Putting Warrantless Wiretapping into Historical Perspective

Warrantless wiretapping has become a controversial issue. It has become a cause celebre for both partisans on the right and on the left. Much has been made of the controversial program. Here is how some of the language against the program goes.

Think about it. Warrantless wiring taping sounds as if what you did was without a warrant, which would make it illegal. Warrant-free just means you were unfettered by warrants. That sounds so much nicer, doesn’t it? Like sugar-free is superior to sugarless, or law-free is better than illegal.

And eavesdropping is what Lucy did to Ethel when she was trying to find out what
Ricky was getting for her birthday. Wiring tapping…well, that makes makes you think of Watergate.

and...

This is an outrage. Bush has provided no evidence that his illegal domesticspying scheme has made Americans safer against terrorism, and congressional Democrats appear likely to cave in to his demands. Worse yet, I have not been able to find any details of this legislation. Congress should not rush to pass any legislation amending FISA without allowing citizens to review and comment on it.

If you believe some of the most fervent opponents of the program, this is an unprecedented assault on the Constitution. Is it though?

Let's see how prior Presidents acted during war and other conflicts.

Abraham Lincoln suspended habeas corpus three times during the Civil War. In other words, by Presidential decree, Lincoln began to arrest war opponents (the target of his suspension) without charging them with any crimes. While a judge eventually did rule his act unconstitutional, this was only done after the war ended. Beyond that, he jailed dissidents and he even shut down newspapers. Furthermore, he tried Confederate soldiers in military tribunals rather than regular courts.

During WWI, Woodrow Wilson set up something known as the Creel Commission. Here are some of their duties...

These groups spied, tapped telephones, and opened mail in an effort to ferret out "spies and traitors." The targets of these groups was anyone who called for peace, questioned the Allies' progress, or criticized the government's policies. They were particularly hard on German Americans, some of whom lost their jobs, and were publicly humiliated by being forced to kiss the American flag, recite the Pledge of
Allegiance, or buy war bonds.

During WWII, FDR took all sorts of drastic steps. For instance, he created an office of censorship which filtered the media during WWII.

All Americans abhor censorship, just as they abhor war. But the experience of this and of all other Nations has demonstrated that some degree of censorship is essential in wartime, and we are at war.

The important thing now is that such forms of censorship as are necessary shall be administered effectively and in harmony with the best interests of our free institutions.

It is necessary to the national security that military information which might be of aid to the enemy be scrupulously withheld at the source.

It is necessary that a watch be set upon our borders, so that no such information may reach the enemy, inadvertently or otherwise, through the medium of the mails, radio, or cable transmission, or by any other means.

It is necessary that prohibitions against the domestic publication of some types of information, contained in long-existing statutes, be rigidly enforced.

Finally, the Government has called upon a patriotic press and radio to abstain voluntarily from the dissemination of detailed information of certain kinds, such as reports of the movements of vessels and troops. The response has indicated a universal desire to cooperate.

More famously, he set up internment camps which isolated Japanese Americans from the rest of the population.

February 19 will be forever known as a “day of infamy” for Japanese Americans. On this date in 1942, President Franklin Roosevelt signed Executive Order 9066, the innocuously titled “Executive Order Authorizing The Secretary of War To Prescribe Military Areas.” Yet, there was nothing harmless about this initiative. Although it did not specifically mention “Japanese” or “Japanese Americans,” the order’s intent was clear. Executive Order 9066 authorized the federal government to incarcerate nearly 120,000 Japanese Americans--without due process--in internment camps throughout World War II.

Finally, during the "police action" known as the Vietnam War, LBJ ordered a draft, forcing men of fighting age into war.

All of these Presidents, used extraordinary measures by the power granted to them as Commander in Chief by the U.S. Constitution. I have had many an arguement with opponents of warrantless wiretapping in which I have used these historical references. Each and every time, the response has been that each of these other Presidents also went over the line. It is a silly and desperate view that every President stepped over the line during war. In fact, they did not. During wartime, the most important thing is victory. War is an unprecendented and extraordinary situation, and it requires action not warranted during peace time. Each of these Presidents understood that and they did what they felt was necessary to insure victory in their respective wars. Given their own extraordinary use of war powers, I think the debate on warrantless wiretapping takes on a whole new context.