The Wars of Watergate (115 page)

The Rockefeller Commission, the Senate investigation headed by Senator Frank Church (D–ID), and the House inquiry chaired by Otis Pike (D–NY), highlighted the “black” side of CIA activities. But the image that most clearly emerged in the public eye was that of the CIA as a “rogue elephant,” in Howard Baker’s phrase, an agency that had operated without authorization or audit, either by Congress or the President. Baker’s characterization seemed innocent; yet to put all the blame on the Agency masked the reality that if neither Congress nor the President knew what the CIA was doing, it was because neither wanted to know.

The resulting uproar over the revelations led to two results. First, the CIA itself now had an excuse to institute an internal housecleaning. Both Colby and his successor, Admiral Stansfield Turner, forced the resignation and retirement of bureaucratic barons who had built great power bases of their own, often independent of the Director. Second, Congress developed a greater interest in oversight and established the institutional means to that end.

Hersh’s reports spurred Congress to pass the Hughes-Ryan Amendment at the end of 1975, requiring the President to approve and report all covert operations to Congress. Two years later the Senate formalized the procedure by establishing a standing committee for oversight of the intelligence agencies, and the House followed a year later. Executive orders by President Carter tightened the guidelines on domestic intelligence activities, including a requirement that the CIA obtain warrants from the Attorney General to carry on surveillance activities within the United States. In October 1978, Congress enacted the Foreign Intelligence Surveillance Law, which among other things required that the CIA obtain court orders to wiretap. Two years later, the Intelligence Oversight Act provided new requirements that the CIA report to Congress on its covert activities.

Executive orders are subject to new executive orders, however; relations between the CIA and the Attorney General are subject to the compatibility of their interests; and congressional oversight is dependent, first, on what information the CIA or the President chooses to provide, and second, on the extent of Congress’s own vigilance and interest. President Reagan’s Executive Order 12333 of December 4, 1981, substantially weakened Carter’s 1978 directives and restored a large measure of discretion to CIA activities. (That order also upset the Levi guidelines on the FBI and, in general, “unleashed” the intelligence agencies, as the President noted.) The Iran-Contra affair in 1986–87 demonstrated that the CIA and the Administration had acted without congressional consultation and hence lacked that degree of consent that might have provided some cover of legitimacy to what clearly was a dubious enterprise. The result was predictable; renewed demands to force full CIA disclosure of its activities were followed by expressions of concern that the CIA not be inhibited or compromised in its activities.

When FBI Director William H. Webster moved to head the CIA in March 1987, he remarked wistfully that the “post-Watergate period … included some very searching and at times devastating inquiries that affected not only us [the FBI] but the other components of the intelligence community.” Reagan’s CIA Director, William Casey, undoubtedly agreed, and when he proceeded to act on the premise that congressional oversight inquiries and their conclusions mattered not a whit, no one effectively challenged him. During his tenure, Casey readily secured presidential authorization for aggressive covert operations, and he consistently proved uncooperative with congressional oversight committees. Only the Iran-Contra fiasco and Casey’s death emboldened critics to demand more effective control—again.
¹⁸

The charges leveled against President Nixon’s misuse of executive agencies touched developing concerns for the right of privacy. Interest in the problem erupted in the 1960s, partly in response to a concern over the government’s
increasing surveillance of the civil rights movement and of opponents of the Vietnam war, and partly in recognition that sophisticated new technology—including computers and the establishment of centralized computer data banks—threatened freedom of private activities and information. In 1964 the House Government Operations Committee established a special subcommittee to probe the investigative activities of federal agencies. Later, the Fair Credit and Reporting Act (1970) attempted to restrict the gathering and use of credit information. In the early 1970s, several congressional committees pursued a variety of privacy issues.

President Nixon could not afford to leave the championing of the right of privacy to congressional Democrats, who seemed exclusively concerned. In his 1974 State of the Union message, Nixon warned that technology had encroached on the right of personal privacy, citing modern information systems, data banks, credit records, mailing-list abuses, and electronic snooping. The time had come, he told Congress, “for a major initiative to define the nature and extent of the basic rights of privacy and to erect new safeguards to ensure that those rights are respected.”

