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Some wiretaps are a needed precaution

April 19, 2008|By ROBERT GARY

The issue of wiretaps without warrants is one that requires a carefully and intelligently designed solution and here's a little discussion of the history and possibilities in this area.

Some time back, Admiral John Poindexter proposed a system called Total Information Awareness (TIA), which basically swept up huge quantities of information on just about everybody, in almost every category, and then had big computers that could sort through it looking for patterns that might point toward terrorism. Poindexter's idea was to mine the data coming from communication, travel and financial transactions and to do this across the board for virtually everybody.

This was an extremely creative idea; it used general systems theory, it used supercomputing power and it used heuristic logic. America simply wasn't ready for it, and I agree, it went a bridge too far. It had a Big Brother kind of feel. The civil libertarians went into howl mode. Adm.Poindexter, who lost his high position in the Pentagon, was working in part with DARPA (Defense Advanced Research Projects Agency).

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The moral of the story is sometimes the first creator (in this case a man who graduated first in his class at the Naval Academy in 1958 - same class as John McCain) gets slammed. OK, well, how about the second creator? Let's give it a try, shall we?

What would happen if a system monitored just phone, Internet and travel traffic with known terrorists? This system is not doing a total vacuum job on all the phone traffic. Instead it starts from the known terrorists and works outward to discover a network of connections to them.

It's a bit more like a probable-cause search, and a lot less like Big Brother the universal snooper. Why don't we call it a plausible cause search, since there's no direct evidence that an actual crime is being committed. All we have is a connection, by phone, Internet or travel, with a known terrorist or to a country known to harbor or promote terrorism. Known terrorists here should be construed broadly to include more than just the people on the "most wanted" lists.

It also would include their direct associates and third- level people with whom the close associates have regular communications.

Warrantless wiretaps, as described here, are not an unguided, unlimited fishing expedition like Total Information Awareness (TIA) appears to have been. They always start by tracing information out from known terrorists. Yes, privacy is invaded, but on a plausible cause basis and only to the extent necessary to protect this nation's security. We want warrantless wiretaps if they are linked to the mission at hand and not free to roam and rifle through all private information of all Americans - so 98 percent of the American people would have terrorism linkage scores of zero. People who just once talked on the phone with an individual, who had other phone conversations with known terrorists, might have a score of 1.

People, who talked directly with known terrorists, might have scores of 5 or 7. People who talked with secondary terrorism linked persons but also traveled to terrorist-harboring countries might have scores of 9 or 10. Everyone who has scores above zero has some terrorist linkage directly or indirectly, but this doesn't mean they are going to be arrested.

But, when an individual buys an airline ticket, or seeks to buy a tanker truck, boat, or plane, or certain biological materials (germs or castor beans) or industrial chemicals (fertilizer or cyanide), then their score gets looked at and taken into consideration. It's a little like checking a credit score. At the airport, the high-risk scoring person would get the fullest possible search - they might get an air marshal sitting next to them on the flight. They might get seated in a particular part of the plane - maybe not in first-class, right next to the cabin.

It's a tradeoff - the sort that civil liberties purists never quite seem to quite get. For them, feeling good about themselves comes first and they can't do that if anybody's privacy is compromised in any way.

Warrantless wiretaps, in a closed Department of Homeland Security system, and firmly premised on a connection to known terrorists, or terror sponsoring nations, have enough plausible cause to pass muster. They are necessary and proper measures, given the realities of the past decade. We have a living Constitution, both in essence and in existence. To keep it alive, we must be alive ourselves - and thus we can deliberate more fully the pure essence of civil liberties. Existence precedes essence.

Robert Gary is a Hagerstown resident who writes for The Herald-Mail.

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