Wiretapping: Not Always Right and Just, Surprisingly

David Weigel | March 17, 2008

Over at the L.A. Times, reason Contributing Editor Julian Sanchez serves up an exhaustive history lesson about wiretap abuses. The gist: If the executive branch doesn't abuse the powers given to it in the name of national security, "it would be a first."

Political abuse of electronic surveillance goes back at least as far as the Teapot Dome scandal that roiled the Warren G. Harding administration in the early 1920s. When Atty. Gen. Harry Daugherty stood accused of shielding corrupt Cabinet officials, his friend FBI Director William Burns went after Sen. Burton Wheeler, the fiery Montana progressive who helped spearhead the investigation of the scandal. FBI agents tapped Wheeler's phone, read his mail and broke into his office. Wheeler was indicted on trumped-up charges by a Montana grand jury, and though he was ultimately cleared, the FBI became more adept in later years at exploiting private information to blackmail or ruin troublesome public figures. (As New York Gov. Eliot Spitzer can attest, a single wiretap is all it takes to torpedo a political career.)

In 1945, Harry Truman had the FBI wiretap Thomas Corcoran, a member of Franklin D. Roosevelt's "brain trust" whom Truman despised and whose influence he resented. Following the death of Chief Justice Harlan Stone the next year, the taps picked up Corcoran's conversations about succession with Justice William O. Douglas. Six weeks later, having reviewed the FBI's transcripts, Truman passed over Douglas and the other sitting justices to select Secretary of the Treasury (and poker buddy) Fred Vinson for the court's top spot.

"Foreign intelligence" was often used as a pretext for gathering political intelligence. John F. Kennedy's attorney general, brother Bobby, authorized wiretaps on lobbyists, Agriculture Department officials and even a congressman's secretary in hopes of discovering whether the Dominican Republic was paying bribes to influence U.S. sugar policy. The nine-week investigation didn't turn up evidence of money changing hands, but it did turn up plenty of useful information about the wrangling over the sugar quota in Congress—information that an FBI memo concluded "contributed heavily to the administration's success" in passing its own preferred legislation.

On the other hand, the terrorists haven't attacked us since 9/11. (I'd like to pose a little more of the pro-wiretapping argument, but I think that's all there is.)

Comments

Episiarch|3.17.08 @ 9:47AM|#

Holy shit, politicians are corrupt scumbags? Does Eliot Spitzer know about this?

|3.17.08 @ 9:49AM|#

Julian just rules, doesn't he?

|3.17.08 @ 9:50AM|#

Maybe I'm out of the loop, but has there been a proven case where a warrantless wiretap led to thwarting a terrorist plot or breaking up a terrorist ring?

Episiarch|3.17.08 @ 9:51AM|#

Maybe I'm out of the loop, but has there been a proven case where a warrantless wiretap led to thwarting a terrorist plot or breaking up a terrorist ring?

HAHAHAHAHA (wipes tear from eye)

Good one, Lamar.

|3.17.08 @ 9:56AM|#

I think the best argument for wiretapping is that therd is no reasonable right to privacy while talking on the phone (or over the internet). It may feel like talking to someone in the same room, but in fact your words are travelling long distances (over lines or via radio waves) and passing through equipment owned by other people. Is there a right to shout out your window at your neighbor and expect no one to listen in? And if not, how is a phone call different?

Taktix®|3.17.08 @ 9:57AM|#

It may feel like talking to someone in the same room, but in fact your words are travelling long distances (over lines or via radio waves)

Interstate Converse?

Christopher Monnier|3.17.08 @ 10:05AM|#

> On the other hand, the terrorists haven't attacked us since 9/11.

So we've had 6.5 years without any major terrorism attacks in the US. There were certainly longer "terror-free" periods of time prior to the PATRIOT Act and warrantless wiretapping.

|3.17.08 @ 10:06AM|#

Maybe I'm out of the loop, but has there been a proven case where a warrantless wiretap led to thwarting a terrorist plot or breaking up a terrorist ring?

You are out of the loop, Lamar. The people that need to know, do know....and that's all YOU need to know.