Congress readily responded, but a committee report grasped the irony inherent in its efforts when it credited the “additional impetus” from the “recent revelations connected with Watergate-related investigations, indictments, trials, and convictions.” That report cited the White House “enemies list,” the misuse of Daniel Ellsberg’s CIA profiles, the break-in of his psychiatrist’s offices, and the Administration’s widespread wiretapping activities. The result was the Privacy Act of 1974, passed four months after Nixon resigned. The new law permitted individuals to see information in their federal agency files and to correct or amend the information. Agencies were prohibited from making files available to other agencies without permission. They also could not maintain records describing a person’s exercise of First Amendment rights unless the action fell within the scope of official law-enforcement activities—a loophole that specifically exempted the FBI, the CIA, the Secret Service, and other agencies from the law.
¹⁹

Nowhere was the privacy issue more sensitive than with regard to tax information. Revelations that Nixon and his advisers had used IRS data sensationalized the White House’s war against its “enemies.” John Caulfield’s testimony to the Ervin Committee in 1973, and Nixon’s well-known searches for a politically pliable IRS Commissioner, made prophets of the Nixon Administration’s critics. The White House and the IRS legal staff had rationalized the President’s right to free access to information within the executive branch. Perhaps no other subject more alarmed Nixon’s adversaries, however; tax information offered enormous potential for harassing political opponents. Members of Congress ostensibly rose to the defense of the right to privacy, but undoubtedly concerns for their own interests lent a special urgency to their actions. Six weeks after taking office, President Ford
signed Executive Order 11805, establishing strict guidelines for presidential access to tax returns. Presidential requests in the future must be signed by the President, who must specify what returns were to be inspected, and by whom.

Congress apparently was not content to leave compliance entirely to presidential and IRS discretion. As part of the Tax Reform Act of 1976, it provided that presidential requests for information must specify the reason for any request and that the President must submit a quarterly report to the Joint Congressional Committee on Taxation, describing the returns requested and the reasons for seeking them. Two years later, Congress passed the Financial Privacy Act of 1978, a law designed to bar government agencies from gaining bank records without knowledge of the person under investigation, except in rare circumstances.
²⁰

In 1986, Attorney General Edwin Meese III proposed repeal of the Financial Privacy Act. On the surface, Meese’s proposal reflected the Reagan Administration’s general aversion to Watergate reforms. But his position probably reflected institutional as well as partisan concerns. Once out of office, Benjamin Civiletti, Carter’s last Attorney General, wasted little time in attacking the privacy reforms for unduly restricting the investigative functions of the Justice Department. Civiletti complained that the Justice Department was unable to examine tax records unless it could demonstrate that the records were relevant to some chain of evidence that might show illegality. He contended that the 1978 Finance Act similarly hampered criminal investigations, as financial institutions often would not cooperate, despite the department’s adherence to ordinary criminal procedures. Civiletti urged that the department have access to bank records and that notification to the individuals involved be delayed until after the relevant investigations.
²¹

It would have been naive to expect that Watergate-inspired reform legislation could end official abuses of power. Presidents Carter and Reagan differed dramatically in the freedom they extended to their intelligence agencies; their attitudes filtered down the chain of command through their Attorneys General, as well as FBI and CIA directors. Typically, Congress only reacted to events, rarely anticipating them, and its efforts at control were often inadequate, as in its failure to provide a legislative charter for the FBI.

The Iran–Contra affair, as well as periodic new revelations of FBI and CIA wrongdoing, reminded the nation that such activities did not end (just as they did not begin) with Watergate. The realization that government wrongdoing is not exceptional obviously heightens a diminution of the trust the public should accord the conduct of officials. Yet the Watergate era also tended to reinforce a healthy element in the nation’s constitutional tradition, which emphasized that no center of official power should be without some check external to itself, including the check of informed public opinion. The post-Watergate reforms to curb such behavior certainly have shortcomings
of their own; yet they provide legitimate weapons for questioning and punishing abuses of official power. The lack of will to use the laws, or to protest such unwillingness, in no measure detracts from their value.

