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Published: Sunday, 5/2/2004

Of wiretaps and civil liberties

COLUMBUS - To many Americans, there is a bright, straight, and very short line between the terrorist attacks of Sept. 11, 2001 and enactment of the USA Patriot Act.

But the political debate now raging over civil liberties versus government surveillance powers can be traced to 1968, when the U.S. Supreme Court ruled that wiretaps deserve constitutional protection, said Peter Swire, a law professor at Ohio State University.

Police officers have to get a court order signed by a judge before they can listen to phone conversations.

In 1978, reacting to the Watergate scandal that led to President Richard Nixon's resignation, Congress approved the Foreign Intelligence Surveillance Act.

"Until then, the President claimed the power to do wiretaps for national security without any judge being involved," said Mr. Swire, who was President Bill Clinton's chief counsel for privacy from March, 1999, until January, 2001. "The civil liberties people said you had to get a judge in open court to decide on the wiretaps."

The Foreign Intelligence Surveillance Act was an attempt at a compromise - judges would rule on "national security" wiretaps, but they would do so secretly and the targets don't get notice of the wiretap even after the fact.

In 1986 Congress passed a law, known as the Electronic Communications Privacy Act, that provided the first rules to protect e-mail from government surveillance - but they weren't as strict as the protections for phone calls.

In the summer of 2000, President Bill Clinton's chief of staff asked Mr. Swire to chair a White House working group on how to update electronic surveillance law for the Internet Age.

A dozen federal agencies were involved, scrutinizing federal laws that referred to "hardware devices" that might not apply to computer software.

The result was legislation that the Clinton administration proposed to update surveillance powers and privacy protections. It did not, however, become law.

The Clinton White House considered proposals to expand the government's surveillance powers, but decided those changes were not justified, Mr. Swire said.

"When Sept. 11 happened, all the bureaucrats took their pet proposals out of their filing cabinets, including many that had been rejected previously by Congress or by the White House. They sent them to the Justice Department, which did a quick cut-and-paste job and proposed the Patriot Act a week after the attacks," Mr. Swire said.

Despite the Bush administration's pressure on Congress to take swift action, U.S. Sen. Patrick Leahy of Vermont and U.S. Rep. Dick Armey of Texas were key in requiring that the Patriot Act be up for review in four years. That debate will happen next year.

The Clinton administration had proposed that the same surveillance rules should apply to e-mails as telephone calls. If police break the wiretap standards, then they shouldn't be allowed to use what they found out in court, Mr. Swire said.

That provision is not in the Patriot Act, which Mr. Swire said roughly doubled to tripled the government's surveillance authorities and omitted expanded privacy protections for citizens.

If re-elected, the Bush Administration will push for renewal of the Patriot Act "as is," Mr. Swire said. A week after the furor over the book by Richard A. Clarke, former head of counterterrorism at the National Security Council, Mr. Bush chose his Saturday radio address to push for renewal, echoing several speeches by U.S. Attorney General John Ashcroft.

"I think their view is every comma is precious and perfect," according to Mr. Swire.

Several provisions of the Patriot Act have proved effective, but some changes are needed, Mr. Swire.

A section of the Patriot Act gives the federal government access to any "tangible" thing and overrules several privacy protections in other federal laws, including those protecting medical and library records.

"What is going on here is a big expansion of the secret wiretap authority from 1978 into a much broader secret search authority for any tangible thing, and with no notice to the target or the subject, even after the fact. So the risk is one of many secret searches in the name of national security and the safeguards are not good," Mr. Swire said.

Another debate will focus on the "collapse of the wall" between law enforcement and national security investigations.

Before the Patriot Act, federal law said surveillance could proceed if the "primary purpose" of the investigation was foreign intelligence. The Patriot Act changed that to "significant" purpose, but a 2003 ruling by the Foreign Intelligence Surveillance Act appeals court further weakened that standard, Mr. Swire said.

In addition to the risks to civil liberties, there also is a risk to intelligence-gathering because U.S. attorneys - bent on nailing down cases beyond a reasonable doubt - will want to use national-security searches in ways that "ultimately will compromise our intelligence sources," Mr. Swire said.

Congress passed the Foreign Intelligence Surveillance Act in 1978 - giving judges the power to rule on "national security" wiretaps - because the CIA, FBI, and military systematically had violated federal surveillance laws.

A book published in the 1970s on that topic, The Lawless State, documented how unchecked executive power had been and would be abused.

"The Bush administration is trying to move back to unfettered executive discretion. Their approach is to say, 'Trust us. We are fighting the terrorists.' It's a lot like J. Edgar Hoover saying, 'Trust us, we're fighting the communists.'

"Most people in the surveillance agencies are Americans of impeccable character and good intentions, but we need a system of checks and balances to prevent us from seeing those massive abuses once again," Mr. Swire said.



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