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Privacy, Wiretapping and the Citizen Congress’ Battle to Set Legal Boundaries on Government Wiretapping in the 1970S Olsen, E.A

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Privacy, Wiretapping and the Citizen Congress’ Battle to Set Legal Boundaries on Government Wiretapping in the 1970S Olsen, E.A UvA-DARE (Digital Academic Repository) Privacy, wiretapping and the citizen Congress’ battle to set legal boundaries on government wiretapping in the 1970s Olsen, E.A. Publication date 2020 Document Version Other version License Other Link to publication Citation for published version (APA): Olsen, E. A. (2020). Privacy, wiretapping and the citizen: Congress’ battle to set legal boundaries on government wiretapping in the 1970s. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:29 Sep 2021 Privacy, Wiretapping and the Citizen: Congress’ Battle to Set Legal Boundaries on Government Wiretapping in the 1970s ACADEMISCH PROEFSCHRIFT ter verkrijging van de graad van doctor aan de Universiteit van Amsterdam op gezag van de Rector Magnificus prof. dr. ir. K.I.J. Maex ten overstaan van een door het College voor Promoties ingestelde commissie, op donderdag 25 juni 2020 te 13.00 uur door Erik Alfred Olsen geboren te New York Promotiecommissie Promotor: prof. dr. R.V.A. Janssens Universiteit van Amsterdam Copromotor: dr. E.F. van de Bilt Universiteit van Amsterdam Overige leden: prof. dr. B. Roessler Universiteit van Amsterdam prof. dr. I.G.B.M. Duyvesteyn Universiteit Leiden prof. dr. J.A. Peters Universiteit van Amsterdam dr. G.H. Blaustein Universiteit van Amsterdam prof. dr. M. van Leeuwen Universiteit van Amsterdam Faculteit der Geesteswetenschappen The research of this doctoral thesis received financial assistance from the Ford Presidential Library. Table of Contents Introduction 1 a. Research Topic 3 b. Existing Scholarship 10 c. Thesis Statement 25 d. Sources 36 e. Subtopics 41 Section 1: The Era of Regulation Without Oversight 46 Chapter 1: Privacy Rights in the Early Twentieth Century 47 1.a. Wiretapping Regulations in the Absence of Fourth Amendment Protections 49 1.b. Early Twentieth Century Decisions by the Supreme Court and Congress’ Foray into Wiretapping Regulations 56 1.b.1. Olmstead v. United States, 277 U.S. 438 (1928) 56 1.b.2. The Communications Act of 1934 60 1.b.3. Nardone v. United States, 302 U.S. 370 (1937) 72 Conclusion 79 Chapter 2: The 1960s: Berger, Katz and Congress Link Wiretapping to Fourth Amendment Protections 82 2.a. Privacy Evolves into a Constitutional Right, 1967-68 91 2.a.1 Berger v. New York, 388 U.S. 41 (1967) 91 2.a.2. Katz v. United States, 316 U.S. 129 (1967) 97 2.b. The Omnibus Crime Control and Safe Streets Act of 1968 105 2.c. Warrantless Wiretapping Threatens a Constitutional Conflict 108 Conclusion 118 Section 2: Congress Investigates the White House – Intelligence Community Relationship 124 Chapter 3: The Watergate Scandal, the Houston Plan and The Effects on the White House – Intelligence Community Relationship 125 3.a. Congress Learns About the Houston Plan 127 3.b. The Watergate Scandal Damages the Executive Branch 141 Conclusion 144 Chapter 4: The Rockefeller Commission, the Executive Branch’s Overture to Dominate the Intelligence Investigation of the 1970s 146 Conclusion 156 Chapter 5: The Pike Committee, A Failed Investigation from the House 157 5.a. The Failed Nedzi Committee 161 5.b. The House Kills the Pike Committee Final Report 164 Conclusion 173 Chapter 6: The Church Committee, Privacy, and Warrantless Wiretapping 177 6.a. The Church Committee’s Formation and Their Success as Contrasted with the Pike Investigation 181 6.b. The Scope of the Church Committee Investigation 190 6.c. The Imperial Presidency 195 6.d. Why Was Privacy and Warrantless Wiretapping of Such Interest to the Committee? 