Man Without Qualities

Thursday, June 13, 2002

Scooped Again!

It turns out that the Man Without Qualities is not the first to observe the irrationality (and potential danger) of the First Amendment exception in FISA. Herbert Romerstein makes much the same point in Human Events:

There has been much talk in the press over the past several days complaining that the FBI and CIA do not exchange information. Of course they do not. Restrictions on the flow of information were put in after the Church-Pike hysteria, and were, of course, reflected in FISA, which includes a provision that no information obtained in a wiretap "shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advanced authorization of the attorney general." This would prevent sharing FBI information even with other parts of the FBI.

If the person under suspicion is planning a terrorist action, the wiretap warrant could not be obtained if the information about this was derived "solely upon the basis of activity protected by the 1st Amendment to the Constitution." So if someone uses his free speech protection to advocate terrorism, he can’t be wiretapped to prevent him from carrying out the threat.

This brings us to the U.S.A. Patriot Act passed by Congress after September 11. You would hope that these defects might be fixed. Some others were, but not those we are talking about in this article. The Patriot Act, like FISA, requires that a crime has been or is about to be committed before a terrorist’s phone can be tapped. The new law also requires "evidence of a criminal offense" and says the wiretap cannot be obtained "solely upon the basis of activities protected by the 1st Amendment." Derived from FISA, the Patriot Act repeats this phrase over and over again.

The 1st Amendment protects us from the government’s preventing our freedom of speech. If we choose to exercise it in such a way that we tell the government that we intend to commit terrorist acts, the government should watch us, and even wiretap us. If a police officer stops a speeding car and sees a bumper sticker with a marijuana leaf, he would be a pretty stupid policeman if didn’t sniff the air and look into the open ashtray for handmade cigarette butts. The driver has the constitutional right to his bumper sticker, but if it tells the policeman what the driver intends to do, the policeman should not ignore it.

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