FacebookTwitterGoogle+RedditEmail

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:
July 18, 2018
Bruce E. Levine
Politics and Psychiatry: the Cost of the Trauma Cover-Up
Frank Stricker
The Crummy Good Economy and the New Serfdom
Linda Ford
Red Fawn Fallis and the Felony of Being Attacked by Cops
David Mattson
Entrusting Grizzlies to a Basket of Deplorables?
Stephen F. Eisenman
Want Gun Control? Arm the Left (It Worked Before)
CJ Hopkins
Trump’s Treasonous Traitor Summit or: How Liberals Learned to Stop Worrying and Love the New McCarthyism
Patrick Bond
State of the BRICS Class Struggle: Repression, Austerity and Worker Militancy
Dan Corjescu
The USA and Russia: Two Sides of the Same Criminal Corporate Coin
The Hudson Report
How Argentina Got the Biggest Loan in the History of the IMF
Kenn Orphan
You Call This Treason?
Max Parry
Ukraine’s Anti-Roma Pogroms Ignored as Russia is Blamed for Global Far Right Resurgence
Ed Meek
Acts of Resistance
July 17, 2018
Conn Hallinan
Trump & The Big Bad Bugs
Robert Hunziker
Trump Kills Science, Nature Strikes Back
John Grant
The Politics of Cruelty
Kenneth Surin
Calculated Buffoonery: Trump in the UK
Binoy Kampmark
Helsinki Theatrics: Trump Meets Putin
Patrick Bond
BRICS From Above, Seen Critically From Below
Jim Kavanagh
Fighting Fake Stories: The New Yorker, Israel and Obama
Daniel Falcone
Chomsky on the Trump NATO Ruse
W. T. Whitney
Oil Underground in Neuquén, Argentina – and a New US Military Base There
Doug Rawlings
Ken Burns’ “The Vietnam War” was Nominated for an Emmy, Does It Deserve It?
Rajan Menon
The United States of Inequality
Thomas Knapp
Have Mueller and Rosenstein Finally Gone Too Far?
Cesar Chelala
An Insatiable Salesman
Dean Baker
Truth, Trump and the Washington Post
Mel Gurtov
Human Rights Trumped
Binoy Kampmark
Putin’s Football Gambit: How the World Cup Paid Off
July 16, 2018
Sheldon Richman
Trump Turns to Gaza as Middle East Deal of the Century Collapses
Charles Pierson
Kirstjen Nielsen Just Wants to Protect You
Brett Wilkins
The Lydda Death March and the Israeli State of Denial
Patrick Cockburn
Trump Knows That the US Can Exercise More Power in a UK Weakened by Brexit
Robert Fisk
The Fisherman of Sarajevo Told Tales Past Wars and Wars to Come
Gary Leupp
When Did Russia Become an Adversary?
Uri Avnery
“Not Enough!”
Dave Lindorff
Undermining Trump-Putin Summit Means Promoting War
Manuel E. Yepe
World Trade War Has Begun
Binoy Kampmark
Trump Stomps Britain
Wim Laven
The Best Deals are the Deals that Develop Peace
Kary Love
Can We Learn from Heinrich Himmler’s Daughter? Should We?
Jeffrey St. Clair
Franklin Lamb, Requiescat in Pace
Weekend Edition
July 13, 2018
Friday - Sunday
Brian Cloughley
Lessons That Should Have Been Learned From NATO’s Destruction of Libya
Paul Street
Time to Stop Playing “Simon Says” with James Madison and Alexander Hamilton
Jeffrey St. Clair
Roaming Charges: In the Land of Formula and Honey
Aidan O'Brien
Ireland’s Intellectuals Bow to the Queen of Chaos 
FacebookTwitterGoogle+RedditEmail