200 Conclusion 203 Chapter 7: The Church Committee Investigation of the FBI and COINTELPRO 206 7.a. What Was COINTELPRO and Why Was It Created? 208 7.b. The Main Five COINTELPRO Operations and Their Budgets 211 7.b.1. COINTELPRO I: ‘Communist Party, USA’ Program (1956-71) 212 7.b.2. COINTELPRO II: ‘Socialist Workers Party’ Program (1961-69) 215 7.b.3. COINTELPRO III: ‘White Hate Group’ Program (1964-71) 216 7.b.4. COINTELPRO IV: ‘Black Nationalist – Hate Group’ Program (1967-71) 218 7.b.5. COINTELPRO V: ‘The New Left’ Program (1968 – 71) 220 7.c. The Reverend Martin Luther King, Jr. and the FBI 222 7.d. COINTELPRO Exposes the Need for Congressional Regulations on Wiretapping and Oversight of the White House Intelligence Community Relationship Stakeholders 227 Conclusion 240 Chapter 8: The Church Committee, the Central Intelligence Agency, and Operation CHAOS 242 8.a. The Creation of the Central Intelligence Agency 245 8.b. Operation CHAOS 247 8.c. How the Church Committee’s Findings with Respect to Operation CHAOS Helped Formulate Their Reform Recommendations 254 Conclusion 267 Section 3: Congress Creates New Regulations and Oversight on the White House-Intelligence Community Relationship 270 Chapter 9: The Corrective Actions of Congress and the Establishment of the Permanent Congressional Oversight Regime 271 9.a. Why the Focus on Privacy, Warrantless Wiretapping and Violations of the Fourth Amendment? 274 9.b. Historical Problems Related to Congressional Controls of Intelligence and the End of the Buddy System 285 9.c. How Does Congress Best Regulate and Perform Oversight in the White House – Intelligence Community Relationship 294 Conclusion 299 Chapter 10: The Foreign Intelligence Surveillance Act of 1978 302 10.a. The Foreign Intelligence Surveillance Act of 1978 – S. 1566 305 10.b. Defining Terms Under FISA 311 10.c. Foreign Intelligence Surveillance Court 315 10.d. Surveillance with Warrant 319 10.e. Pre-Warrant Surveillance 322 Conclusion 328 Chapter 11: Senate Resolution 400 and the Intelligence Oversight Act of 1980 333 11.a. Congressional Intelligence Oversight, Privacy and Wiretapping 341 11.b. Senate Resolution 400 (1976) 345 11.c. The ‘Cannon Compromise’ 348 11.c.1. 12 May 1976 Introduction of S.R. 400 Cannon Compromise 350 11.c.2. 13 May 1976 Debate and Amendment on the Cannon Compromise 351 11.c.3. 17 May 1976 Debate and Amendment on the Cannon Compromise 353 11.c.4. 18 May 1976 Debate and Amendment on the Cannon Compromise 356 11.c.5. 19 May 1976 Debate and Amendment on the Cannon Compromise 358 11.d. The Intelligence Oversight Act of 1980 – S.2284 361 11.e. Reporting Requirement and Covert Activity 365 Conclusion 375 Section 4: The Intelligence Reforms of the 1970s in the Changing Political Climates Over Subsequent Decades: From Church to the Torture Report 379 Chapter 12: Changes to FISA From Boland Amendments Through the Patriot Act and Torture Report 380 12.a. Congressional Oversight in the Post-1970s 386 12.a.1. The Boland Amendments 386 12.a.2. USAPATRIOT ACT of 2001 395 12.a.3. Changes to FISA via Amendment to the USAPATRIOT ACT of 2001 401 12.a.4. The CIA Torture Report and the Senate Intelligence Committee 412 12.b. Congress Abdicates Oversight Responsibilities: Two Case Studies 416 12.b.1. The Aspin-Brown Commission 416 12.b.2. The 9/11 Commission and the Bush White House Controlled Investigation 418 Conclusion 422 Conclusion 424 References 439 Summary, English 475 Summary, Dutch 479 .
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