“Wiretapping: Whom Do You Trust?”

  Don’t be fooled by all of the partisan bickering. Congress’ recent debate over enacting a new federal wiretapping statute boiled down to one very simple question: should Congress transfer the authority to approve wiretaps from judges, whom the constitution specifically entrusts with this power, to the intelligence agencies and the Department of Justice, who conduct the surveillance?

            For most of the last century, prior to the Bush gang’s exploitation of the post-9/11 hysteria, the courts approved individual wiretap applications. This reasoning was crystal clear: The whole intent of the Fourth Amendment is thwarted by having the very people doing the snooping be the ones to approve their own snooping! Permission (“warrants”) to search (or eavesdrop) has to be given by a judge in the form of a search (or wiretap) warrant. In this way, the judicial branch of government keeps some check on the executive branch’s law enforcement and intelligence operations.

The Protect America Act, passed on August 5, almost entirely cuts the judiciary out of this process. The intelligence agencies and DOJ lawyers thus have been given the power to conduct electronic surveillance, on their own, of telephone calls involving American citizens, located on American soil, when those calls involve one party located abroad. Thus, all foreign phone calls made or received by Americans are subject to warrantless wiretapping, without the approval of a judge. This is unprecedented. Perhaps the only good news about the Protect America Act is that it expires in 180 days, at which point it will be reevaluated.

Is there any reason to believe that FBI, CIA and NSA agents and Department of Justice lawyers are somehow more trustworthy than federal judges who are appointed for life (to assure their independence) by a President and confirmed by the Senate? I’ve practiced criminal and civil liberties law for some four decades. I’ve come across a lot of Department of Justice officials and prosecutors, as well as FBI and other federal law enforcement and intelligence agents. Likewise, I’ve appeared before a lot of federal judges. I haven’t liked all of the judges, but I can say without reservation that, as a group, federal judges are far more trustworthy than prosecutors and agents.

 After all, within the last year, just in Boston, a federal judge found a federal prosecutor to have lied under oath about his misconduct in a criminal prosecution, and, more recently, United States District Judge Nancy Gertner issued a long and detailed opinion that awarded $101 million to the victims of an FBI operation that encouraged a hoodlum-turned-cooperating-witness to give false testimony convicting four innocent men in a state murder and sentencing three to death row. And what about the federal agents in recent decades who have been convicted of selling classified secrets to the enemy or otherwise disclosing classified material entrusted to them? How many federal judges have recently been charged with, much less convicted of, espionage? None comes to mind.

 Whom would you trust to protect both national security and the Constitution? I’ll put my money on the judiciary any day, just as the drafters of the Fourth Amendment did, but as the Congress failed to do. This is not rocket science. We voters have been swindled by the idiots, scoundrels, and cowards in the Congress. Hopefully they’ll get some brains and some backbone when it comes time to review this pathetic statute.