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The intrusive ears of the law.


Not since the Nixon Administration went on a binge in the early 1970s has electronic eavesdropping by Federal law enforcement agencies been as rampant in the United States as it is today. According to the annual wiretap report, issued in April by the Administrative Office of the U.S. Courts, the Federal government installed more than 200 taps and bugs for law enforcement purposes last year. Because of lags in reporting, that figure is not final, yet it is already almost double the past ten years' annual average of 105 and a radical leap beyond the Carter Administration's annual average of 81.

Wiretapping and bugging became legitimate tools of law enforcement in 1968, when Congress passed the Omnibus Crime Control and Safe Streets Act, which specifies they can be used by authorities, with court approval. Since that time, electronic eavesdropping devices have been planted in houses, offices, churches and other places where people speak in confidence. Once authorized, such intrusions are difficult to limit, particularly when the wiretappers want to hear everything, as is often the case. The widespread snooping into the private lives of Americans takes a toll: it inevitably undermines the trust that people need to feel in order to speak openly, to work together effectively and to share intimacies freely.

In the Nixon era, the Federal Bureau of Investigation eavesdropped mostly on small-time gamblers during business hours in an unsuccessful effort to rack up a good box score of convictions and identify the kingpins of organized crime. In the process, the conversations of a relatively small number of innocent people were overheard. No longer. As part of a perennial-- and futile--war on drugs, the Reagan Administration is concentrating its wiretapping and bugging on suspected traffickers.

During Carter's term, there was an average of 24 drug-related taps a year; by contrast, of the 208 reported taps authorized for 1983, 140 were for narcotics investigations. Each drug tap catches many people in many conversations, as the eavesdroppers listen in twenty-four hours a day, often in residences or offices. Last year the average reported Federal tap caught 177 people in 2,057 conversations; that comes to 36,816 people overheard in more than 427,000 conversations. As drug use increases among people not normally involved in criminal activity, more innocent conversations, often of the most intimate nature, are intercepted.

The Supreme Court has encouraged this dragnet by allowing eavesdroppers to ignore Congress's mandate that they make a good-faith effort to minimize their interceptions. As a result, only 15 percent of the intercepted conversations are what the government characterizes as "incriminating' (whatever that means), and according to several studies, that percentage is overstated. Thus, even by prosecutors' figures, at least 85 percent of everything overheard has no criminal connection.

Wiretapping in drug cases is not just sweeping; it is expensive: only surveillances in racketeering investigations cost as much. In 1983 Federal wiretaps reportedly averaged more than $65,000 each because of the increasing proportion of drug taps; thirty-two reportedly cost more than $100,000 each. The average tap in Federal investigations unrelated to racketeering or drugs costs about $50,000. And none of those figures include the cost of lawyers' and judges' time.

Of the investigations that utilize wiretaps, drug cases produce the highest proportion of convictions. In 1981-82, for example, 130 taps and bugs were installed for narcotics investigations: 56 of those, or 43 percent, were associated with convictions; of the 114 taps in nondrug cases, only 28, or 25 percent, were associated with convictions. Still, various studies indicate that often the wiretap contributed little or nothing to obtaining the conviction.

Wars on drugs are wasteful public relations ploys anyway. The authorities may get a handful of big hauls but they rarely catch the big operators. In 1982 a state police eavesdropping specialist told Police Magazine, under a promise of anonymity, "The best you usually can hope for is to get the people who actually handle the drugs from day to day.' As for penetrating the upper strata of organized crime, "you get to a certain level and then you stop,' said a Connecticut police intelligence expert. "If you stumble onto something big, it's more by chance than anything else.' That is why some experienced district attorneys, like Mario Merola of the Bronx, who once considered wiretapping the weapon of choice in fighting drugs, rarely use it now. Only New York, New Jersey and Florida continue to wiretap heavily, and the way they use the taps often makes no sense. In 1983, seventeen wiretaps were installed in Suffolk County, New York. In the drug-inundated Bronx, however, there were none; Brooklyn and Buffalo had only one each.

In addition to law enforcement wiretapping, national security taps under this Administration soared for the third straight year. Those taps are allowed under the Foreign Intelligence Surveillance Act of 1978 (FISA) which sets a looser standard than the Omnibus Act of 1968. During 1979 and 1980 an annual average of 320 national security surveillances were ordered. But in 1981, President Reagan's first year in office, the figure jumped to 433; in 1982 it was 475, and in 1983, 549. Although most taps authorized under FISA are supposed to be directed against foreign agents, Americans are being increasingly targeted. What dire threat to national security justifies this steadily growing intrusion on individual liberty?

On May 9, 1984, the House Intelligence Committee issued its annual report on wiretapping under FISA and, as usual, it didn't say much. This committee and its Senate counterpart are supposed to oversee the agencies that operate under the statute, to make sure that it is not being abused; but their oversight does not inspire confidence [see Schwartz, "How Do We Know FISA Is Working?' The Nation, October 29, 1983]. The only way to determine whether the statute is working properly is to review applications individually. As the committee admitted ruefully, however, the ones that the Administration made available for committee inspection were censored in such a way as "to reduce significantly the utility of the review process.' Yet that didn't stop the committee from concluding, on the basis of "extensive discussions' with Administration officials, that the syatem was operating well. The committee warned, however, that since "effective oversight must be based on a more permanent foundation than good working relationships,' it will in the future insist on reviewing the original, uncensored applications and "expects the Department of Justice to cooperate in this effort.' Lots of luck.

In this fourth year of an Administration committed not only to wiretapping but to censorship, lie detectors and other repressive devices, it is impossible to resist invoking George Orwell's nightmare masterpiece. If Reagan is reelected, however, and especially if he gets the chance to make a few more Supreme Court appointments like Sandra Day O'Connor, 1984 may come to look like the good old days.
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Title Annotation:electronic eavesdropping
Author:Schwartz, Herman
Publication:The Nation
Date:Jun 16, 1984
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