Wiretapping's true danger
- History says we should worry less about privacy and more about
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
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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