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Wiretapping's true danger

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    History says we should worry less about privacy and more about political spying. Wiretapping s true danger By Julian Sanchez March 16, 2008
    Message 1 of 1 , Apr 7, 2008
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      History says we should worry less about privacy and more about
      political spying.

      Wiretapping's true danger
      By Julian Sanchez
      March 16, 2008

      As the battle over reforms to the Foreign Intelligence Surveillance
      Act rages in Congress, civil libertarians warn that legislation sought
      by the White House could enable spying on "ordinary Americans."
      Others, like Sen. Orrin Hatch (R-Utah), counter that only those with
      an "irrational fear of government" believe that "our country's
      intelligence analysts are more concerned with random innocent
      Americans than foreign terrorists overseas."

      But focusing on the privacy of the average Joe in this way obscures
      the deeper threat that warrantless wiretaps poses to a democratic
      society. Without meaningful oversight, presidents and intelligence
      agencies can -- and repeatedly have -- abused their surveillance
      authority to spy on political enemies and dissenters.

      The original FISA law was passed in 1978 after a thorough
      congressional investigation headed by Sen. Frank Church (D-Idaho)
      revealed that for decades, intelligence analysts -- and the presidents
      they served -- had spied on the letters and phone conversations of
      union chiefs, civil rights leaders, journalists, antiwar activists,
      lobbyists, members of Congress, Supreme Court justices -- even Eleanor
      Roosevelt and the Rev. Martin Luther King Jr. The Church Committee
      reports painstakingly documented how the information obtained was
      often "collected and disseminated in order to serve the purely
      political interests of an intelligence agency or the administration,
      and to influence social policy and political action."

      Political abuse of electronic surveillance goes back at least as far
      as the Teapot Dome scandal that roiled the Warren G. Harding
      administration in the early 1920s. When Atty. Gen. Harry Daugherty
      stood accused of shielding corrupt Cabinet officials, his friend FBI
      Director William Burns went after Sen. Burton Wheeler, the fiery
      Montana progressive who helped spearhead the investigation of the
      scandal. FBI agents tapped Wheeler's phone, read his mail and broke
      into his office. Wheeler was indicted on trumped-up charges by a
      Montana grand jury, and though he was ultimately cleared, the FBI
      became more adept in later years at exploiting private information to
      blackmail or ruin troublesome public figures. (As New York Gov. Eliot
      Spitzer can attest, a single wiretap is all it takes to torpedo a
      political career.)

      In 1945, Harry Truman had the FBI wiretap Thomas Corcoran, a member of
      Franklin D. Roosevelt's "brain trust" whom Truman despised and whose
      influence he resented. Following the death of Chief Justice Harlan
      Stone the next year, the taps picked up Corcoran's conversations about
      succession with Justice William O. Douglas. Six weeks later, having
      reviewed the FBI's transcripts, Truman passed over Douglas and the
      other sitting justices to select Secretary of the Treasury (and poker
      buddy) Fred Vinson for the court's top spot.

      "Foreign intelligence" was often used as a pretext for gathering
      political intelligence. John F. Kennedy's attorney general, brother
      Bobby, authorized wiretaps on lobbyists, Agriculture Department
      officials and even a congressman's secretary in hopes of discovering
      whether the Dominican Republic was paying bribes to influence U.S.
      sugar policy. The nine-week investigation didn't turn up evidence of
      money changing hands, but it did turn up plenty of useful information
      about the wrangling over the sugar quota in Congress -- information
      that an FBI memo concluded "contributed heavily to the
      administration's success" in passing its own preferred legislation.

      In the FISA debate, Bush administration officials oppose any explicit
      rules against "reverse targeting" Americans in conversations with
      noncitizens, though they say they'd never do it.

      But Lyndon Johnson found the tactic useful when he wanted to know what
      promises then-candidate Richard Nixon might be making to our allies in
      South Vietnam through confidant Anna Chenault. FBI officials worried
      that directly tapping Chenault would put the bureau "in a most
      untenable and embarrassing position," so they recorded her
      conversations with her Vietnamese contacts.

      Johnson famously heard recordings of King's conversations and personal
      liaisons with various women. Less well known is that he received
      wiretap reports on King's strategy conferences with other civil rights
      leaders, hoping to use the information to block their efforts to seat
      several Mississippi delegates at the 1964 Democratic National
      Convention. Johnson even complained that it was taking him "hours each
      night" to read the reports.

      Few presidents were quite as brazen as Nixon, whom the Church
      Committee found had "authorized a program of wiretaps which produced
      for the White House purely political or personal information unrelated
      to national security." They didn't need to be, perhaps. Through
      programs such as the National Security Agency's Operation Shamrock
      (1947 to 1975), which swept up international telegrams en masse, the
      government already had a vast store of data, and presidents could
      easily run "name checks" on opponents using these existing databases.

      It's probably true that ordinary citizens uninvolved in political
      activism have little reason to fear being spied on, just as most
      Americans seldom need to invoke their 1st Amendment right to freedom
      of speech. But we understand that the 1st Amendment serves a dual
      role: It protects the private right to speak your mind, but it serves
      an even more important structural function, ensuring open debate about
      matters of public importance. You might not care about that first
      function if you don't plan to say anything controversial. But anyone
      who lives in a democracy, who is subject to its laws and affected by
      its policies, ought to care about the second.

      Harvard University legal scholar William Stuntz has argued that the
      framers of the Constitution viewed the 4th Amendment as a mechanism
      for protecting political dissent. In England, agents of the crown had
      ransacked the homes of pamphleteers critical of the king -- something
      the founders resolved that the American system would not countenance.

      In that light, the security-versus-privacy framing of the contemporary
      FISA debate seems oddly incomplete. Your personal phone calls and
      e-mails may be of limited interest to the spymasters of Langley and
      Ft. Meade. But if you think an executive branch unchecked by courts
      won't turn its "national security" surveillance powers to political
      ends -- well, it would be a first.

      Julian Sanchez is a Washington writer who studies privacy and



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