The Bush administration wants Congress to hurry up and pass its anti-terrorism bill, but while many support the measure, civil libertarians on both the left and the right are balking at the provisions to allocate new powers to federal authorities. Among them are that would make it easier for the government to engage in wiretapping and electronic surveillance.
That Congress is in knots over the surveillance bill is not surprising. For as the journalist David Wise noted in his 1976 book The American Police State—a book far more measured than its title suggests—the constitutionality of wiretapping and bugging () has always been murky. The Constitution, after all, was drafted a century before the invention of the telephone, so any effort to divine the founders' original intent on questions of electronic surveillance will be in vain.
The laws governing electronic surveillance have therefore always been a work in progress. That work started in the late 19th century, shortly after Alexander Graham Bell first rang for Watson. Once the technology was developed, law enforcement authorities wasted little time in putting electronic eavesdropping to use. By the early 20th century, some states, such as Washington, had already discerned an imminent threat to privacy and outlawed official wiretaps.
Still, federal bugs and wiretaps remained legal, and during Prohibition the young FBI Director J. Edgar Hoover used them to hunt bootleggers. In 1927, the FBI relied on evidence obtained though telephone taps to convict a liquor-runner named Olmstead and his accomplices. In court, Olmstead argued that the wiretaps that provided the evidence against him violated the Fourth Amendment's ban on unreasonable search and seizure. But the Supreme Court upheld the conviction, ruling that wiretapping was legal so long as it didn't involve a break-in to plant the tap.
In time, Congress grew concerned about the FBI's power, and after Prohibition's repeal it outlawed all non-consensual wiretapping (but not bugging) as part of the 1934 Communications Act. In 1939, the Supreme Court upheld that law, ruling that since taps were illegal, evidence obtained from using them was inadmissible in court.
Even so, executive officials kept using wiretaps. In particular, Franklin Roosevelt sought to carve out a large exception to the statutory ban. In 1940, he wrote his attorney general, Robert Jackson, that while he accepted the court rulings that upheld the 1934 law, he didn't think those prohibitions applied to "grave matters involving the defense of the nation"—an increasingly high priority as world war loomed. On the contrary, Roosevelt ordered Jackson to proceed with the secret use of "listening devices" (taps or bugs) to monitor "persons suspected of subversive activities … including suspected spies."
Concerned about a German "fifth column" in the United States, Roosevelt specified that his order applied to espionage by foreign agents. But when Harry Truman succeeded FDR in 1945, America's enemies list was changing fast. The next year, as the Iron Curtain fell and the Red Scare flared, Truman's attorney general, Tom Clark, expanded FDR's national security order to permit the surveillance of "domestic subversives." Clark and Truman endorsed wiretapping whenever matters of "domestic security" were at stake, allowing taps to be placed on someone simply because he held radical views.
The next four presidents, with escalating zeal, each made use of taps and bugs, drawing little scrutiny amid the Cold War anxiety. The FBI and CIA monitored all sorts of citizens who were far from subversive. Most famously, under John F. Kennedy and Lyndon Johnson, the FBI eavesdropped on Martin Luther King Jr. on the threadbare rationale that he had Communist ties and posed a security threat. Although the King incident wasn't revealed for years, a backlash against the so-called "national security state" nonetheless began. Itself quite worried, the liberal Warren Court stepped in and in the 1967 Katz case overruled Olmstead, holding that government taps did indeed constitute an unconstitutional search and seizure.
Congress promptly overrode the court. With crime, riots, and protests feeding a craze for law and order—seized on by Richard Nixon in his 1968 presidential campaign—Congress passed the Omnibus Crime Control and Safe Streets Act. The act allowed federal, state, and local authorities to tap phones, provided they first obtained a court warrant.
On the trickier question of national security surveillance, however, the 1968 law, and Nixon's attorney general, John Mitchell, construed it broadly. Mitchell held that the Justice Department was free to tap without a warrant any political dissenters it deemed threats to national security. Given how many Americans were organizing to oppose various government policies in 1969, Mitchell's reading of the law promised to sanction the surveillance of millions of people who agitated against the Vietnam War, championed black radicalism, or engaged in campus protests. On June 19, 1972, the Supreme Court intervened again, ruling in the so-called Keith case that Mitchell's interpretation was invalid. Warrantless taps on domestic groups were illegal, it said, even though the government claimed national security was at stake.
Meanwhile, public tolerance of government wiretapping waned rapidly, abetted by a flood of revelations of. Those disclosures began before Watergate, but it was the investigations into the Nixon administration's surreptitious plots that heightened public cynicism about federal officials. Few could believe that national security was really at stake, whatever the administration's protestations, when Henry Kissinger tapped the phones of speechwriter William Safire or of newspapermen, or when Nixon ordered a tap on his own brother Donald. The discrediting of official justifications for surveillance only accelerated after Nixon's resignation, cementing a widespread impression that government surveillance power did more harm than good.
For two decades, lingering popular wariness forestalled any expansion of wiretapping powers. But after the 1993 World Trade Center bombing, President Clinton, warning of international terrorism, proposed measures similar to those George Bush seeks today. Civil libertarians in Congress refused to pass them, but Clinton redoubled his efforts after the 1995 Oklahoma City bombing, and again after the 1996 Atlanta Olympics bombing. Yet Congress held firm, giving Clinton none of the new wiretapping powers he sought. What the bombings of 1993, 1995, and 1996 failed to achieve, the atrocities of 2001 may bring to fruition.
So will the new bill help fight terrorism or just sacrifice liberties we'll miss when calmer times return? It's impossible to know in advance. Fortunately, our representatives in Washington have devised a good solution: a "sunset" proviso that would cause the current law, whatever its terms, to expire after two years unless renewed. The proviso lets us have it both ways. We can act swiftly to meet the current crisis and preserve our liberties in the long run. It will save us, at least, from repeating the mistakes of history.