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Civil Rights: Let 'Em Wiretap!

At the moment, the House and Senate have hatched different versions of anti-terrorism bill. Both bills would let government agents procure just one warrant to wiretap a person regardless of the phone he uses. (Currently, warrants apply only to individual phones.) Both would let the government monitor the e-mail addresses to which users send messages, without first getting a warrant. Both would ease the standard officials have to meet in order to monitor suspected terrorists overseas.

Where they differ is over a so-called sunset provision, which would force Congress to renew the law or have it expire. The House version includes the provision, the Senate's doesn't. The House is in the right. For in the past the curtailment of civil liberties during emergencies has followed a pattern: hysteria followed by crackdown followed by regret.

Wiretapping has an especially complicated history, since, as the journalist David Wise noted in his excellent 1976 book The American Police State-which is far more measured than its title suggests-the constitutionality of wiretapping and bugging has always been murky. (Although sometimes used interchangeably, they're not the same thing. Wiretapping is the interception of telephone conversations. Bugging refers to the planting of hidden microphones to eavesdrop on face-to-face conversations in a given room.) 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.

Thus, the laws governing electronic surveillance have always been a work in progress. After the telephone's invention, law enforcement authorities wasted little time in putting electronic eavesdropping to use. By the early 20th century, some states, such as Washington, had already outlawed official wiretaps.

Still, federal bugs and wiretaps remained legal. 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. 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 was ambiguous. Lawmakers specified that they did not mean to circumscribe the president's authority to protect the nation against foreign threats, nor to prevent him from securing vital foreign intelligence information, nor deter him-and this is the critical language-from"protect[ing] national security information against foreign intelligence activities." But this vague wording could be construed to mean one of two things: either that the president did not, in fact, need a warrant to engage in wiretapping where foreign threats were involved or, alternately, that Congress simply wasn't legislating on the question of national security wiretapping at all.

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 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 Big Brother-like monitoring of private citizens. Those disclosures began before Watergate. In January 1970, an Army captain disclosed a military intelligence program that targeted political activists. And in March 1971, a raid on an FBI office"liberated" files detailing spying on black radicals and student groups.

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. In November 1974, the Justice Department released a report detailing FBI efforts against left-wing U.S. citizens, called Counterintelligence Program, or COINTELPRO. The next month, New York Times reporter Seymour Hersh exposed a massive CIA campaign against the anti-war movement, in explicit violation of the organization's charter. And in 1975 various congressional committees unearthed a range of stories of government officials using surveillance for political and personal reasons. The upshot was to cement 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. Which is precisely why the sunset provision is an ingenious innovation. It 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.

An earlier draft of this article appeared on Slate.com.