The Civil War?

Sometimes things catch my eye and throw me into a fit of research. Such a thing happened today. I was reading a CNN article about Our Attorney General and his attempts at diffusing criticism over illegal wiretapping. Here's a quote from the article:
“Gonzales said warrantless wiretaps had been authorized by presidents in wartime since the Civil War.” His actual quote, found here, was “We've engaged in signal intelligence beginning with the Civil War and through all the conflicts since then.” Of course, I had to go look it up, being me and all.

His statement is definitely not false. Wiretapping has been going on ever since the telegraph was invented back in 1844. But, something about his statement just doesn't sit right.

First of all, there were no laws related to wiretapping during the Civil War, neither forbidding it nor regulating it. Therefor, a warant was not required. The first (federal)law regulating wiretapping did not come until 1934 (The Federal Communications Act of 1934). This law did not exactly forbid wiretapping, but regulated what one could do with information obtained by eavesdropping.

Unless I'm much mistaken, we have to go all the way to the late 60's for the first attempt at seriously regulating wiretapping (at least on the Federal level. Some states, including Washington had state laws regulating wiretapping much earlier than that) which means that for most of the conflicts we have had, going back to the Civil war and up to the the beginning of the Vietnam war, wiretapping was not illegal and was barely regulated.

So, only the conflicts we've been in since the Omnibus Crime Control and Safe Streets Act of 1968 were covered by any requirement for warants or other special regulation of wiretapping. So, whether or not we “engaged in signal intelligence” during those conflicts seems to me to be irrelevant to this case.

In fact, the law people are suggestion that the Bush administration is breaking, FISA, or the Foreign Intellignece Survellance Act didn't exist until 1978.

Is it just me, or does it seem more than a little disingenuous to try going all the way back to the Civil War to justify doing something that has only technically been illegal since 1978?

Also, semi-irrelevant point number 4725: since when does the simple fact that you've been doing something for a long time make it legal? Can serial rapists use that as a defense in court? “I've been doing it since 1978. . .”

Political cartoon

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