Secret Wiretaps

WHEN GOVERNMENT WIRETAPS FIRST CAME
before the Supreme Court in 1928, Justice Louis Brandeis warned of the impact of technology on government spying, "Discovery and invention have made it possible for the Government by means more effective than stretching upon the rack to obtain disclosure in court of what is whispered in the closet. The progress of science, in furnishing the government with means of espionage is not likely to stop with wire tapping." Some excerpts from our coverage of wiretaps, legal and illegal:

The only question to be decided by the Supreme Court was: Is the Fourth Amendment of the U. S. Constitution violated by using evidence obtained through wiretapping in a criminal case? ... The dissenting opinions of that distinguished pair of liberal scholars, a Jew and a Yankee, Louis Dembitz Brandeis and Oliver Wendell Holmes, were as vitriolic as any ever read into the records of the Supreme Court.
From Vitriolic Dissent
Jun. 18, 1928

While Section 605 has sat lumpishly on the books, serving mainly to bar wiretap evidence in federal courts, wiretapping has flourished. Technology has kept up with demand. Today a good tap sets up so little interference in the line that users do not hear it. A tapper can rig up a tape recorder and leave the scene, returning only once a day to change the tape. Induction apparatus makes it possible to tap a wire without hooking into it or even touching it. The two biggest wiretapping agencies in the U.S. are the FBI, which on an average day has between 150 and 200 taps working, and the New York City Police Department.
From The Debate on Wiretapping
Jan. 4, 1954

Although wiretapping goes back to the early days of the telegraph, Congress did not get around to giving law-enforcement officials statutory authority to engage in such snooping until last year. The Omnibus Crime Control Act of 1968 expressly legalized electronic eavesdropping for the first time in investigations of such serious crimes as treason, robbery and murder—provided the authorities first obtain a court warrant. During his presidential campaign, Richard Nixon said that he would take full advantage of the new law—a promise that raised fears of a massive invasion of privacy.
From The New Line on Wiretapping
Jul. 25, 1969

After years of confusion over the legalities of electronic eavesdropping, Congress attempted to set rules in the Omnibus Crime Control Act of 1968. Law-enforcement agencies were permitted to wiretap in ordinary criminal cases, provided they first obtained a court-approved warrant. Under the Fourth Amendment to the Constitution, such warrants require "probable cause"—proof that officials are probing with specific evidence of a crime, not just trying to trap possible wrongdoers. The 1968 law, though, did not limit the President's power 'to obtain foreign intelligence information deemed essential to the security of the United States.'
From Overruling Mitchell
Apr. 19, 1971

In a one-minute address, [House Democratic Leader Hale] Boggs broke the desultory parliamentary doings with a harsh challenge to the reputation of one of Washington's most powerful institutions—J. Edgar Hoover's FBI. Boggs: 'When the FBI taps the telephones of members of this body and members of the Senate, when the FBI adopts the tactics of the Soviet Union and Hitler's Gestapo, then it is time that the present director no longer be the director.'
From Bugging J. Edgar Hoover
Apr. 19, 1971

When he was sworn in as Attorney General more than three years ago, John Mitchell vowed that a major goal during his tenure at the Justice Department would be a systematic crackdown on organized crime and the narcotics traffic. Since then, the Government has made an impressive attempt to keep Mitchell's promise, bringing indictments against 4,934 supposed evildoers since 1969. But some of that accomplishment will apparently be undone because Mitchell failed to observe the law governing the authorization of wiretaps. As many as 1,000 defendants could have their cases thrown out of court as a result of improper procedures in the Attorney General's office. Says one Justice Department official: 'This is the biggest goof-up we've ever had.'
From Wiretapping Wipe-Out
Mar. 27, 1972

About three years ago, according to four different sources in the Government, the White House was concerned by a series of leaks, so it asked Hoover to tap the phones of suspected reporters and even suspected White House officials. Hoover balked, and demanded authorization from John Mitchell, then the U.S. Attorney General Mitchell sanctioned the surveillance, according to the sources, on the grounds of domestic "security," which sidestepped the necessity of getting a court order for each tap. The operation started with only one tap, but soon expanded to include surveillance of six or seven reporters plus an undisclosed number of White House aides.
From Questions About Gray
Mar. 5, 1973

The Nixon White House had wanted the FBI and CIA to be both more aggressive and more malleable to presidential control. Ironically, Watergate has brought both agencies under closer congressional scrutiny. The likely result will be a curtailment of their activities and of White House control. Balancing the priorities of individual liberties and national security has always posed a problem for free nations, but the Watergate scandal suggests the scale is now out of tilt. Indeed, the entire internal and external security apparatus of the United States seems due for review.
From Snoopers Due for Review
Jun. 4, 1973

A former Nixon speechwriter, William Safire, wrote his first real criticism of Nixon in his new post as columnist for the New York Times. The statement, complained Safire, portrays 'a U.S. President acting as angry spymaster' and raises a troubling question: 'At what point does the defense of our system corrupt our system?'
From Nixon's Thin Defense: The Need for Secrecy
Jun. 4, 1973

What exactly is the national security, and how much invasion of privacy can be justified in its behalf? How much secrecy is really necessary? The difficult debate over individual rights v. the common good dates from the earliest days of the republic. Still, the fact that most of the fights over repression, loyalty oaths and the stifling of dissent are so long forgotten is an indication that in most cases the tumult was out of all proportion to the mouse that squeaked defiance.
From The Limits of Security and Secrecy
Jun. 18, 1973
By William E. Smith

