Friday, January 13, 2006

While You Were Talking.....

January 13, 2006
Op-Ed Contributor
The Bugs in Our System

CAN we trust claims that the unregulated monitoring of telephone conversations by the executive branch does not threaten our privacy because the president has authorized spying only upon people linked to terrorist groups? One answer can be found in a little-remembered domestic spying scandal that took place four decades ago during the Johnson administration.

In the spring of 1954, Herbert Brownell, President Eisenhower's attorney general, sent a confidential memorandum to J. Edgar Hoover, director of the Federal Bureau of Investigation. Prompted by a recent Supreme Court decision "denouncing the use of microphone surveillances by city police in a gambling case," the memorandum authorized the F.B.I. to conduct "microphone surveillance" in national security investigations. Brownell even approved trespassing on private property to plant electronic bugs because "for the F.B.I. to fulfill its important intelligence function, considerations of internal security and the national safety are paramount and, therefore, may compel the unrestricted use of the technique."

The claim of authority to install illegal bugs was significant. From 1928 to 1967, Supreme Court decisions permitted wiretapping of telephone lines if the device could be installed without a trespass into a home or other private area; since 1940, administrations could use this as one basis to tap the telephones of "suspected spies," but not to bug their homes.

Brownell acknowledged that Supreme Court justices had been "outraged" that police officers had installed a microphone in a bedroom in a criminal case. But he assumed that the executive branch had expansive power to spy in national security investigations and authorized intrusions into even this "intimate location" if necessary to obtain "important intelligence or evidence relating to matters connected with the national security." Although Brownell's memorandum was written years before the Supreme Court and Congress imposed the current constitutional and legislative limits on electronic surveillance, it still distinguished between national security investigations and traditional criminal law enforcement.

In the decade after this authorization, the F.B.I. installed hundreds of electronic bugs and a large percentage were in criminal investigations having nothing to do with Communists, the cold war or the nation's foreign enemies. One figured prominently in the scandal that erupted during Lyndon Johnson's presidency.

In 1966, an influential Washington lobbyist named Fred Black asked the Supreme Court to reverse his conviction for tax evasion. The case was potentially embarrassing to President Johnson because Black was an associate of Bobby Baker, a Johnson protégé. Before Black's legal proceedings were resolved, Solicitor General Thurgood Marshall advised the Supreme Court that as part of an unrelated criminal investigation, F.B.I. agents had illegally installed microphones in Black's hotel suite and recorded conversations between Black and his lawyers, and that prosecutors in the tax case had unknowingly received information from those bugs. Although Marshall argued that prosecutors had not used that information against Black, the Supreme Court ordered the Johnson administration to submit a report explaining the source of the F.B.I.'s authority to conduct this electronic surveillance.

The court's order provoked intense press coverage and a high-stakes political battle involving Johnson, Hoover and Senator Robert F. Kennedy of New York. In an effort to force the Justice Department to report that Kennedy had approved the bugging during his tenure as attorney general, Hoover lobbied within the Johnson administration and leaked information to the press. Kennedy, however, explicitly denied that he had approved the illegal electronic surveillance of Black or others.

Kennedy was vindicated when the Justice Department report submitted to the Supreme Court by Attorney General Nicholas deB. Katzenbach named Hoover as the person who had authorized the illegal bugging. Although Hoover claimed that every recent administration had informally approved the practice, only the 1954 Brownell memorandum documented an explicit grant of authority for the illegal installation of electronic bugs. The F.B.I. had turned an administration's assertion of authority to eavesdrop on the nation's enemies into a justification for listening to private conversations unrelated to national security.

The Supreme Court reversed Fred Black's conviction. At his second trial, Black was acquitted. Within months of telling the Supreme Court that Hoover had authorized the bugging, Katzenbach resigned as attorney general. He later said, "I could no longer effectively serve as attorney general because of Mr. Hoover's obvious resentment of me."

But the fundamental issue was not who would win these power struggles or even which official had authorized the illegal bugging. It was that an executive branch agency had engaged in domestic spying free from any oversight by other government institutions. The courts and Congress soon acted. In 1967, the Supreme Court decided two cases imposing Fourth Amendment restrictions on electronic surveillance. One opinion cited the Black case in a discussion of bugging for "prosecutorial purposes." In 1968, Congress enacted a statute that established comprehensive restrictions on wiretapping and electronic surveillance - including a judicial warrant requirement.

This bit of history shows how, unregulated by either the courts or Congress, the F.B.I. was free to expand a grant of authority to combat our cold war enemies into a license to spy on ordinary citizens. With an unchecked executive branch, we should fear that similar abuses may be occurring today, in our war on terrorism.

