FacebookTwitterRedditEmail

New Anti-Terrorism Law Poses Old Risks

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.

More articles by:
bernie-the-sandernistas-cover-344x550
Weekend Edition
December 06, 2019
Friday - Sunday
Jeffrey St. Clair
Eat an Impeachment
Matthew Hoh
Authorizations for Madness; The Effects and Consequences of Congress’ Endless Permissions for War
Jefferson Morley
Why the Douma Chemical Attack Wasn’t a ‘Managed Massacre’
Andrew Levine
Whatever Happened to the Obama Coalition?
Paul Street
The Dismal Dollar Dems and the Subversion of Democracy
Dave Lindorff
Conviction and Removal Aren’t the Issue; It’s Impeachment of Trump That is Essential
Ron Jacobs
Law Seminar in the Hearing Room: Impeachment Day Six
Linda Pentz Gunter
Why Do We Punish the Peacemakers?
Louis Proyect
Michael Bloomberg and Me
Robert Hunziker
Permafrost Hits a Grim Threshold
Joseph Natoli
What We Must Do
Evaggelos Vallianatos
Global Poison Spring
Robert Fantina
Is Kashmir India’s Palestine?
Charles McKelvey
A Theory of Truth From the South
Walden Bello
How the Battle of Seattle Made the Truth About Globalization True
Evan Jones
BNP Before a French Court
Torsten Bewernitz – Gabriel Kuhn
Syndicalism for the Twenty-First Century: From Unionism to Class-Struggle Militancy
Matthew Stevenson
Across the Balkans: From Banja Luka to Sarajevo
Thomas Knapp
NATO is a Brain Dead, Obsolete, Rabid Dog. Euthanize It.
Forrest Hylton
Bolivia’s Coup Government: a Far-Right Horror Show
M. G. Piety
A Lesson From the Danes on Immigration
Ellen Isaacs
The Audacity of Hypocrisy
Manuel García, Jr.
From Caesar’s Last Breath to Ours
Binoy Kampmark
Going to the ICJ: Myanmar, Genocide and Aung San Suu Kyi’s Gamble
Jill Richardson
Marijuana and the Myth of the “Gateway Drug”
Muzamil Bhat
Srinagar’s Shikaras: Still Waters Run Deep Losses
Gaither Stewart
War and Betrayal: Change and Transformation
Farzana Versey
What Religion is Your Nationalism?
Clark T. Scott
The Focus on Trump Reveals the Democrat Model
Monika Zgustova
Chernobyl, Lies and Messianism in Russia
Kollibri terre Sonnenblume
Do Bernie’s Supporters Know What “Not Me, Us” Means? Does Bernie?
Peter Harley
Aldo Leopold, Revisited
Winslow Myers
A Presidential Speech the World Needs to Hear
Christopher Brauchli
The Chosen One
Jim Britell
Misconceptions About Lobbying Representatives and Agencies
Ted Rall
Trump Gets Away with Stuff Because He Does
Mel Gurtov
Hong Kong, Xinjiang, and the Insecurity of China’s Leadership
Nicky Reid
Dennis Kucinich, Tulsi Gabbard and the Slow Death of the Democratic Delusion
Tom H. Hastings
Cross-Generational Power to Change
John Kendall Hawkins
1619: The Mighty Whitey Arrives
Julian Rose
Why I Don’t Have a Mobile Phone
Elliot Sperber
Class War is Chemical War
December 05, 2019
Colin Todhunter
Don’t Look, Don’t See: Time for Honest Media Reporting on Impacts of Pesticides
Nick Pemberton
Gen Z and Free Speech
Bob Lord
The U-Turn That Made America Staggeringly Unequal
FacebookTwitterRedditEmail