Dean contended that the Watergate wiretapping operation was known in the White House by Chief of Staff Haldeman before the June 17 arrests—and since Haldeman regularly reported fully to the President, Dean 'assumed' Nixon could have known. He said that he did not know firsthand, however, whether Nixon did, in fact, have such advance knowledge.
From Dean's Case Against the President
Jul. 9, 1973

The Senate report offers a bit of bitter justice to Richard Nixon. Among the Watergate revelations that undid him were his Administration's use of the FBI to wiretap Administration officials and newsmen, and his forestalling, for a time, the FBI investigation of the bugging of Democratic National Committee headquarters. The Senate committee reports that precedents for abuse of the agency were firmly established by Hoover under Democrats F.D.R., L.B.J. and J.F.K.
From Hoover's Political Spying for Presidents
Dec. 15, 1975

It did not matter that much of the information had already been released —or leaked—to the public. The effect was still overwhelming: a stunning, dismaying indictment of U.S. intelligence agencies and six Presidents, from Franklin Roosevelt to Richard Nixon, for having blithely violated democratic ideals and individual rights while gathering information at home or conducting clandestine operations abroad.
From Nobody Asked: Is It Moral?
May 10, 1976

Until quite recently, cryptography -- the science of making and breaking secret codes -- was, well, secret. In the U.S. the field was dominated by the National Security Agency, a government outfit so clandestine that the U.S. for many years denied its existence. The NSA, which gathers intelligence for national security purposes by eavesdropping on overseas phone calls and cables, did everything in its power to make sure nobody had a code that it couldn't break.
From Who Should Keep the Keys?
By Philip Elmer-DeWitt
Mar. 14, 1994

The National Security Agency's supercomputers can sort through intercepted phone calls with lightning speed. Even clandestine agents overseas can have instant access to CIA officials in the U.S. by using cellular phones. But until last year, the White House had to depend on the 'pizza truck' for all this intelligence--even during a fast-breaking crisis.
From Spies in Cyberspace
By Douglas Waller
Mar. 20, 1995

The U.S. spends more than 90% of its $35 billion annual intelligence budget on spying gadgetry rather than on gathering human intelligence, and most of that money goes not to the CIA but to spy agencies within the Department of Defense, such as the National Security Agency (which does eavesdropping and code breaking) and the National Reconnaissance Office (which flies imagery satellites).
From Can We Stop The Next Attack?
By Massimo Calabresi and Romesh Ratnesar
Mar. 11, 2002

The 'spy court' usually makes its rulings in secret. But one decision has so riled the Bush Administration that it is loudly airing an appeal. The court is a federal judicial panel that approves requests for wiretaps and searches in espionage and terrorism cases to ensure conformity to the 1978 Foreign Intelligence Surveillance Act (FISA), a reform intended to keep the FBI from abusing its power and, say, targeting peaceful dissenters.
From No Way To Secure A Homeland?
By Elaine Shannon
Sep. 02, 2002

The Patriot Act gave the government wider leeway by expanding the 1978 Foreign Intelligence Surveillance Act (FISA), legislation that created secret courts to review applications for domestic wiretaps and searches in the name of national security.
From Checking What You Check Out
By Michele Orecklin
May 12, 2003

In 2002 he [George Bush] issued a secret Executive Order to allow the NSA to eavesdrop without a warrant on phone conversations, e-mail and other electronic communications, even when at least one party to the exchange was in the U.S.--the circumstance that would ordinarily trigger the warrant requirement. For four years, Bush's decision remained a closely guarded secret.
From Has Bush Gone Too Far?
By Richard Lacayo
Jan. 09, 2006

Sure, Judge Taylor struck down the program, dealing a third judicial blow to the President's claim of expansive war powers. The opinion comes two months after the Supreme Court rejected the Administration's version of "due process lite" for detainees at Guantanamo Bay, and a month after a San Francisco judge allowed a lawsuit against AT&T for allegedly collaborating in the eavesdropping program. But Taylor's opinion is remarkably thin on legal reasoning, leaving it vulnerable to getting reversed.
From Why the Wiretapping Ruling Is Vulnerable
By Reynolds Holding
Aug. 18, 2006

The surprise ruling Ń in which Judge Anna Diggs Taylor said it was "never the intent of the framers to give the President such unfettered control" Ń raised new questions about the broad authority President Bush has claimed since the Sept. 11 attacks for secret new intelligence programs.
From The Wiretapping Decision: Legal Blow or Political Boon?
By Brian Bennett and Timothy J. Burger
Aug. 17, 2006

Sure, Judge Taylor struck down the program, dealing a third judicial blow to the President's claim of expansive war powers. The opinion comes two months after the Supreme Court rejected the Administration's version of "due process lite" for detainees at Guantanamo Bay, and a month after a San Francisco judge allowed a lawsuit against AT&T for allegedly collaborating in the eavesdropping program. But Taylor's opinion is remarkably thin on legal reasoning, leaving it vulnerable to getting reversed.
From Why the Wiretapping Ruling Is Vulnerable
By Reynolds Holding
Aug. 18, 2006

When then-White House counsel Alberto Gonzales went to John Ashcroft's hospital room on the evening of March 10, 2004 to ask the ailing Attorney General to override Justice Department officials and reauthorize a secret domestic wiretapping program, he was acting inappropriately, Ashcroft's deputy at the time, James Comey, testified before Congress earlier this week.
From Was Gonzales' Emergency Visit Illegal?
By Massimo Calabresi
May 17, 2007


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