversation, Ford, Kissinger, Schlesinger, Levi, Lynn, Colby, Buchen, Marsh, Raoul-Duval, Rumsfeld, 13 October 1975, Ford Library, http://www.fordlibrarymuseum.gov/library/document/0314/1553270.pdf.
128. Memorandum from Robert S. Ingersoll to the President, “Attorney General Levi’s Proposed Bill on Electronic Surveillance,” 16 March 1976, attachment to Memorandum from James E. Connor to Philip Buchen and Jack Marsh, “Proposed Electronic Surveillance Legislation,” 17 March 1976, Presidential Handwriting File, Box 31 (National Security, Intelligence) (14–15), Ford Library. See also Memorandum from Jack Marsh to the President, “Proposed Legislation on Electronic Surveillance,” 16 March 1976, Presidential Handwriting File, Box 31 (National Security, Intelligence) (14–15), Ford Library and Memorandum from Brent Scowcroft to the President, “Legislation on Electronic Surveillance,” 16 March 1976, Presidential Handwriting File, Box 31 (National Security, Intelligence) (14–15), Ford Library.
129. See then-White House Chief of Staff Donald Rumsfeld’s comments in Memorandum of Conversation, Ford, Kissinger, Schlesinger, Levi, Lynn, Colby, Buchen, Marsh, Raoul-Duval, Rumsfeld, 13 October 1975, Ford Library, http://www.fordlibrarymuseum.gov/library/document/0314/1553270.pdf.
130. Memorandum from Philip Buchen to the President, “Intelligence Legislation Proposed by the Justice Department,” 13 February 1976, Presidential Handwriting File, Box 31 (National Security, Intelligence) (9), Ford Library.
131. Read Ahead from Jack Marsh for the President, “Meeting with Congressional Leaders on Electronic Surveillance Legislation,” 22 March 1976, Duval Papers, Box 11 (Meeting with POTUS and Congressional Leaders on Electronic Surveillance), Ford Library.
132. Ibid.
133. For examples of Ford administration participation in drafting FISA, see pp. 3–4 of the attachment to Memorandum from Bill Funk to William Hyland, 27 August 1976, John Matheny Files, Box 1 (FISA) (2), Ford Library. See also Memorandum from Antonin Scalia to Participants in 7/30 Meeting on S.3197 [FISA], 30 July 1976, Loen and Leppert Files, Box 13 (Intelligence, General), Ford Library. For a discussion of how the final version of FISA came to be and the differences between that bill and the language the Ford administration proposed, see Oseth, Regulating U.S. Intelligence Operations, 107–12. For a detailed, critical discussion of FISA, see Bamford, Puzzle Palace, chap. 10.
134. See Rozell, Mark J., “Executive Privilege in the Ford Administration: Prudence in the Exercise of Presidential Power,” Presidential Studies Quarterly 28, no. 2 (Spring 1998)Google Scholar: 294–95.
135. United States of America v. American Telephone and Telegraph Company et al., Appeal of John E. Moss, Member, United States House of Representatives, 551 F.2d 384 (1976).
136. Memorandum from Philip W. Buchen to The President, “Court of Appeals Decision in the AT&T Subpoena Case,” 3 January 197[7], Presidential Handwriting File, Box C54 (Presidential Handwriting, 1/3/1977) (1), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0047/phw19770103-10.pdf.
137. David Kris, “How the FISA Court Really Works,” Lawfare, 2 September 2018, https://www.lawfareblog.com/how-fisa-court-really-works.
138. NSC Meeting, Semiannual Review of the Intelligence Community, 13 January 1977, National Security Adviser’s NSC Meeting File, Box 2 (NSC Meeting 1/13/1977), Ford Library, https://www.fordlibrarymuseum.gov/library/document/0312/1552411.pdf.
139. For example, the internal NSA memo guiding implementation of FISA gave the NSA General Counsel responsibility for ensuring NSA’s compliance with FISA. The upshot was that the NSA’s Office of General Counsel, which prior to the mid-1970s had practically no role in operational matters, became a key player in NSA operations. See Memorandum from the Director to Distribution I, Plus Field Elements, “Foreign Intelligence Surveillance Act,” 3 November 1978, https://www.nsa.gov/Portals/70/documents/news-features/declassified-documents/nsa-60th-timeline/1970s/19781103_1970_Doc_3979000_Foreign.pdf.
140. See, for example, Schulman, Bruce, The Seventies: The Great Shift in American Culture, Society and Politics (Cambridge, Mass, 2002), 48Google Scholar, and Scott, Katherine A., Reining in the State: Civil Society and Congress in the Vietnam and Watergate Eras (Lawrence, KS, 2013)Google Scholar.
141. On “interregnum,” see Greenstein, Fred I., The Presidential Difference: Leadership Style from FDR to Barack Obama, 3rd ed. (Princeton, 2009), 112CrossRefGoogle Scholar.
142. Sen. Dianne Feinstein (D-CA) Statement on Intel Committee’s CIA Detention, Interrogation Report, 11 March 2014, https://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=DB84E844-01BB-4EB6-B318-31486374A895, and Mark Mazzetti and Jonathan Weisman, “Conflict Erupts in Public Rebuke on C.I.A. Inquiry,” New York Times, 11 March 2014, https://www.nytimes.com/2014/03/12/us/cia-accused-of-illegally-searching-computers-used-by-senate-committee.html.
143. Richard Immerman calls congressional intelligence oversight “episodic and superficial.” See , Immerman, The Hidden Hand: A Brief History of the CIA (West Sussex, 2014), 95Google Scholar. Loch Johnson reviews the many challenges congressional intelligence overseers have faced since the mid-1970s in , Johnson, “Congress and the American Experiment in Holding Intelligence Agencies Accountable,” Journal of Policy History 28, no. 3 (2016): 494–514CrossRefGoogle Scholar.
144. See Report on the President’s Surveillance Program, 10 July 2009, https://oig.justice.gov/reports/2015/PSP-09-18-15-full.pdf, and Memorandum for the Attorney General, Re: Lethal Operation Against Shaykh Anwar Aulaki, 19 February 2010, https://www.justice.gov/sites/default/files/olc/pages/attachments/2015/04/02/2010-02-19_-_olc_aaga_barron_-_al-aulaqi.pdf.
145. At the time, David Kahn, one of the best-informed reporters covering NSA, argued that NSA had become indispensable, and that while it needed a legislative basis to reduce the chance of abuses, its status as the nation’s “phantom ear” should not be ended. David Kahn, “Big Ear or Big Brother,” New York Times Magazine, 16 May 1976, https://www.nytimes.com/1976/05/16/archives/big-ear-or-big-brother-the-national-security-council-was-created-23.html.
