In the wake of the bombing at Atlanta’s Centennial Park during the Olympic Games, President Clinton asked for quick congressional action on a package of measures meant to assist in the fight against terrorism. Wary of expanding federal law-enforcement authority–particularly in light of the recent revelations about the White House abuse of FBI files–Congress balked and then recessed with the matter unresolved.
In an atmosphere of crisis, proposals such as this deserve special scrutiny to make sure they aren’t based on judgments warped by panic or outrage. And it’s not clear that any of the ideas would have prevented the Atlanta bombing, whose perpetrator remains unknown.
Civil-liberties groups have been especially critical of the administration’s proposals dealing with electronic surveillance. On one important issue, the reservations are amply justified. But many of the other measures offered by the president would help law enforcement without eroding privacy.
The big mistake in the Justice Department’s proposal is its request to allow wiretaps not just on serious terrorism-related crimes such as homicides and arsons, but on any federal felony “when there is a nexus to terrorist activity.”
That is a fundamental change that would vastly expand the range of offenses subject to electronic surveillance, based purely on conjectures about some supposed “nexus” to terrorism. The vagueness and breadth of the measure practically invite abuse by overzealous federal agents.
More modest measures, however, should not provoke significant concern. The administration proposes to allow “roving wiretaps” that let law-enforcement agencies monitor a suspected terrorist even if he never uses the same phone twice.
Right now, the government can’t get a warrant for such a wiretap unless it can show that the subject is changing phones (say, by using a briefcase full of cellular phones) purely to elude surveillance. (If he’s merely trying to defraud the phone company, the government is out of luck.) This change would merely conform the law on roving wiretaps to that on roving microphone interceptions–which are much easier to obtain even though they are far more intrusive. If it’s permissible in a criminal investigation to monitor a suspect’s calls on one phone, it’s hard to see why he should be exempt on a second line.
The administration also wants to slightly loosen the restrictions on gadgets known as pen registers and trap-and-trace devices, which record not conversations but merely the phone numbers called and received on a particular phone. In an ordinary criminal investigation, these can be installed without a warrant. Only in cases involving national security is a warrant required. The proposal would treat national security cases the same.
By tossing all manner of cases into the terrorism net, the Clinton administration has provoked fears that its package would threaten privacy and individual liberty. But with that one exception, it has offered a sensible and prudent blueprint for enhancing the government’s ability to fight terrorists.
