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Today's LA Times contains an essay from former Attorney General Nicholas Katzenbach, writing on the occasion of Martin Luther King Day to do penance for his sins against the martyred civil-rights leader. It is a curious kind of penance, however, that rationalizes Katzenbach's sins while forcing the entire nation to do his penance for him. Katzenbach played a key role in the FBI tapping of King's telephones in the 1960s, but now -- forty years afterwards -- wants to eliminate wiretaps altogether while we're at war with Islamist terrorists:
In October 1963, Hoover requested Atty. Gen. Kennedy to approve a wiretap on King's telephone. At that time, taps had to be approved by the attorney general and did not require court approval in the form of a warrant. The basis for the tap was King's close association with Stanley Levison, who Hoover said was a prominent member of the Communist Party with great influence over King in civil rights matters. ...
When Hoover asked for the wiretaps, Bobby consulted me (I was then his deputy) and Burke Marshall, head of the Civil Rights Division. Both of us agreed to the tap because we believed a refusal would lend credence to the allegation of communist influence, while permitting the tap, we hoped, would demonstrate the contrary. I think the decision was the right one, under the circumstances. But that doesn't mean that the tap was right. King was suspected of no crime, but the government invaded his privacy until I removed the tap two years later when I became attorney general. It also invaded the privacy of every person he talked to on that phone, not just Levinson.
King had been accused of no crime, and neither had Levinson; the FBI offered no proof that Levinson even belonged to the Communist Party, nor explained why that would have justified tapping one of the country's pre-eminent civil-rights activists (and the one who espoused non-violence, as opposed to others such as Malcolm X). Yet Katzenbach and Kennedy readily acquiesced to the tap, supposedly so Hoover could then discover that Hoover was wrong.
Anyone buying that explanation? Did Hoover often take such steps merely to satisfy his own curiosity? Hoover's secret files on political players had become well-known to almost everyone in Washington, especially to the Kennedys who had to frequently deal with their consequences while Jack was president. Katzenbach as either a babe in the woods then, or isn't being particularly honest now.
Now Katzenbach wants America to disavow wiretaps altogether and cynically uses King Day to stump for that position. However, the two situations hardly prove analogous. Today we face an enemy that has already killed thousands of Americans in a sneak attack, using our open communications networks to stage and time the attacks for maximum effectiveness. In order to stop the next attack, we need to have the ability to grab data from those phone sets that have connections to al-Qaeda based on evidence and testimony -- and to do it quickly. The calls that get intercepted cross international boundaries, so domestic calls still require (and get) warrants. The numbers come from captured phones and computer equipment directly tied to terrorists. Under those circumstances, the use of warrantless wiretaps makes sense and has prevented attacks on America, according to one Senator who participated in the briefing sessions from the NSA program.
CQ reader Corky B reminds us of the work of David Kahn, who wrote a seminal book on cryptography in 1967 titled The Codebreakers. The book details the efforts to capture the Purple traffic from Imperial Japan's diplomatic corps over cable wires just prior to World War II. That effort had been illegal then, under the FCC law of 1934:
"The first task of OP20-G and S.I.S. was to obtain raw material for the cryptanalysts. And in peacetime America that was not easy."
"Section 605 of the Federal Communications Act of 1934, which prohibits wiretaps, also prohibits the interception of messages between foreign countries and the United States and territories. General Malin Craig, Chief of Staff from 1937 to 1939, was acutely aware of this, and his attitude dampened efforts to intercept the Japanese diplomatic messages coming into America. But after General George C. Marshall succeeded to Craig's post, the exigencies of national defense relegated the problem in his mind to the status of a legalistic quibble. The cryptanalytic agencies pressed ahead in their intercept programs. The extreme secrecy in which they were cloaked helped them avoid detection. They concentrated on radio messages, since the cable companies,in general refused to turn over any foreign communications to them. Consequently, 95 percent of the intercepts were radio messages. The remainder was split between cable intercepts and photographs of messages on file at a few cooperative cable offices."
Should we have impeached FDR and court-martialed General Marshall for taking the extraordinary steps they did in protecting America from attack as best they could? And remember, this took place before hostilities began with Japan, not after Pearl Harbor. George Bush and the NSA went by a narrower interpretation of the law before 9/11 and we paid the price for it.
If Katzenbach needs to do penance for his sins against Martin Luther King, let him offer his apologies to the King family directly. We don't need to disarm our defenses for the sake of Katzenbach's conscience. (via Power Line)Sphere It View blog reactions
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