SAFETY FIRST, PART TWO: Revamping The Statutory Tools To Combat Terrorism

By BARTON ARONSON

Monday, Oct. 08, 2001

This is Part Two of a two-part series by FindLaw columnist Bart Aronson on the security issues raised by the September 11 attacks. Part One in the series addressed the security of our borders and skies. – Ed.

In the wake of September 11's terrorist attacks, the Department of Justice has sought revisions in a range of statutory tools used to combat crime generally and terrorism in particular. What is most striking about many of the reforms, however, is how necessary they would be even if September 11 had passed as just another beautiful fall day. Revamping the laws on information sharing and electronic surveillance has been an urgent matter for years.

These changes are really of two types. First, on a meta-level, there is the question of information sharing. We presently limit information sharing between the law enforcement communities on the one hand and the national security community on the other; the Bush Administration is seeking to poke some selected holes in that firewall.

Second, on a more mundane level, the law enforcement community is trying to update the rules governing how we collect evidence, especially communications-related evidence, to catch and prosecute criminals.

The FBI and CIA: A Brick Wall or a Chain Link Fence?

There are good reasons for limiting the free flow of information between the spies and the cops. We don't want the government spying on its own citizens. And the methods used for gathering information related to national security are frequently unacceptable under our Constitution. As a result, we severely limit the ability of the CIA to operate within our borders.

On the other hand, the cops operate under Constitutional rules highly solicitous of their targets' rights. Grand jury testimony, for example, is supposed to be secret, and therefore is not routinely given to the CIA. Cops should not be in the business of working for the CIA and justifying that work with a domestic law enforcement gloss.

This debate would benefit by taking account of the reasons for collecting, safeguarding, and sharing information, instead of focusing narrowly on who generated it. For example, one reason the CIA does not provide information to the FBI is that the Agency's methods wouldn't pass muster in court; if the information is then used by the Bureau as the basis for seeking additional evidence, all the evidence may be tainted to the point of inadmissibility when the government seeks to introduce it at trial. Bolstering this limitation is a desire not to have intelligence "fed" to local authorities who can initiate prosecutions.

Illegally gathered evidence is nonetheless important, in ways that are actually protective of defendants. The government can use such evidence to ensure that its legally gathered evidence is pointing in the right direction.

The problem here is a common, practical one: how does the government ensure that its evidence is gathered legally? That's a problem in any case: if the prosecution can't prove the evidence it seeks to admit is untainted, the court will throw it out.

But that doesn't solve the prior question: can the CIA share it with the FBI? The information already exists; it is already known to the government; sharing it with another secure law enforcement agency does not involve any greater invasion of privacy.

Moreover, such sharing improves the accuracy of prosecutions, without enabling the government to introduce unconstitutionally gathered evidence at trial. These are the sorts of circumstances in which breaching the barriers between the spies and the cops makes sense.

Who May I Say is Calling?

Perhaps the best known example of long-needed revisions in our nation's crime fighting arsenal involves electronic surveillance. Simplifying greatly, when police want to search a house, they have to persuade a judge that there is probable cause to believe that there is evidence of crime inside the house. When they want to "search" a telephone line, they have to persuade a judge that it's being used by criminals in ways that yield evidence of crime (Lefty has been ordering hits along with his lunch, for example, or directing drug shipments).

When the wiretap laws were written, the bad guys got their phones where FBI got theirs: from AT&T. Readers of a certain generation may remember the days when the black rotary phone next to the living room lamp belonged to the phone company, not the homeowner. The government knew where the phones were, and needed a way to tap them. The law allowed the police to identify the exact device being used. Everyone knew which hotel suite Al Capone lived in, and which telephone was installed there. Both the rules and the mechanics were easy to assemble.

But law enforcement was never interested in the hardware itself, only those who used it. Changing the wiretap laws requires simply extending their original purpose to our new wired world.

Criminals can now change devices daily; today's cell phone is tomorrow's paperweight. But we still need to hear what the criminals are saying, and it shouldn't matter what device they're using to say it. The laws governing eavesdropping should reflect that fact. They must be reoriented, away from the hardware and toward the actual subjects whose communications have always been what matters.

Privacy Concerns Raised

Extending the government's eavesdropping power naturally raises privacy concerns. But in many ways, the privacy protections for the targets of electronic surveillance are far greater than those for good old-fashioned search warrants.

When the police execute a search warrant in your house for drugs, they can open any container in which you might have the goods. Since drugs can be stored anywhere, the police have the legal right to look inside everything. The interior of a home in which a warrant has been executed looks like a hurricane went through, leaving nothing standing but the walls.

Here's the important part: because the police have a right to look everywhere for drugs — a right to their "vantage point," in Fourth Amendment parlance — everything they find will be considered admissible at any trial. So in addition to the fact that they will see all your stuff, which is invasive enough, they will be able to use anything they find to prosecute any crimes for which they found evidence.

Electronic searches are different. If the police hear someone on the line planning a different crime from the one that originally justified the wiretap order, they need to go back to the judge and notify her of the new turn their surveillance has taken.

If they fail to do so, they run a serious risk of having the evidence excluded at trial. No such protections exist when warrants are executed in physical spaces.

Thus, the usual rules of electronic surveillance are actually more protective of targets than more traditional searches. As long as these sorts of safeguards remain in place, expanding the power of the law enforcement community to conduct electronic surveillance can enhance our safety without threatening our liberty.

These are but a few of the opportunities to salvage something of our security from the wreckage of September 11, 2001.


Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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