“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” -Benjamin

Franklin

THE Bangladesh government is considering amending the Telecom Act to allow eavesdropping on telephones to prevent “terrorist attacks.” While this is ostensibly to stop the suicide bombers, in the future, this can also be used to spy on opposition politicians, grassroots activists, NGos, journalists, and academics. ironically, although this law is being pushed in a BNP period, if AL comes to power in the future, there is no doubt that they will also use this law to spy on the BNP politicians (we can look at both party's abuse of Special Powers Act for past track record).

Although we are starting with this law, many more laws will follow. To see a blueprint of the reduction of civil liberties in times of crisis, we can look at post-9/11 North America, Europe, and other countries in Asia. For those of us who have been working as activists and artists in the area of civil liberties in the United States, the Bangladesh government's argument about sacrificing rights in order to gain security is very familiar.

if American civil liberties can be defined as a pendulum, there have been many swings to both left and right. After the 1919 bombing of the Attorney General's house by anarchists, thousands of immigrants were rounded up and deported. The civil liberties apparatus at that time was not strong enough to protest. Again, during World War ii, thousands of Japanese-Americans were sent to internment camps because their loyalty was in question. But this time, the courts had started becoming more robust places to defend rights. Lawsuits filed by Korematsu, Endo, and others put on record citizen opposition to internment policy. The 1950s HUAC blacklisting of American communists under Senator McCarthy was also followed by a reversal in US politics which saw McCarthy disgraced and his black list eventually overturned.

Crucial to debates about government surveillance of US citizens is the 4th Amendment to the Constitution, which states: “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

in the efforts to prosecute cases against organized crime and potential “communist” saboteurs, this amendment became a battleground. in one such case, Berger v. New York (1967), the courts ruled that it was unconstitutional to issue warrants permitting police officers to trespass on private premises to install listening devices. The warrants were to be issued only upon a showing of ''reasonable ground to believe that evidence of crime may be thus obtained, and particularly

describing the person or persons whose communications, conversations or discussions are to be overheard or recorded.''

Ruling for the majority, Justice Clark wrote about a previous statute that allowed eavesdropping: “failure to describe with particularity the conversations sought gives the officer a roving commission to 'seize' any and all conversations ...authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. The statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts.”

in the case of Katz v. United States (1967), the court looked at a case where a listening device was attached to the outside wall of a

telephone booth regularly used by Katz and activated each time he entered; since there was no “physical trespass” into the booth, the 4th Amendment was deemed irrelevant. The Upper Court disagreed, saying that ''once it is recognized that the 4th Amendment protects people -- and not simply 'areas' -against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion.”

During the case hearing, Justice White wanted to preserve electronic surveillance for ''national security cases'' upon authorization of the President or the Attorney General, without judicial approval. The Executive Branch stated that it needed to wiretap in two situations:

I z

against domestic subversion and against foreign intelligence operations. The Supreme Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. The government's duty to preserve national security did not override the need to present to a neutral magistrate evidence to support issuance of a warrant authorizing that invasion of privacy. in fact, the court argued that protection was even more necessary in ''national security cases'' because the government could regard opponents of its policies as a threat and be more likely to step on areas protected by the Constitution.

The watershed moment in the debate over surveillance and secrecy came in the 1970s. Chastened by the Vietnam war, the Pentagon papers, the Watergate scandal, and the freefall of the Nixon Presidency, Americans were more likely to question their government than ever before. The mood was captured by two films of that period, All The President's Men (Watergate investigation) and The Conversation (a surveillance specialist). in this environment, the 1975 Church Hearings were

the most thorough investigation of government secrecy and surveillance ever undertaken in American history. Senator Frank Church's committee of 11 senators and 100 staff members gathered a staggering 800 interviews, and 110,000 pages of documents to produce its report. However, Church was fairly moderate in his approach to surveillance. He did not oppose covert operations, but believed they should be used only "in a national emergency or in cases where intervention is clearly in tune with our traditional principles." Much of his focus was on the use of surveillance against domestic citizens, engaged in lawful activities of dissent (such as anti-war protesters). The main legacy of his report was the creation of the

standing House and Senate intelligence committees.

But after 9/11, the pendulum swung back and many on the right were blaming Church for hampering US intelligence gathering abilities. Secretary of State James Baker said that Church's hearings had caused US to "unilaterally disarm in terms of our intelligence capabilities." The Wall Street Journal editorial page said that "[Church hearings were] the moment that our nation moved from an intelligence to antiintelligence footing." in this environment, the US has now seen the rollback of many cherished American liberties. The amount of time an accused can be held without charges being brought, a defendant's access to the evidence against him, expanded powers of surveillance, wiretapping, ability to search a person's house without warrant, all of these powers have been expanded dramatically.

As four years have passed without any new attacks on American soil, the public has started questioning many of these draconian steps. When the New York Times broke a story about intelligence officials spying on antiwar activists, all the old questions from the 1970s began resurfacing.

Yes, intelligence operations are needed against a threat to the nation. But is the answer more power, or better use of the powers that already exist? And if intelligence agencies have no monitoring of their own activities, who will guarantee that they will not abuse those privileges?

These questions are being raised through successful legal challenges and activism by groups as diverse as Center for Constitutional Rights, ACLU (American Civil Liberties Union), DRUM (Desis Rising Up & Moving), AALDEF (Asian American Legal Defense & Education Fund), Urban Justice Center, Families for Freedom, Not in our Name, and many others. in an indication of how the popular mood has also changed, groups like the ACLU have seen a huge increase in their fee-paying membership. important victories have included united opposition to the Patriot Act's provision that allows intelligence agencies to subpoena library records to see what books people are reading.

Bangladesh already has a checkered history with regards to rights and free speech. There can be no doubt that if the reaction to the current spate of bombings (which are horrific and need to be stopped) is excessive and leads to things like phone tapping, these tools will be abused to curb lawful dissent from politicians, activists, journalists, NGos, and academics.

Special Powers Act, 1974 is still on the books, and each successive government uses it to curb the opposition party (in this matter AL and BNP are equal). in the US, there has built up over the last three decades, a robust free speech movement and many different organizations that work to preserve civil liberties, even in times of national crisis. Bangladeshi activists need to start building an equally strong set of organizations that can protect civil liberties, and speak out against passage of excessive laws.

Naeem Mohaiemen, a civil liberties activist, will present New York-based Visible Collective's video & art installation project “DISAPPEARED: Migrants, National Identity & Security Paranoia after 9/11” at Bengal Art Gallery (H 275F,Rd 27, Dhanmondi), on Dec 13, at 6 PM. www.disappearedinamerica.org