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Hawaii fears wiretap law will
erode privacy
Derrick DePledge
The
Honolulu Advertiser
Monday Aug 27, 2007
Civil liberties advocates
in Hawai'i are asking whether the federal government's expanded
electronic surveillance powers, approved this month in a rush
to close foreign intelligence gaps, adequately protect the privacy
rights of Americans.
President Bush signed a law this month that gives the government
the right to eavesdrop on telephone calls or other communications
without warrants if the target of the surveillance is reasonably
believed to be outside the United States. Intelligence experts
told Congress, which quickly passed the law before leaving for
its summer recess, that it was necessary to capture foreign-to-foreign
conversations routed through telecommunications providers in the
United States.
The Bush administration also warned Congress that a terrorist
threat may be imminent and that the U.S. could be vulnerable without
the surveillance capability.
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"It would be irresponsible to the highest degree to leave
knowing the potential problem was real and not to have anything
in place," said U.S. Sen. Daniel K. Inouye, D-Hawai'i, who
said he received intelligence briefings on the threat.
But the three other Democrats in the state's congressional delegation
— U.S. Sen. Daniel Akaka, U.S. Rep. Neil Abercrombie, and
U.S. Rep. Mazie Hirono — voted against the bill because
of concerns about privacy and civil liberties.
In Hawai'i, where the state constitution has an explicit right
to privacy, some civil liberties advocates question whether the
Bush administration used the fear of terrorism to get Congress
to hastily agree to the new federal powers. As a safeguard, Congress
placed a six-month sunset on the law.
While the government has said the targets of the surveillance
are foreign, the details are classified, so it is not known whether
the government is sorting through telephone calls looking for
patterns or is investigating specific tips about terrorism. Some
in Hawai'i wonder whether people in the Islands who make frequent
calls to countries in Asia are now subject to increased scrutiny.
"History teaches us that we should guard against the erosion
of rights and protections based on purported national security
justifications," said William Hoshijo, executive director
of the Hawai'i Civil Rights Commission, who was not speaking in
his official capacity. "I am particularly concerned with
the chilling of opposition by fear-mongering and demagoguery.
People should take a hard look at this legislation, and whether
it opens the door to abuses of civil liberties."
State Rep. Blake Oshiro, D-33rd ('Aiea, Halawa Valley, 'Aiea
Heights), said there is a potential for abuse because of the secrecy
and lack of warrants.
"We always stand in a different respect from the rest of
the nation because our constitution has a specific right to privacy,"
Oshiro said. "We need to recognize that Hawai'i has always
stood for that."
The American Civil Liberties Union has asked a special court
created under the Foreign Intelligence Surveillance Act to disclose
its rulings on the scope of the government's surveillance, and
the court has given the government until the end of the month
to respond.
Vanessa Chong, executive director of the ACLU of Hawai'i, said
the public now has no way of knowing "the extent of the snooping
going on by the government."
"Everyone in the United States is now vulnerable to this
new law, which has given the government enormous power to conduct
dragnet searches of millions of American communications,"
Chong said.
But J. Michael McConnell, the national intelligence director,
told the El Paso (Texas) Times in an interview this month that
federal investigators would get warrants to eavesdrop on people
in the United States and that the number of Americans involved
in the surveillance program so far is relatively small.
"On the U.S. persons side it's 100 or less. And then the
foreign side, it's in the thousands," McConnell said, according
to a transcript of the interview on the newspaper's Web site.
"Now there's a sense that we're doing massive data mining.
In fact, what we're doing is surgical. A telephone number is surgical.
So, if you know what number, you can select it out.
"We've got a lot of territory to make up with people believing
that we're doing things we're not doing."
President Bush secretly authorized the National Security Agency
to conduct the surveillance program in the weeks after the Sept.
11, 2001, terrorist attacks. The program, according to the administration,
involved warrantless surveillance of international conversations
where at least one party was believed to be involved with terrorists.
After the New York Times reported on the surveillance in December
2005, and the resulting criticism from the public and some in
Congress that Americans may have been secretly tapped, the Bush
administration in January put the surveillance under the jurisdiction
of the Foreign Intelligence Surveillance Act court.
The act approved by Congress in 1978, regulates surveillance
against foreign spies and terrorists.
Earlier this year, according to the administration, the special
court ruled that the government needed warrants to intercept foreign-to-foreign
conversations that were routed through the United States.
The Bush administration argued to Congress that obtaining court
orders diverted government resources and was an obstacle to collecting
real-time information about terrorist plots.
The new law allows electronic surveillance against foreign targets
without warrants and authorizes the national intelligence director
and attorney general to compel information from telecommunications
providers. The special court can review the procedures the government
uses to conduct the surveillance.
President Bush, in a statement issued when he signed the law,
said foreign terrorists and hostile nations change tactics frequently
to exploit the openness of the United States.
"Our tools to deter them must also be dynamic and flexible
enough to meet the challenges they pose," Bush said. "This
law gives our intelligence professionals this greater flexibility
while closing a dangerous gap in our intelligence gathering activities
that threatened to weaken our defenses."
Elliot Enoki, first assistant U.S. attorney for Hawai'i, said
the law updates the Foreign Intelligence Surveillance Act to adapt
to new technology.
Asked whether people in Hawai'i who make frequent foreign calls
could be exposed to greater government screening, he said the
targets are foreign terrorism suspects.
"I don't think we can put it terms of, well, does that mean
more calls are going to be intercepted or fewer calls or whatever?"
Enoki said, stressing that the law was about removing obstacles
to foreign surveillance.
Inouye, who has spoken out against surveillance abuses by the
government in the past, said the Bush administration made intelligence
experts available to answer senators' questions.
"You've got to take the word of the agents when they tell
you something is brewing," he said.
But Inouye said he would not have voted for the bill if it were
permanent. "It's true you can do damage in six months, but
you can undo it," he said.
Akaka said he voted against the bill "because it expands
the government's FISA powers and threatens the civil liberties
of law-abiding Americans."
Abercrombie said he opposed the bill on constitutional grounds.
"I voted against the bill because I believe in the Constitution,
which does not give anyone in our American system of government
the absolute power that this president desires," he said.
"We cannot give the president an unrestricted license for
our government to snoop and bully its citizens. He's seeking the
power of kings, and I'm not about to make the president of the
United States a new king."
Some Democrats, including Hirono, want Congress to reevaluate
the law before the six-month sunset. "I thought it was overbroad
and basically thought it does damage to our Fourth Amendment rights
to be free from unreasonable searches and seizures," Hirono
said.
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