The Wiretap This Time


NY Times Op-Ed Contributor

Published: October 29, 2007

EARLIER this month, the Senate Intelligence Committee and the White House agreed
to allow the executive branch to conduct dragnet interceptions of the electronic
communications of people in the United States. They also agreed to “immunize”
American telephone companies from lawsuits charging that after 9/11 some companies
collaborated with the government to violate the Constitution and existing federal
law. I am a plaintiff in one of those lawsuits, and I hope Congress thinks carefully
before denying me, and millions of other Americans, our day in court.

During my lifetime, there has been a sea change in the way that politically
active Americans view their relationship with government. In 1920, during my
youth, I recall the Palmer raids in which more than 10,000 people were rounded
up, most because they were members of particular labor unions or belonged to
groups that advocated change in American domestic or foreign policy. Unrestrained
surveillance was used to further the investigations leading to these detentions,
and the Bureau of Investigation — the forerunner to the F.B.I. —
eventually created a database on the activities of individuals. This activity
continued through the Red Scare of the period.

In the 1950s, during the sad period known as the McCarthy era, one’s
political beliefs again served as a rationale for government monitoring. Individual
corporations and entire industries were coerced by government leaders into informing
on individuals and barring their ability to earn a living.

I was among those blacklisted for my political beliefs. My crime? I had signed
petitions. Lots of them. I had signed on in opposition to Jim Crow laws and
poll taxes and in favor of rent control and pacifism. Because the petitions
were thought to be Communist-inspired, I lost my ability to work in television
and radio after refusing to say that I had been “duped” into signing
my name to these causes.

By the 1960s, the inequities in civil rights and the debate over the Vietnam
war spurred social justice movements. The government’s response? More
surveillance. In the name of national security, the F.B.I. conducted warrantless
wiretaps of political activists, journalists, former White House staff members
and even a member of Congress.

Then things changed. In 1975, the hearings led by Senator Frank Church of Idaho
revealed the scope of government surveillance of private citizens and lawful
organizations. As Americans saw the damage, they reached a consensus that this
unrestrained surveillance had a corrosive impact on us all.

In 1978, with broad public support, Congress passed the Foreign Intelligence
Surveillance Act, which placed national security investigations, including wiretapping,
under a system of warrants approved by a special court. The law was not perfect,
but as a result of its enactment and a series of subsequent federal laws, a
generation of Americans has come to adulthood protected by a legal structure
and a social compact making clear that government will not engage in unbridled,
dragnet seizure of electronic communications.

The Bush administration, however, tore apart that carefully devised legal structure
and social compact. To make matters worse, after its intrusive programs were
exposed, the White House and the Senate Intelligence Committee proposed a bill
that legitimized blanket wiretapping without individual warrants. The legislation
directly conflicts with the Fourth Amendment of the Constitution, requiring
the government to obtain a warrant before reading the e-mail messages or listening
to the telephone calls of its citizens, and to state with particularity where
it intends to search and what it expects to find.

Compounding these wrongs, Congress is moving in a haphazard fashion to provide
a “get out of jail free card” to the telephone companies that violated
the rights of their subscribers. Some in Congress argue that this law-breaking
is forgivable because it was done to help the government in a time of crisis.
But it’s impossible for Congress to know the motivations of these companies
or to know how the government will use the private information it received from

And it is not as though the telecommunications companies did not know that
their actions were illegal. Judge Vaughn Walker of federal district court in
San Francisco, appointed by President George H. W. Bush, noted that in an opinion
in one of the immunity provision lawsuits the “very action in question
has previously been held unlawful.”

I have observed and written about American life for some time. In truth, nothing
much surprises me anymore. But I always feel uplifted by this: Given the facts
and an opportunity to act, the body politic generally does the right thing.
By revealing the truth in a public forum, the American people will have the
facts to play their historic, heroic role in putting our nation back on the
path toward freedom. That is why we deserve our day in court.

Studs Terkel is the author of the forthcoming “Touch and Go:
A Memoir.”

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