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Wiretaps on the rise nationally since 9/11

The Arizona Republic | September 4, 2007
Sean Holstege

Investigators have tapped more phones, listened to more people and recorded more conversations since the Sept. 11 terrorist attacks not only in terrorism probes, but in traditional criminal cases, too.

State and federal courts authorized 8,122 wiretaps for domestic criminal investigations in the first five years after Sept. 11, 2001, marking a nearly 25 percent increase over the previous five years. Judges denied wiretap applications only twice.

Those figures do not include the controversial warrantless wiretaps that are backed by the Bush administration as a terrorism-fighting tool. Nor do they include thousands of wiretaps in which a secret court approves warrants in counterterrorism and espionage cases.

The increase in criminal wiretaps, which require warrants, matches a climate since the attacks in which law-enforcement and counterterrorism officials have blurred the lines between combating terrorism and conventional crime.

Homeland Security grants have been used for crime-fighting, states are more involved in counterterrorism and officials have suggested links between narcotics and terrorism, though they have not prosecuted such cases.

The rise in eavesdropping has civil libertarians concerned about an erosion of privacy and civil rights without any clear benefit.

"There is a pattern of a steady expansion of wiretapping without a corresponding growth in effectiveness, sweeping in innocent people along the way," said Kevin Bankston, an attorney with the Electronic Frontier Foundation. The San Francisco group keeps tabs on how the government uses or could abuse technology.

An Arizona Republic analysis of court data suggests declining effectiveness in criminal wiretaps at a time when the federal government has been strengthening its counterterrorism-wiretap powers and increasingly shrouding new surveillance programs in secrecy.

"The public should take notice because we've given law enforcement all these resources to make us safer," said Mike German, a retired FBI agent who became a counsel at the American Civil Liberties Union's Washington headquarters.

"What's happening with law enforcement is, since 9/11, they have been building the infrastructure for wiretaps to be the method of enforcement for the future. If it's not working, we should stop it right now. This is an alarm bell."


Historically effective
Prosecutors say, and statistics show, that wiretaps have been extremely valuable in dismantling crime syndicates. Wires helped weaken the Mafia. More than 47,000 criminals have been convicted in conventional wiretap cases in the past 20 years, according to data reported by the Administrative Office of the U.S. Courts.

In Phoenix, a major bust this month involving a suspected money-laundering operation at a shuttle service to Rocky Point relied on wiretap evidence.

Congress authorized wiretaps in the 1968 crime bill.

In fighting crime, U.S. investigators historically got half of the wiretap approvals, but in recent years state and local agencies got twice as many wiretaps as their federal counterparts.

In Arizona, investigators got 17 wiretaps last year. The 59 Arizona wiretaps since 2002 mark a 28 percent increase over pre-9/11 levels.

Investigators have to get a court order to eavesdrop. State, county or federal prosecutors submit applications to judges.

In those applications, investigators have to swear under oath that other techniques have failed, are likely to fail or are too dangerous.

They have to show probable cause that a specific crime is being committed by specific targets and that the wiretap of a specific phone or device will uncover proof.

For years, investigators listened to suspects on home, office or pay phones. Last year, more than 90 percent of intercepts involved cellphones, up from two-thirds in 2000.

Investigators can only listen to incriminating dialogue. When conversations turn innocent, eavesdroppers are supposed to switch off after a few minutes.


Expensive tool
Court data show one conversation in four yields evidence usable in court, a sign to German and other civil libertarians that investigators are snooping on too many innocent people.

Transcripts show that suspects intersperse conversations with personal exchanges and coded business banter to throw off investigators.

Court statistics suggest investigators have been diligent in ensuring their evidence holds up in court. Since 2001, defense attorneys have filed 294 motions to get eavesdropping evidence thrown out. With 62 motions pending, only six have been granted.

"I think that's a very telling statistic," said Assistant U.S. Attorney Mary Beth Pfiester, who handles wire applications on drug cases in Phoenix. "Prosecutors aren't going to go through the headache of preparing the paperwork if the case isn't going to meet the standards."

The cases are expensive. On average last year, a wiretap cost $53,000 nationally. For wiretaps obtained by the Arizona Attorney General's Office, the average cost was close to $300,000. Those figures don't include the cost of police work and prosecutors' time.

Jane McLaughlin, who oversees wire applications for the attorney general's drug-crimes unit, says that the money pays off. She hasn't lost a wire case in 10 years.


Conviction rate down
The official conviction rate doesn't measure what happens to people who are arrested but never charged.

Nationally, the number of people convicted within three years of a wiretap has fallen 18 percent since Sept. 11, 2001, while the number of people arrested slipped 8 percent, the court data analysis shows.

That three-year window is significant because almost all arrests and five-sixths of the convictions are wrapped up in that time, an analysis of the court data shows.

Typically, wiretap cases involve lengthy investigations. Agents don't make a bust until they are nearly certain they have enough for a conviction. Nationally, half of those arrested in wiretap cases are convicted, court data show.

"It's an effective, effective tool. That's why that statistic about convictions is so surprising," said Paul Charlton, former U.S. attorney for Arizona.

He attributes the drop in conviction rates to a focus on kingpins, meaning less important conspirators who are swept up are often let go.

"If you pick up 30 defendants on a wiretap, if your resources are limited, you may go after the core 10 people," Charlton said.

That's because it's not worth lengthy, expensive surveillance of suspects who play a peripheral role and would only get relatively minor sentences.

That people who are never prosecuted are being listened to by investigators has civil libertarians alarmed.

"Yes, the technique is useful, but it remains highly intrusive, and it requires controls that have been consistently weakened at the judicial and legislative levels and weakened by misleading claims by the government about its effectiveness," said James Dempsey, policy director for the Washington, D.C.-based Center for Democracy and Technology.

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