THE BUSH administration's warrantless wiretapping program may have shocked and surprised many Americans when it was revealed in December, but to me, it provoked a case of deja vu.
The Nixon administration bugged my home phone -- without a warrant -- beginning in 1973, when I was on the staff of the National Security Council, and kept the wiretap on for 21 months. Why? My boss, national security advisor Henry Kissinger, and FBI Director J. Edgar Hoover believed that I might have leaked some information to the New York Times. When I left the government a few months later and went to work on Edmund Muskie's presidential campaign (and began actively working to end the war in Vietnam), the FBI continued to listen in and made periodic reports on everything it heard to President Nixon and his closest associates in the White House.
Recent reports that the Bush administration is monitoring political opponents who belong to antiwar groups also sounded familiar to me. I was, after all, No. 8 on Nixon's "enemies list" -- a curious compilation of 20 people about whom the White House was unhappy because they had disagreed in some way with the administration.
The list, compiled by presidential aide Charles Colson, included union leaders, journalists, Democratic fundraisers and me, among others, and was part of a plan to "use the available federal machinery to screw our political enemies," as presidential counsel John Dean explained it in a 1971 memo. I always suspected that I made the list because of my active opposition to the war, though no one ever said for sure (and I never understood what led Colson to write next to my name the provocative words, "a scandal would be helpful here").
As I watch the Bush administration these days, it's hard not to notice the clear similarities between then and now. Both the Nixon and Bush presidencies rely heavily on the use of national security as a pretext for the usurpation of unprecedented executive power. Now, just as in Nixon's day, a president mired in an increasingly unpopular war is taking extreme steps, including warrantless surveillance, that many people believe threaten American civil liberties and violate the Constitution. Both administrations shroud their actions in secrecy and attack the media for publishing what they learn about those activities.
But there also are important differences, and at first blush, it is hard to say which administration's policies are worse. Much of what the Nixon administration did was clearly illegal and in violation of the Constitution. Nixon and his colleagues seemed to understand that and worked hard to keep their activities secret. On the occasions when their actions became public, administration officials tried to blame others for them.
These actions were not limited to its warrantless wiretap program and the investigation of political opponents by the IRS and other agencies. They also included, among other things, the burglary of the office of Daniel Ellsberg's psychiatrist (to find evidence discrediting Ellsberg, who had leaked the Pentagon Papers to the New York Times) and the effort to have the CIA persuade the FBI to call off the investigation of the Watergate burglary (by asserting that it threatened national security).
Although the Nixon administration did argue (like the Bush administration) that virtually anything the president did to promote national security was lawful, it never presented an argument to justify these particular transgressions.
By contrast, as far as we know, the Bush administration has not engaged in any such inherently illegal activities. Nor has it, to our knowledge, specifically targeted its political opponents (aside from the outing of Joseph Wilson's wife, CIA agent Valerie Plame).
But even though Nixon's specific actions might have been more obviously illegal and more "corrupt" (in the sense that they were designed to advance his own career over his rivals), President Bush's claim of nearly limitless power -- including the ability to engage in a range of activities that pose a fundamental threat to the constitutional order and to our civil liberties -- overshadows all comparisons.
Among the many such activities are the seizure of U.S. citizens and their indefinite detention without charge or access to lawyers; warrantless wiretaps of citizens in violation of procedures mandated by Congress; and the seizing of individuals in foreign countries and their movement to third countries, where they have been subjected to torture in violation of U.S. laws and treaty obligations.
When these activities have leaked out, the president has not sought to deny them but has publicly defended them (and attacked the press for printing the information). The administration has vigorously opposed all efforts to have the courts review its actions, and when the Supreme Court has overruled the president, as it has several times now, the administration has given the court holdings the narrowest possible interpretation.
Congress has been treated with equal disdain. When the Senate voted overwhelmingly to prohibit torture and cruel and degrading treatment by all agencies, including the CIA, Vice President Dick Cheney warned lawmakers that they were overstepping their bounds and threatening national security. When Congress persisted and attached the language to a defense appropriations bill, the president signed the law with an accompanying statement declaring his right to disobey the anti-torture provisions.
The administration has repeatedly failed to inform Congress or its committees of what it was doing, or has told only a few selected members in a truncated way, preventing real oversight. Even leading Republicans, such as Michigan's Rep. Peter Hoekstra, chairman of the House Intelligence Committee, and Sen. Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee, have voiced strong concerns.
During the Nixon years, the laws governing what the president could do and under what circumstances he needed to inform Congress were murky. There were no intelligence committees in Congress, and there was no Intelligence Oversight Act. There was no legislated prohibition on national security surveillance.
In response to Watergate and the related scandals of the Nixon years, however, Congress constructed a careful set of prohibitions, guidelines and requirements for congressional reporting.
Bush's systematic and defiant violation of these rules, as well as of the mandates of the Constitution and international law, pose a challenge to our constitutional order and civil liberties that, in the end, constitutes a far greater threat than the lawlessness of Richard Nixon.