The only way to win the war on terror is to assume everyone's a terrorist until they've sufficiently proven that they aren't...by willingly submitting to government agents listening to them.

Why don't you get that?

Abdul|3.17.08 @ 10:07AM|#

Maybe I'm out of the loop, but has there been a proven case where a warrantless wiretap led to thwarting a terrorist plot or breaking up a terrorist ring?

I believe the rationale behind the warrantless wiretap is to collect intelligence, not necessarily to eavesdrop in on "smoking gun" conversations which would let us know exactly which plane is going to be hijacked. Much as in the TV show "the Wire," phone taps allowed police to know which people were involved in which rackets, the warrantless wiretaps would let us know if Abu Sayf is talking to a guy in America and who else the American contact talks to. Presumably, terrorists would be as careful as Baltimore drug dealers when using phones as far as revelaing plans or incriminating evidence goes.

Taktix®|3.17.08 @ 10:16AM|#

Presumably, terrorists would be as careful as Baltimore drug dealers when using phones as far as revelaing plans or incriminating evidence goes.

Yeah, it's not like the last group of terrorist were like, engineers on legal student visas or anything.

Sheesh!

|3.17.08 @ 10:36AM|#

Abdul: I haven't heard of a case where a warrantless tap was a contributing factor to the break up of a terrorist ring or even the arrest of a single suspected terrorist. If there were smoking gun evidence, we would have heard about it. But I haven't even heard of any claims that decent intelligence was gathered.

David Ross|3.17.08 @ 11:22AM|#

It didn't begin with Harding. Try a google on "Ralph van Deman". As with so many other forms of backdoor statist intrusion, this one begins with Woody.

Abdul|3.17.08 @ 11:38AM|#

Lamar,

There's several reasons why we would never hear of successful wiretaps.

1) The wiretap stuff would be background. I doubt we'd hear of it because it just isn't sexy or interesting to know that Indonesian #4 talks to Moroccan #8 who also talks to Morrocan #17.

2)this surveillance is for intelligence, not necessarily criminal cases. It might get relayed to other countries' criminal justice systems for them to use.

3) We don't want the guys we listen to knowing that we tapped their phones or they'll stop using them. So we don't let that information out.

Taktix®|3.17.08 @ 12:12PM|#

Abdul:

1) Don't try to redirect your bullshit. We're talking about domestic wiretaps. We've been able to spy on other countries for a very long time. It's the spying on our own people that we have a problem with.

2) See 1 above.

3) It's not like terrorists are toddlers that we need to hide the cookie jar from. This may surprise you, but there are actually terrorists who read English, an others who read U.S. news through the internet (Google "Translate this Page").

THEY KNOW WE HAVE A WIRETAPPING PROGRAM. IT IS NOT A FUCKING SECRET.

Sorry to get so angry, but I take special case with those that wrap tyranny in a veil of safety.

FUCK YOU.

|3.17.08 @ 12:28PM|#

The problem I am having with Abdul's argument is that there is nothing to say that these warrantless wiretaps have had any impact whatsoever on any investigation even remotely related to terrorism.

|3.17.08 @ 1:29PM|#

"""1) Don't try to redirect your bullshit. We're talking about domestic wiretaps. We've been able to spy on other countries for a very long time. It's the spying on our own people that we have a problem with."""

I don't think people really understand this issue. They keep relating it to foreign activity but that's not really what is going on. The real issue is the governments new ability for unchecked spying on US citizens. They now have that capibility in a manner never before availible as a result of the disputed telco program. That's why Bush wants those lawsuits to disappear. It will lead to the discovery that this is about watching far more than whom they are claiming to watch.

If you create a system that allows the government to spy on its citizens, then remove oversight, the temptation to use it beyond the scope of law will be too much for government to resist.

Why is America spying on its citizens? Because it can. In the 1990s, the concept of government watching you from the cradle to the grave made for some good X-file episodes. But will it make good government in the 21st century?

Guy Montag|3.17.08 @ 1:36PM|#

I kinda 'like' the way the term 'warrantless wiretap' has morphed into a term that actually includes wiretaps that *should* have required a warrant, and then people argue against the ones that should not require one.

