Follow Up on Partisan Hypocrisy Post

Okay, I looked up the actual 1995 law that was being debated by Congress (you can find much of that information here). Having done so, I have to admit that there's a much stronger case for hypocrisy on the part of the Republicans than the Democrats. The warrantless wiretapping provisions of the bill, it turns out, actually only dealt with emergency wiretaps - taps that are placed in an emergency, but which still require retroactive submission to a judge within 48 hours. If the judge does not issue the warrant retroactively, any evidence obtained in that search is inadmissable in court.

That, obviously, is a different situation than the current NSA program, which simply refuses to submit any request for a warrant to the FISA court at all and claims inherent authority for the administration to authorize any surveillance it wants. Even worse, to claim that no court has the jurisdiction to even hear arguments on whether it is or isn't constitutional. Clearly, then, what is going on now is far more corrosive to our liberties than the authority that Clinton sought in the mid 90s.

Incidentally, the original bill submitted by the White House in 95 did not include the emergency wiretap provisions; that was offered in an amendment by Joe Lieberman. There, more than almost anywhere, you can see the rank hypocrisy of the Republicans on display, especially Orrin Hatch. Here's Hatch's statement in opposing the amendment authorizing emergency wiretaps:

I find this proposal troubling, and let me list some reasons. I am concerned that this provision, if enacted, would unnecessarily broaden emergency wiretap authority. Under current law, such authority exists when life is in danger, when the national security is threatened, or when an organized crime conspiracy is involved. That is title 18, United States Code, section 2518(7).

This authority is constrained by a requirement that the surveillance be approved by a court within 48 hours. The President's proposal contained in this amendment would expand these powers to any conspiratorial activity characteristic of domestic or international terrorism. I personally do not believe that this expansion is necessary to effectively battle the threat of terrorism.

Virtually every act of terrorism one can imagine which would require an emergency wiretap--that is, the threat is so immediate that the Government cannot obtain a court order before instituting the wiretap--will certainly also involve `an immediate danger of death or serious physical injury,' or `a conspiratorial activity threatening the national interest,' as defined in current law. Thus, expanding the Government's emergency wiretap powers to any conspiratorial activity characteristic of domestic or international terrorism would add little to existing authority. However, the little that it does add or will add is particularly troubling.

This amendment defines domestic terrorism in an unwise and extremely broad manner. The amendment defines domestic terrorism, in part, as `any activities that involve violent acts or acts dangerous to human life and which appear to be intended to intimidate or coerce a civilian population or to influence the policy of Government by intimidation or coercion.'

That is a potentially vague and very loose standard. There are legitimate acts of protest that could be caught up in this definition, because they, in some way, pose a danger or are viewed as `intimidating.'

No one, of course, would contend that activities that truly threaten the public safety or an individual should go uninvestigated or unpunished. However, the standard for initiating a wiretap without a court order should certainly be higher than this amendment proposes.

Mr. President, a wiretap order is deliberately somewhat difficult to obtain. It is more difficult because it is more difficult to get the Justice Department to approve it than it is to get a judge or magistrate to approve it. Because wiretaps are so intrusive and conducted in secret by the Government in circumstances under which the subject has a reasonable expectation of privacy, the courts and Congress have required that the Government meet a heightened burden of necessity before using a wiretap to ensure that civil liberties are secure.

The law also, of course, recognizes exigent circumstances, because in a true emergency, when lives are at risk, we would not want law enforcement to wait for court-approved wiretaps any more than we expect a police officer to obtain a search warrant before chasing an armed and fleeing suspect into a house. Our present wiretap statute recognizes this with its emergency provision and expanding the exception should give us pause. We must ensure that in our response to recent terrorist acts, we do not destroy the freedom that we cherish. I fear that the amendment does take us a step down that road, and for these reasons, I oppose the amendment.

Let me mention one other thing. The distinguished Senator from Connecticut is very sincere and well-intentioned with this amendment. I acknowledge that. And he is an acknowledged authority on law enforcement. But I have to question whether this amendment would permit the Government to obtain emergency wiretaps; in other words, a wiretap without a court order--let me repeat that; a wiretap obtained without a court order--of, let us say, some of these groups in our society today, ranging from the right to the left. Take a gay rights group like Act Up, or an environmental group like some of the more vociferous environmental groups; or you could take some groups on the right that are vociferous that stage a sit-in that may violate some State property or some loitering felony. It seems to me that a demonstration blocking a busy street or entrance to a church or hospital could endanger human life under certain circumstances, and certainly a demonstration of this nature would be intended to change the Government's policy. This amendment could thus permit the Government to listen to the conversations of such groups without obtaining a court order.

This is deeply troubling to me, and I think to anybody who believes in the Bill of Rights and in the important protections the Constitution affords us. It is easy to come up with circumstances that would justify a wiretap, but then you meet the emergency requirements already in law. So I would rather stick with the current law.

He makes all of the arguments against warrantless wiretaps, which he now supports wholeheartedly since the Bush administration is doing it, but he was arguing even against such taps in an emergency with the requirement that they ask a court to sanction it within 48 hours (which is now allowed under the Patriot Act). Clinton's proposed bill also included virtually everything that's in the Patriot Act, including administrative subpeonas and the use of national security letters to get electronic records.