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October
15, 2001
Marwan
Bishara
Clash
of Civilizations? Hardly
Patrick
Cockburn
Modern
War in
A Medieval Village
October
13, 2001
Carl
Estabrook
Letters
to Editors
Molly
Secours
War:
The Procter and Gamble Perspective
Alexander
Cockburn
War
Can't Save the Economy
October
12, 2001
Imran
Khan
Try
Them in Court
Vijay
Prashad
War
in a Passive Voice
Patrick
Cockburn
Bombing
the Taliban
October
11, 2001
David
Vest
Bob
Dylan and 9/11
Amb.
Edward Peck
Bush
War Plan "Dumb"
Hani
Shukrallah
West
Is As West Does
Patrick
Cockburn
Looming
Humanitarian Crisis
October
10, 2001
Tom
Turnipseed
Earth
is Our "Homeland"
Steve
Perry
What
Is To Be Done?
Simon
Jenkins
The
Dumbest Weapon
Tariq
Ali
The
Pakistan Maelstrom
Cockburn/St.
Clair
The
Empire Strikes Back
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8-Page Special
Issue
Aftermath
Diary
Ashcroft's Onslaught
on
Civil Liberties
Ridge Long Groomed
for
Cheney's Job
Those CIA Killing
Bids
Never Stopped
The Not-So-Great
Mayor Giuliani
Crop Duster
Ban
Will Save Lives
Madeleine Albright's
Deadly Legacy
How the Bin
Laden Women
Fled Bel Air
Tom Ridge's
Vietnam
Same as Kerrey's?
A CounterPunch
Journey
to Ramallah
A Word About
God
Nostrodamus
Jam-maker
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How the CIA's Backing of the Mujahideen Created the World's Most
Robust Heroin Market and Helped to Finance the Rise of the Taliban
and Osama bin Laden
Whiteout:
CIA, Drugs & the
Press
by Alexander
Cockburn
and Jeffrey St. Clair
A Pocket Guide to
Environmental Bad Guys
by James
Ridgeway
and Jeffrey St. Clair
The
Phoenix Program
by Douglas
Valentine
Al
Gore:
A User's Manual
by Cockburn
and St. Clair
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October 24,
2001
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.
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