No, I am not speaking of Mr. Weigel's post, it is the comments that followed.

Many tons of supplies headed for North Africa were sunk through warrentless wiretaps and wireless taps, decoding and other techniques.

For something closer to home, see the Venona Decrypts. BTW, the ultra-Left was arguing during the cold war against the federal government keeping tabs on the Soviet spy networks in the USA, using the same sort of argument. See the book "Clever Girl" about an in-dept accounting of one case.

That said, I am certainly against wiretaps without warrant against people in the US who are not properly suspect of committing a crime here.

Neu Mejican|3.17.08 @ 1:43PM|#

That said, I am certainly against wiretaps without warrant against people in the US who are not properly suspect of committing a crime here.

Fixed that for you.

|3.17.08 @ 2:43PM|#

That said, I am certainly against wiretaps without warrant against people in the US who are not That said, I am certainly against wiretaps without warrant against people in the US who are not properly suspect of committing a crime here.


That is almost too stupid to respond to. If someone is properly suspect[ed] of committing a crime here, get a goddam warrant! Is that reasoning too arcane for what passes as a brain between your ears?

Guy Montag|3.17.08 @ 2:58PM|#

JsD,

Those are the the ones I do say the government should get a warrant for.

Sorry for the sloppy, rushed comment. The North Africa part was about WWII, Enigma decrypts. Venona would be the Venona Papers, not what I wrote.

Does not seem to matter anyway. Yes, I am the first to say that the government will abuse this capability.

Abdul|3.17.08 @ 3:25PM|#

Tatix,

Calm down.

I was explaining the rationale for the warrantless wiretap program, not supporting it. Lamar seemed genuinely curious as to the rationale.

You're wrong that we're talking about domestic wiretaps. The bills concern international phone calls where at least one party is in the US, not solely domestic calls. In my hypothetical, the Morroccans or Indonesians could be in the US as legal (or illegal) residents or naturalized citizens.

I understand that terrorist suspects know we have a wiretap system. Presumably, escort services and NY governors and former prosecutors know that too. It didn't stop a recent wiretap from leading to a high profile arrest. My point was that law enforcement and intelligence agencies wouldn't want to tip off anyone to the idea that the particular people under suspicion in any particular case have their phones tapped. If terrorists have no reason to suspect that their particular phones are being watched, they'll continue to use them. Even if the terrorists are cautious because they know that a phone can be tapped, we'll know more about their movements and contacts then we did if the terrorists abandoned their tapped phones and got new ones.

None of this really refutes Weigel's point that wiretaps are open to abuse. Nor was it meant to. It merely explains why warrantless wiretaps on calls between international and domestic parties may never have been openly revealed to have cracked a terror case.

|3.17.08 @ 3:44PM|#

in fact your words are travelling long distances (over lines or via radio waves) and passing through equipment owned by other people. Is there a right to shout out your window at your neighbor and expect no one to listen in? And if not, how is a phone call different?

When you send a letter, your written words become the property of the United States Postal Service, and they travel long distances through equipment owned by other people. Why is it that we consider the privacy of a sealed letter to be a basic right, and why is it the Fourth Amendment protects our "papers" against warrantless searches? Because paper was the communications technology when the Constitution was written. So, are you really saying we shouldn't expect privacy in any communication unless we own the service and equipment which enables that communication? Is everyone ready to buy their own road system and telecom infrastructure?

Mike Laursen|3.18.08 @ 12:37AM|#

We don't want the guys we listen to knowing that we tapped their phones or they'll stop using them. So we don't let that information out.

So, that's why we've let everyone know that we're listening to everything all the time. Explain to me again why scary terrorist bad guys who are planning something truly wicked and destructive would chat about their plans over the phone.

Our intelligence community is awfully fond of sitting around in nondescript buildings in the Virginia suburbs playing with expensive supercomputers. Please tell me that the CIA has at least tried to insert a few old-fashioned, flesh-and-blood spies into these terrorist organizations.

Mike Laursen|3.18.08 @ 12:40AM|#

By the way, Abdul, I just felt like writing a grumpy old man yelling at the TV rant, so you don't need to tell me to calm down or anything like that. It's cool.