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Hawaii fears wiretap law will erode privacy

The Honolulu Advertiser | August 27, 2007
Derrick DePledge

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.

"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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