FacebookTwitterGoogle+RedditEmail

New Anti-Terrorism Law Poses Old Risks

by Peter Swire

The Uniting and Strengthening America Act of 2001, expected to be signed by President Bush this week, will give our government important new surveillance powers to fight terrorism.

Unfortunately, the USA Act does not make sure that these expanded powers won’t be abused. While it sharply expands how government can wiretap e-mails and Web surfing, it provides no remedy if officials exceed that authority. It also breaks down the wall that once separated foreign intelligence-gathering from domestic law enforcement, without creating new safeguards to replace those it removes.

On the wiretap side, the act permits law enforcement to camp at a phone company or Internet service provider and monitor a wide range of communications as they flow through the network. The “computer trespasser” provision, as it’s called, is intended to let phone companies and Internet providers bring police into their systems to look for unauthorized usage.

The idea has a core of good sense. System owners should be able to ask for help from the police when they expect a hacker attack. The question is how well the new law has been written. The Bush administration proposed the “computer trespasser” language just four days after the attack on the World Trade Center. There was never a single hearing in Congress on the idea.

Law enforcement abuses feared

One worry with this new law is that a company might “invite” the police to stay based on undue pressure from law enforcement. Another worry is that the police might intentionally exceed their authority. Under the long-standing rule covering telephone wiretaps, law enforcement is forbidden from using wrongfully obtained evidence in court. But that rule does not apply to information illegally obtained by police from wiretaps of e-mail and Web surfing.

Last year, the Clinton administration proposed that intercepted e-mails be treated the same as intercepted phone calls. As the House Judiciary Committee debated the wiretap proposal this month, it agreed that illegal e-mail wiretaps should not be used in court. It made sure that law enforcement would have to report on how often it was using the expanded powers. The House also created a $10,000 fine against the government for illegal Internet wiretaps. None of these desirable safeguards made it into the final USA Act.

In a second big change, the USA Act integrates foreign intelligence-gathering and law enforcement in ways forbidden since the 1970s. Congress separated the two functions after discovering numerous abuses of the power, from clandestine spying here in the United States by the CIA to criminal prosecutions based on evidence obtained overseas by means that would be illegal under the Constitution.

Security forces work together

To stop those abuses, Congress enacted strict rules preventing the CIA and other intelligence agencies operating overseas from sharing information with domestic law-enforcement agencies. Those rules are outdated in the face of the current threat. In the recent words of one senior FBI official, “The walls are all down now.”

In the wake of Sept. 11, new integrated command centers house officials from the CIA, FBI, National Security Agency, Defense Intelligence Agency, Customs Service, and so on.

The USA Act furthers this trend. It specifically provides that secret grand jury testimony, historically used only for law enforcement within the United States, can now be shared with intelligence agencies without getting permission from a judge, or even noting the fact that the information has been shared.

Similarly, the act allows information gathered from secret wiretaps on foreign agents to go directly to law enforcement officials. Defendants no longer have to be informed that the wiretap occurred, as previous law required. From now on, it will be easier for the government to conduct “foreign intelligence” wiretaps and use information from those wiretaps without ever revealing their existence.

Again, the logic for these changes is clear. Terrorists clearly operate both in the United States and overseas. Communications on the Internet constantly bounce between different countries. If we leave walls in place between the CIA and the FBI, we prevent our agencies from seeing dangerous patterns and taking needed action.

In summary, there are strong reasons to support new surveillance powers. But we should stay keenly aware that we are repealing safeguards created because of previous abuse. The Framers adopted the Fourth Amendment to make sure that all government searches were reasonable and approved by an independent judge. When Congress revisits the wiretap rules soon, as it inevitably will, it must create new safeguards to match the new surveillance powers our government gained this week.

Peter P. Swire is a visiting professor of law at George Washington University. During the Clinton administration, he chaired a White House Working Group on how to update wiretap laws for the Internet age.

May 04, 2016
Kshama Sawant
It’s Not About Bernie: Why We Can’t Let Our Revolution Die in Philadelphia
Conn Hallinan
Baiting the Bear: Russia and NATO
Joshua Frank
Hanford’s Leaky Nuke Tanks and Sick Workers, A Never-Ending Saga
Paul Craig Roberts
TIPP: Advancing American Imperialism
Ted Rall
Hillary to Bernie Supporters: Don’t Vote for Me!
Eric Draitser
Hillary Clinton and Wall Street’s Neoliberal War on Latin America
Leslie Scott
The Story of Jill Stein: Putting People, Peace and the Planet Before Profits
Ann Garrison
Building the Greens Into a Mass Party: Interview with Bruce Dixon
Tom Clifford
Crying Rape: Trump’s China-Bashing
Lawrence Davidson
Getting Rid of Bad Examples: Andrew Jackson & Woodrow Wilson
Ellen Brown
Bank of North Dakota Soars Despite Oil Bust: A Blueprint for California?
Nelson Valdes
Is Fidel Castro Outside or Part of Mainstream Thinking? A Selection of Quotes
Jesse Jackson
Don’t Send Flint Down the Drain: Fix It!
Nathan Riley
Help Bernie Keep His Halo
Rivera Sun
Remembering Nonviolent History: Freedom Rides
Clancy Sigal
Rachel and the Isolationists: How Maddow Blew It
Laura Finley
Changing the Conversation About “The Woman Card”
CJ Hopkins
Coming this Summer … Revenge of the Bride of Sophie’s Choice
May 03, 2016
Gary Leupp
Hillary Clinton’s Foreign Policy Resumé: What the Record Shows
Michèle Brand – Arun Gupta
What is the “Nuit Debout”?
Chuck Churchill
The Failures of Capitalism, Donald Trump and Right Wing Terror
Dave Marsh
Bernie and the Greens
John Wight
Zionism Should be on Trial, Not Ken Livingstone
Rev. John Dear
A Dweller in Peace: the Life and Times of Daniel Berrigan
Patrick Cockburn
Saudi Arabia’s Great Leap Forward: What Would Mao Think?
Doug Johnson Hatlem
Electoral Votes Matter: Hillary Clinton or Bernie Sanders vs Donald Trump
Chris Gilbert
Venezuela Today: This Must Be Progress
Pepe Escobar
The Calm Before the Coming Global Storm
Ruth Fowler
Intersecting with the Identity Police (Or Why I Stopped Writing Op-Eds)
Victor Lasa
The Battle Rages on in Spain: the Country Prepares for Repeat Elections in June
Jack Rasmus
Is the US Economy Heading for Recession?
Dean Baker
Time for an Accountable Federal Reserve
Ted Rall
Working for US Gov Means Never Saying Sorry
Dave Welsh
Hunger Strikers at Mission Police Station: “Stop the execution of our people”
John Eskow
The Death of Prince and the Death of Lonnie Mack
May 02, 2016
Michael Hudson – Gordon Long
Wall Street Has Taken Over the Economy and is Draining It
Paul Street
The Bernie Fade Begins
Ron Jacobs
On the Frontlines of Peace: the Life of Daniel Berrigan
Louis Yako
Dubai Transit
Bill Quigley
Teacher, Union Leader, Labor Lawyer: Profile of Chris Williams Social Justice Advocate
Patrick Cockburn
Into the Green Zone: Iraq’s Disintegrating Political System
Lawrence Ware
Trump is the Presidential Candidate the Republicans Deserve
Ron Forthofer
Just Say No to Corporate Rule
Ralph Nader
The Long-Distance Rebound of Bernie Sanders
Ken Butigan
Remembering Daniel Berrigan, with Gratitude
FacebookTwitterGoogle+RedditEmail