IP: Speaking Out About Wiretaps an oped

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: swire.1 () osu edu
Date: Fri, 30 Aug 2002 10:56:46 -0400 (EDT)
To: dave () farber net
Subject: A washingtonpost.com article from: swire.1 () osu edu

You have been sent this message from swire.1 () osu edu as a courtesy of the
Washington Post - http://www.washingtonpost.com
 
 Dave:

An op ed in today's Washington Post that John Podesta and I wrote.  It
discusses the recent foreign intelligence wiretap decision and what to do
about it.

Peter

 
 To view the entire article, go to
http://www.washingtonpost.com/wp-dyn/articles/A14078-2002Aug29.html
 
 Speaking Out About Wiretaps
 
 By John Podesta  and Peter Swire
  Last week the Foreign Intelligence Surveillance Court, breaking 25 years
of silence, released a remarkable opinion that placed limits on the way the
Justice Department can conduct foreign intelligence searches on U.S. soil.
 
 The court explained that its opinion, which the Justice Department is
appealing, was needed to comply with statutes and "to protect the privacy of
Americans" against "highly intrusive surveillances and searches."
 
 Even more important, the court's opinion shows how, in each generation, we
need to create new ways to bring checks and balances into our system of
government.
 
 This debate is not new. Presidents have long claimed sweeping power over
foreign affairs, including the power to track foreign agents when they come
into our country. In 1940 Franklin D. Roosevelt became the first president
to specifically task the FBI with wiretapping and bugging suspected
subversives and spies to protect the national security. With little review
by Congress or the courts, the practice of warrant-less "national security"
wiretaps expanded exponentially during the Cold War and over succeeding
administrations of both parties.
 
 Then, in the early 1970s, the Church Committee exposed intelligence agency
abuses, including the FBI's COINTELPRO operations, which sought to disrupt
political groups and discredit and harass individuals, including Martin
Luther King Jr. After public debate, the CIA was barred from most
investigations within the United States, and new controls were instituted to
limit FBI meddling in domestic politics.
 
 A knotty problem was how to investigate spies and other agents of foreign
powers within the United States. No warrant was needed, for instance, to
place a wiretap on the Soviet Embassy in Washington. The Justice Department
did not need to show "probable cause" -- the usual standard for a warrant or
wiretap -- before keeping tabs on a Soviet spy.
 
  The answer to this problem was the Foreign Intelligence Surveillance Act
(FISA), enacted in 1978. FISA created a "wall" between law enforcement
measures aimed at criminals and foreign intelligence actions aimed at agents
of a foreign power. For law enforcement, a wiretap required probable cause,
and the existence of the wiretap was disclosed to the target after the fact.
In addition, overreaching in a wiretap could prevent the information from
being used later in a criminal trial.
 
 By contrast, wiretaps for foreign intelligence could be placed under an
easier standard. All FISA wiretap orders went to the Foreign Intelligence
Surveillance Court, composed of federal judges. The wiretaps stayed secret
forever. And no evidence has ever been kept out of court because of misuse
of the FISA wiretap power.
 
 Fast-forward a generation to the attacks of last September. The wall
between domestic and foreign suddenly seemed outdated to many, with
terrorists clearly operating both within the United States and overseas. The
Bush administration and Congress reacted by enacting the USA Patriot Act,
which contained the biggest changes to FISA since its origin.
 
 Now a FISA wiretap is permitted if a "significant" purpose is foreign
intelligence, even if there is a large domestic law enforcement reason for
surveillance. The standards for getting a FISA wiretap were softened, more
intelligence-sharing between the FBI and the CIA was encouraged, and
"roving" wiretaps were authorized to track suspects who are using multiple
phones or computers to communicate.
 
 The case for coordinating domestic and foreign intelligence is indeed
strong in the face of the terrorist threat. But with the need for better
coordination comes the need to create the new checks and balances
appropriate a generation after FISA was enacted. Checks and balances can
reduce abuses of authority, such as the pattern of misrepresentation that
the court found in more than 75 FISA cases. The checks and balances also
enhance performance.
 
 One of the alarming aspects of the FISA story is that the FBI's then-secret
pattern of misbehavior had so outraged the judges by summer 2001 that
prosecutors were reluctant to ask for a FISA warrant to search the computer
of suspected hijacker Zacarias Moussaoui. The court's opinion shows one
bright line that we should retain. The court permits sharing of FISA data in
some instances, but it orders that "law enforcement officials do not direct
or control the use of the FISA procedures to enhance criminal prosecution."
This decision matches both the Constitution and common sense. When a
prosecutor directs someone to do a search on U.S. soil, the Fourth Amendment
applies and the usual warrant requirements must apply as well.
 
 Going further, we should not leave to judges alone the need to balance
foreign intelligence-gathering and constitutional liberties. Congressional
oversight committees must have a better basis for seeing how surveillance
laws are operating. Better oversight will lead to better laws over time, and
also let the bureaucracies know that someone will hold them accountable for
misrepresentations and mistakes. Senators from both parties have recently
announced their frustration with the Justice Department's refusal to
disclose how it is using its new powers under the USA Patriot Act.
 
 In addition, now is the time to create a Commission on Privacy, Personal
Liberty and Homeland Security as part of the bill the Senate will soon
consider to create the Homeland Security Department. The USA Patriot Act was
passed in haste, with no hearings on the foreign intelligence law changes. A
thorough public debate is needed as the new department gears up and as the
USA Patriot surveillance laws come up for reconsideration in three years.
 
 The terrorist threat is here for the long haul. Our agents need new powers
to respond to the new threats. We also need new checks and balances,
tailored to those new powers.
 
 John Podesta is a visiting professor of law at Georgetown University. Peter
Swire is a professor of law at Ohio State University. They coordinated the
Clinton administration's 2000 proposal to update the foreign intelligence
and electronic surveillance laws.
 
  
 
   

 


------ End of Forwarded Message

For archives see:
http://www.interesting-people.org/archives/interesting-people/