Morgan Cloud is a law professor at Emory University.

January 13, 2006
Op-Ed Contributor
Back When Spies Played by the Rules
PRESIDENT Bush's ordering the National Security Agency to eavesdrop on Americans without warrants contradicts a long evolution toward the secrecy of communications. Centuries ago, people in England, France and the German states fought for the right to send letters without their being opened by the "black chambers" of absolutist monarchs. Martin Luther, whose letters had been opened by the Duke of Saxony, raged that "a thief is a thief, whether he is a money thief or a letter thief."

Regulations called for postal secrecy in 1532 and 1573 in Austria's Tyrol, in Prussia in 1685, in the oath of succession taken in 1690 by the Holy Roman emperor Joseph I and in his postal regulation of 1698. Rulers ignored them. Like Britain's Oliver Cromwell, who saw the post as "the best means to discover and prevent many dangerous and wicked designs against the Commonwealth," they justified letter-opening.

It sometimes worked. In 1723, Bishop Francis Atterbury was exiled, partly on the basis of intercepted letters, for trying to put a pretender on Britain's throne. Monarchs got information from their "black chambers" - secret rooms in post offices in main cities into which the mail was brought for opening.

London's was in Abchurch Lane, near St. Paul's. Black chambers resembled laboratories. Kettles spouted steam to soften wax seals. Experts took impressions of seals with a soft amalgam to make new ones in case they broke the originals while sliding hot wires under them. Specialists slid thin batons with a long slit into envelopes and twirled letters around them so they could be extracted without breaking the seals.

Austria's black chamber was reputed to be the most efficient. Sacks of diplomatic mail arrived at 7 a.m., the letters unsealed and read, the important parts copied, sometimes by dictation, the letters replaced and resealed and sent to the embassies by 9:30. The employees sometimes erred, however. When the British ambassador in Austria complained that he was getting copies instead of originals, the prime minister, Metternich, coolly replied, "How clumsy these people are!"

But the public knew about the letter-opening and hated it. The pre-revolutionary French assembly, the Estates-General, received complaints from all regions of France and from all classes of society about this invasion of their thoughts. A month after the fall of the Bastille, Article 11 of the Declaration of the Rights of Man held that citizens may write with freedom - in effect nullifying the right of the government to read letters. In the United States, the 1792 law establishing the Post Office forbade its agents from illegally opening the mail entrusted to it. This grew out of the Constitution's Fourth Amendment, prohibiting unreasonable searches. Of course, judges could issue warrants to read letters, just as they could allow law officials to enter a house.

Curiously, an absolutist monarchy was the first state to enact a law specifically punishing letter-opening. "Whoever opens the letter of another without his will and without special permission faces three to 14 days of prison," read Article 1370 of Prussia's General Law of 1794. Other states of Germany and elsewhere in Europe followed.

British laws in 1711 and 1837 empowered the government to issue warrants to read mail. Then, in 1844, the Italian revolutionary Giuseppe Mazzini, during a stay in England, learned that his letters had been opened without a proper warrant. Parliament exploded. The great historian Macauley defied the government to differentiate "between a letter of his being taken from him when in the post office and a letter taken out of his desk." Britons, he said, "would rather take the risk of great crimes being committed, than owe their security to that system or those means, which would destroy the manly spirit of the people, on which more reliance could be placed than all the schemes and decrees that could be invented for maintaining their greatness and independence as a nation." The uproar was channeled into a long report, and the liberal winds of the 1840's blew down the black chambers in Britain and most of the Continent.

Throughout the 20th century, many nations (including the United States) continued to intercept diplomats' messages, but most seem to have stopped reading their citizens' mail. Not totalitarian governments, though. Article 128 of the 1936 Constitution of the Soviet Union guaranteed the privacy of correspondence, but the Soviet government read private mail. And although Germany's Weimar Constitution declared in Article 117 that "Privacy of correspondence, of mail ... are inviolable," Hermann Göring's intelligence bureau eavesdropped on conversations from a converted Berlin apartment house whose basement housed ranks of clattering teletypewriters.

After World War II, nations paid at least lip service to letter secrecy. Article 12 of the Universal Declaration of Human Rights, signed by many countries, holds that "no one shall be subjected to arbitrary interference with his ... correspondence." Not all keep their word.

David Kahn is the author of "The Codebreakers" and "The Reader of Gentlemen's Mail," a biography of the cryptologist Herbert O. Yardley.

Copyright 2006The New York Times Company

Copyright 2006The New York Times Company


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