The American Scene
The Kissinger affair and the law
Louis Claiborne
Did Henry Kissinger commit perjury when he told the Senate Foreign Relations Committee he did not direct the wiretapping of his aides and independent newsmen some five years ago? Were those wiretaps legal? Does Richard Nixon have any privilege against turning over Erhlichman's notes to the court or appearing as a witness at his trial? Can Special Prosecutor Jaworski, a member of the Executive Branch, sue the Chief Executive to obtain evidence for a criminal case? Is the President entitled to withhold evidence from an impeachment inquiry? What is an impeachable offence? Has Richard Nixon committed such an offence? Is a grand jury entitled to name a sitting President as a coconspirator in crime? These are the questions mooted in Washington these days.
They are all legal questions. And so is the related vocabulary: "subpoena," "executive privilege," "perjury," "obstruction of justice," "contempt," "high crime and misdemeanour," "conspiracy," "immunity," "felony," "unindicted co-conspirator," "plea bargaining," "indictment," "impeachment." Strange, perhaps, that the fundamental issues dividing a nation should be formulated so legalistically. But, for better or for worse, that is the' American way. And, just now, a special emphasis on law is no bad thing.
So, for the benefit of those few in whom boredom has not overtaken curiosity, it may be useful to discuss briefly some of these legal questions. For today, we shall focus on the Kissinger Affair, which is both the newest controversy and the oldest, originating as it does with wiretaps established in 1969.
Dr Kissinger's difficulty stems from his testimony before a Senate Committee at the time of his confirmation as Secretary of State. He then left the impression that he reluctantly "went along" with eavesdropping on some of his associates. Among other things, he said he "never recommended the practice of wiretapping." The Committee and the press let the matter drop. In the last few days, however, new material has surfaced which suggests that Kissinger and his then chief aide, General Haig, actually requested at least some of the wiretaps which were in fact installed on his assistants and on independent newsmen, including a British journalist. Accordingly, rude questions were asked and Dr Kissinger, a little too angry, one may think, threatened to resign if the issue were not silenced. His present stand is not wholly clear: it includes a repetition of the claim that he merely supplied names of possible security leaks, knowing those identified would be tapped, but not asking for such action; yet, on the other hand, an apparent concession that he did "initiate requests for wiretaps" when they were "trig. gered either by a security violation or by fulfilling the criteria of adverse information in the security files" (whatever that means). Well now. ... what are we to make of that? Did Dr Kissinger ask for some short-term taps? Or is his position still that he was not the prime mover but only co-operated in the scheme to wiretap? Either way, you may well ask what difference it makes. If the taps were legal and necessary, why all the fuss? And why the threat of resignation if others are engaging in a silly quibble? Can it be that the taps were not clearly legal and that, in any event, Dr Kissinger's denials before the Senators may amount to perjury?
The issue of perjury cannot be dismissed as wholly frivolous. We must remember that former Attorney General Kleindiest was deemed to have been let off lightly when he pleaded guilty to the lesser crime of misleading another Senate Committee by telling the half-truth that he was unaware of any White House intervention in the settlement of the ITT case whereas he well knew that the President had directly intruded on the appeal of the ITT case, technically a different question. The disparity between "never recommended" and "initiated some" wiretaps if that is how it comes out may be found equally misleading.
But, at all events, why the queasiness about the wiretaps? Why is Dr Kissinger so reluctant to assume responsibility for them? Is it genuine distaste for the practice? Or is there a basis for doubting the legality of the particular taps involved?
The general assumption seems to be that the wiretaps were proper. But let us look at the question more closely. We are told the taps, thirteen on government officers and four on newsmen, were installed and monitored by the FBI. Whoever requested them, they were all apparently approved by the Attorney General and perhaps also by the President, although not by any judge or magistrate. The object, Ike assume, was to discover who had leaked military and diplomatic secrets to the press — among other things the undisclosed bombing of Cambodia — with a view to preventing further such leaks from the same source. In some, if not all cases, the taps reached the private home telephones of individuals and those who monitored them must have overheard much of what was spoken by every user and every caller. It appears the project failed in its purpose. In these circumstances, was the operation legal?
We begin with the proposition that American law normally forbids governmental wiretapping without the previous authorisation of a judge, given only upon an adequate showing of need and for a limited time period. The Constitution itself so ordains, the Supreme Court has decided. And, since 1968, the Congress has made it a crime to violate the rule. There may be a limited exception where the security of the Nation is involved, as we shall see. But, before considering that, you may well ask why the Attorney General could not have applied to a court, as the law provides. Especially since this can be done in secret, without alerting the suspect.
There are several possible explanations. It may simply be that asking a mere district judge for permission did not come naturally to Mr Nixon or Mr Mitchell, or, for that matter, to ,vIr Hoover. We need onlremember that, despite weighty legal and judicial opinion that the practice was illegal, the Nixon Administration insisted on its supposed right to bypass the courts in wiretapping members of American "radical" groups until the Supreme Court unanimously ruled these activities unconstitutional in June, 1972 (as it happens just two days after the Watergate burglars were caught). At all events, however, it is doubtful if the necessary showing could have been made to a judge. The statute requires him to be satisfied, before he gives permission to wiretap, that "there is probable cause for belief" that the intercepted telephone has been or will be used in connection with one of a limited group of offences (including espionage). But, here, so far as we know, there was no real basis for suspecting any of the persons, tapped, except as mere possible sources of a leak.
Let us now turn to the claimed exception. The 1968 statute .does say that it is not intended to limit the "constitutional power of the President" to wiretap in certain specified circumstances. Whether that helps or not is open to debate, since the Congress obviously cannot rewrite the Constitution, which, on its face, does not exempt the President from obtaining judicial authorisation. On the other band, it is argued with some force that the Constitution cannot be construed in such a way as to render the nation powerless to protect itself and that every President since Roosevelt has assumed power to do what was done here without consulting the courts. The issue remains unsolved because the Supreme Court has so far avoided deciding it. To assume that the Constitution itself does not stand in the way is not the end of the matter, however. For a statute may prohibit what the Constitution ignores. Which brings us back to the 1968 law. It bars all wiretaps not approved by a judge except only what the President does: (1) "to protect the Nation against actual or potential attack or other hostile acts of a foreign power;" (2) "to obtain foreign intelligence information deemed essential to the security of the United States:"
(3) "to protect national security information against foreign intelligence activities;"
(4) "to protect the United States against the overthrow of the government by force or other unlawful means:" and, (5) "to protect against any other clear and present danger to the structure or ' existence of the Government."
Does our case fit any of these exceptions? Quite obviously, we cannot invoke (1), (2) or (4). Category (3) is nearer the mark. But is it even arguable that any of those wiretapped, whether citizens or not, were engaged in "foreign intelligence activities?" PresumablY, neither those who leaked nor the recipients of the secrets were acting as agents of a foreign government. Which leaves only the last exception, (5). The boundaries of that vague phrase are far from clear, although we do know from the Supreme Court ruling of 1912 that it cannot constitutionally authorise nonjudicially approved taps on political dissidents. It is a bold man who would say that wiretapping journalists was necessary t° preserve the "structure" or "existence" of the American government. The upshot is that the legality of the taPs Dr Kissinger "initiated" or "went along with is not established. Does that matter? WO would answer, "So what? All governments must, of necessity, perform all manner 01, illegal acts." Perhaps. But, in the America 01 Watergate, it were better to be seen following the letter of the law. One supposes Dr Kissinger senses it. Hence, what might seen1 much ado about nothing is become a serious issue.
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