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Washington's secrecy battles – from 9/11 to Enron

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The letter of Coleen Rowley, FBI agent in Minneapolis, bitterly complaining of the roadblocks that hampered the investigation of a leading terrorist suspect, is not only a severe embarrassment to the FBI. It also reopens the perennial issue of how much liberty to sacrifice in the interest of security.

In the mid-1970s, congressional investigations unearthed years of extensive illegal FBI wiretaps, surveillance, and break-ins aimed at political dissidents and civil rights activists, including the Rev. Martin Luther King Jr. The 1976 report of the House Intelligence Committee, suppressed by a vote of the House, spoke of "careers ... ruined, friendships severed ... in some cases, lives endangered."

It was to establish control of FBI activities that Congress, in 1978, passed the Foreign Intelligence Surveillance Act. It created a unique secret court, with judges selected by the Supreme Court's chief justice, to review applications for wiretapping foreign agents. Operating behind walls of secrecy, and seldom refused, the bureau became slipshod in writing its applications.

As a result, in the fall of 2000, according to The New York Times, the seven judges called Attorney General Janet Reno to their secret courtroom to complain of misleading affidavits. The scorched FBI counterintelligence unit began holding back on submitting new applications.

Some requests relating to Al Qaeda were held up for review as to whether they met the legal standard for a wiretap warrant. This was the atmosphere in which the dedicated Agent Rowley found herself being frustrated in her efforts to obtain a warrant to search Zacarias Moussaoui's laptop computer. But that was in the month before Sept. 11. In the wake of Sept. 11, the hastily enacted USA Patriot Act gave Attorney General John Ashcroft broader power to circumvent the Fourth Amendment's "probable cause" standard, and reduce judges' discretion in issuing certain types of warrants.

So, are we going back to the days when Henry Kissinger, in the Nixon White House, could write his own list of wiretap targets? Are we faced again with that vexing question of how much privacy to yield in the name of security?


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