What Price Security?

The McCarran-Walter Act is a mean-spirited relic of the McCarthy era’s hysterical anti-communism and should be stricken from the books. The Foreign Intelligence Surveillance Act is a well-intentioned attempt to reconcile national security and civil liberties, but it seems to need some fine-tuning, too.

Both things have been made clear by the part these laws have played in the U.S. government’s hounding of eight immigrants who authorities allege are members of the Popular Front for the Liberation of Palestine. When the government arrested these people, it charged they were terrorists. It quickly emerged, however, that there was no evidence that they had committed a crime. So, instead of trying them for what they had done, the government decided to throw them out of the country for what it says they think.

This was to have been accomplished by invoking McCarran-Walter, an odious statute that allows government to exclude from the United States advocates of “world communism.” In this case, though, U.S. District Judge Stephen V. Wilson finally declared that the law is an impermissible infringement of free speech. The government is appealing, but Wilson’s common-sensical ruling should be upheld.

These circumstances alone would appear to make the government’s conduct of this case dubious, at least. But other troubling facts have come to light: Federal authorities now admit that they have eavesdropped on the defendants through a wiretap authorized under the Foreign Intelligence Surveillance Act of 1978. Among the conversations they overheard were ones between the defendants and their lawyers.

The surveillance law was intended to eliminate abuses of civil liberties by U.S. intelligence agencies. When such agencies want to spy in the United States, they are required to apply to a secret court for an order and make a rather minimal showing that their target is a “foreign power” or its “agent.” If the legality of the order is challenged, it is subject to review by a federal judge, though this process, too, occurs in secret.

Clearly, this is a process congenial to the concept of national security held by intelligence agencies. It is less clear that these procedures equally respect the views of those who believe our security resides in respect for liberty. The attorney-client privilege, which has been violated in this case, is the cornerstone of the right to counsel--a right as fundamental as freedom of thought, speech or association.

Whether this situation represents a failure to apply the surveillance act properly or a defect in the law itself remains to be determined, but the question merits a full and open hearing.