Washington's secrecy battles – from 9/11 to Enron

In the mid-1970s, congressional investigations unearthed years of extensive illegal FBI wiretaps, surveillance, and break-ins aimed at political dissidents and civil rights activists, including the Rev. Martin Luther King Jr. The 1976 report of the House Intelligence Committee, suppressed by a vote of the House, spoke of "careers ... ruined, friendships severed ... in some cases, lives endangered."

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It was to establish control of FBI activities that Congress, in 1978, passed the Foreign Intelligence Surveillance Act. It created a unique secret court, with judges selected by the Supreme Court's chief justice, to review applications for wiretapping foreign agents. Operating behind walls of secrecy, and seldom refused, the bureau became slipshod in writing its applications.

As a result, in the fall of 2000, according to The New York Times, the seven judges called Attorney General Janet Reno to their secret courtroom to complain of misleading affidavits. The scorched FBI counterintelligence unit began holding back on submitting new applications.

Some requests relating to Al Qaeda were held up for review as to whether they met the legal standard for a wiretap warrant. This was the atmosphere in which the dedicated Agent Rowley found herself being frustrated in her efforts to obtain a warrant to search Zacarias Moussaoui's laptop computer. But that was in the month before Sept. 11. In the wake of Sept. 11, the hastily enacted USA Patriot Act gave Attorney General John Ashcroft broader power to circumvent the Fourth Amendment's "probable cause" standard, and reduce judges' discretion in issuing certain types of warrants.

So, are we going back to the days when Henry Kissinger, in the Nixon White House, could write his own list of wiretap targets? Are we faced again with that vexing question of how much privacy to yield in the name of security?

For a president facing such difficult questions, there is nothing like a European tour, reviewing honor guards, hobnobbing with foreign leaders, and walking among the graves on the Normandy beachhead. President Bush has clearly enjoyed his week of respite from the issues of secrecy vs. disclosure that are preoccupying Washington. Issues of overseeing vs. overlooking, you might say.

The secrecy battles are being fought on the domestic and the terrorism fronts. Domestically, Sen. Joseph Lieberman (D) is using congressional subpoena power to pursue the records of the administration's close ties with Enron. From papers already released, it is clear that Enron had a big hand in writing the administration's energy policy and naming its regulatory officials. The White House is resisting supplying the bulk of the subpoenaed documents, but is reluctant to invoke executive privilege as too reminiscent of the Nixon coverup. It is hard to imagine what these documents contain that is worth all the stonewalling.

The other battle is about terrorism, and that brings us back to what the administration knew before Sept. 11. The administration continues to sit on its assets and fiercely resists the idea of an inquiry by an independent commission. We have learned a lot from the aforementioned letter by Coleen Rowley in Minneapolis and the neglected memo by Agent Kenneth Williams in Phoenix about the possibility that Osama bin Laden was using American flight schools to train terrorists.

But we know very little about another key document – the CIA briefing paper that was given to the president at his Texas ranch on Aug. 6 and captioned: "Bin Laden determined to strike in the US." Was the administration too unconcerned about the terrorist threat in this country five weeks before Sept. 11?

Vice President Dick Cheney said the CIA paper was just a "rehash," containing nothing new. But as to why Congress should not see it, Mr. Cheney said, "Because it contains the most sensitive sources and methods. It's the family jewels."

A rehash is the family jewels? A series of alerts about future terrorist threats has not diverted attention from errors of the past. These issues, sitting on the president's doorstep when he returned from Europe, await his full attention.

• Daniel Schorr is a senior news analyst at National Public Radio.