The move toward statutory protection of private information that followed Watergate contrasted sharply with a powerful surge of similar law demanding public disclosure of government business. Watergate at times threatened to become a parody of the “open society,” as media, print and electronic, vied with one another for new revelations of official wrongdoing. That enterprise, combined with the Watergate environment, fostered substantial additions to the Freedom of Information Act (FOIA) of 1966, the landmark law that provided an opportunity to scrutinize behind-the-scenes activity in the executive branch (if not the legislative). To comply with the law, agencies established their own FOIA units and made records available with disparate degrees of generosity and reluctance. In effect, there was no one FOIA; the reality was that different standards operated according to the whims of different agencies. In the experience of some researchers, the Defense Department proved one of the most cooperative in furnishing information, while the Criminal Division of the Justice Department quickly acquired a reputation for being the most dilatory. The CIA notoriously released only what it wanted, also using the law as a fig leaf for calculated, self-serving leaks. At times, researchers found that in operation the FOIA was a bonanza for Xerox machines and Magic Marker pens, as agencies duplicated hundreds of thousands of pages studded with deletions.

Enterprising attempts to burrow deeper into bureaucratic and White House behavior revealed the shortcomings of the FOIA. When the Supreme Court ruled in 1973 that the original law did not give courts the right to review bureaucratic decisions, the Watergate context inspired a congressional movement to revise the law. The House passed new provisions in March 1974, followed by Senate action in May. A conference version finally emerged in November.

The bill enhanced judicial-review procedures, stipulated time limits for responses to requests for information and to appeals of denials, authorized courts to award attorney fees in the event individuals successfully sued, narrowed national-security and law-enforcement exemptions from the law, and required all agencies to report to Congress annually on decisions to withhold information. The provision for judicial intervention attracted significant opposition, providing as it did a measure of superintendence of bureaucratic action. But it was the loosening of national-security exemptions that provided the focus for floor opposition to the FOIA. Senator Roman Hruska complained that the bill would “open confidential files to any person who requested them at the expense of our nation’s interest in foreign relations
and defense and every individual’s interest in law enforcement.” The day, however, still belonged to the spirit of Watergate. Edward Kennedy thought that FOIA reform was an appropriate response to the abuses of governmental institutions and the corruption of the political processes that had characterized Watergate. Ford vetoed the bill, causing Kennedy to charge that the President had “yielded to the pressures of his bureaucracy to keep the doors shut tight against public access in many areas.” The appeal was irresistible, and Congress comfortably overrode the veto.

The Reagan Administration made no secret of its hostility to the FOIA, and it nearly succeeded in 1984 in securing a broad range of restrictions on its application. Congress, however, only provided new exemptions for the CIA which enabled the Agency to skirt search and review requirements. The reality of bureaucratic caprice persisted; the release of information depended more on the predisposition of agencies and individuals than on provisions of the statute.
²²

In what had the appearance of being part of a bargain surrounding the pardon, the Ford Administration had negotiated an agreement with Nixon on September 8, 1974, stipulating the ex-president’s “total control over all the materials and records of his Administration,” including restricting public access to documents and the right to destroy all tape recordings within a certain time. In agreeing, Ford undoubtedly had acted in terms of his own long-term interest, as well as from pressure by his predecessor and the Nixon loyalists who remained in the White House. William Saxbe, the Attorney General, had provided an opinion that presidential ownership of White House materials had been settled practice and did not violate any law or constitutional provision. Nevertheless, Congress reacted vehemently against the arrangement and within months passed the Presidential Recordings and Materials Preservation Act of 1974 (PRMPA), nullifying the September agreement. The law directed the National Archives to take possession and control of the Nixon materials and to regulate public access.