Counterterrorism Blog

What is at stake in the debates over telecommunications company liability, and the foreign surveillance bill? If the plaintiffs suing the telecoms have righteous cases worthy of a judgments of liability, immunity might not be such a good idea. If not, the surveillance authority is arguably being delayed needlessly.

The best answer to this question might come from Watergate and the abuses of the Nixon Administration. After all, American law is based on precedent, and the principle of stare decises. What does the precedent of the Watergate scandal indicate about telecom liability for national security cooperation today?

Between February and April of 1969, Nixon Administration grew increasingly concerned about leaks to the press of certain foreign policy documents and classified information relating to U.S. policies in Vietnam, China, the Soviet Union, Europe, and the Mideast. In late April 1969, President Nixon, Attorney General John Mitchell, National Security Affairs Advisor Henry Kissinger, and FBI Director J. Edgar Hoover met to discuss the problems of leaks and to formulate a plan for stopping the disclosures. After receiving the Attorney General's legal opinion on the matter and assurances from the FBI Director about previous Executive practice, President Nixon authorized a program of electronic surveillance of individuals within the U.S. suspected of leaking information detrimental to the country's national defense and foreign policy. Those to be wiretapped would be selected on the basis of access to information leaked, material in security files, and evidence developed as the surveillance went forward.

On May 9, 1969, following the appearance of an article in the New York Times concerning United States B-52 bombing raids in Cambodia, wiretaps were requested on four individuals, including Morton Halperin, chief of the National Security Council Planning Group. The names were provided by Kissinger and were transmitted by Haig to the Assistant Director of the FBI's Domestic Intelligence Division, William Sullivan. Three days later, Mitchell gave his authorization for the wiretap of the Halperin home telephone.

The monitoring of the Halperin home telephone began on the evening of May 9, 1969. FBI agents monitored phone communications and prepared logs of many of the conversations. Letters summarizing some of the discussions were prepared and forwarded to FBI Director Hoover for transmittal to the President (through Presidential Counsel John Ehrlichman) and to Kissinger (through Haig). Occasionally, summaries of intercepts were sent to Mitchell. After May 1970, the FBI's summary letters were sent only to Presidential Assistant H.R. Haldeman, who was to screen the letters for relevant information. On February 10, 1971, the Halperin wiretap was removed.

Following discussions involving Sullivan, Assistant Attorney General Robert Mardian, President Nixon, and Ehrlichman concerning disposition of the wiretap documents, the records were taken from the FBI's custody and placed in a safe in Ehrlichman's White House office. The Administration's failure to produce the documents resulted in the dismissal of a criminal prosecution of Daniel Ellsberg for the leak of the Pentagon Papers in Los Angeles. On May 12, 1973, the Halperin wiretap records were recovered from Ehrlichman's safe and returned to the FBI.

On June 14, 1973, the Halpern family sued various government officials and the telephone company - Chesapeake and Potomac Telephone Company - under the First, Fourth, Fifth, and Ninth Amendments to the Constitution and under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, seeking a declaratory and injunctive relief and money damages for defendants' allegedly illegal wiretapping of their home telephone.

Regarding phone company liability, here is what the court said:

The final defendant, Chesapeake and Potomac Telephone Company, argues persuasively that it played no part in selecting any wiretap suspects or in determining the length of time the surveillance should remain. It overheard none of plaintiffs' conversations and was not informed of the nature or outcome of the investigation. As in the past, C&P acted in reliance upon a request from the highest Executive officials and with assurances that the wiretap involved national security matters. Under these circumstances, C&P's limited technical role in the surveillance as well as its reasonable expectation of legality cannot give rise to liability for any statutory or constitutional violation.

Halperin v. Kissinger, 424 F.Supp. 838 (D.D.C. 1976)