- Wiretapping. Most wiretapping operations target narcotics-related crimes. Federal guidelines revised in May 2002 reduce the internal oversight required before law-enforcement applies for authorization to intercept communications, but a court must still pre-approve most communications-intercepting operations.
- Drug Policy. Federal spending on drug programs has risen about 18 times from the 1980s to 2000, and the share spent on law-enforcement has increased from about 40 percent to 50 percent, while drug-use reduction programs have remained at about 30 percent share.
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Wiretapping (last updated June 9, 2002) (back to top)
The vast majority of wiretapping and communications-intercepting operations target people allegedly involved in narcotics-related crimes. In 2001, 78 percent of the court orders authorizing intercept operations involved narcotics-related crimes as the most serious offense, a dramatic increase in both number and share since the early 1990s.
After narcotics, intercept operations targeted gambling and racketeering crimes. Only a small handful (less than 5 percent) of the orders in 2001 involved homicide or assault crimes.
Except in emergency situations, federal and state law-enforcement must get prior approval from a judge before conducting a wiretap operation. Under federal law, a judge may authorize an order if he or she determines there is probable cause for believing that:
- The target of a wiretap operation committed or is about to commit a crime,
- Communications concerning that crime will be obtained as a result of a wiretap, and
- "Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be dangerous."
In May 2002, Attorney General John Ashcroft revised the Department of Justice's operational guidelines to make wiretapping more readily available as an investigative tool. The new guidelines do not change the legal requirements for getting authorization to conduct a wiretapping operation, but reduce the internal DOJ approvals previously required before applying to a court. Accordingly, agents can seek court approval more quickly and with less oversight from superiors.
In announcing these revised guidelines, Ashcroft said that they would help law-enforcement combat terrorism more efficiently and effectively. The American Civil Liberties Union, among others, criticized this argument because the revised guidelines effect operations beyond terrorism and because wiretaps are used primarily in non-terrorism situations.
If granted, a court order authorizing a wiretap operation lasts no more than 30 days, though orders can be extended. After the expiration of the order and any extensions, recordings must be presented to the judge and within 90 days, the judge must provide notice to the targeted parties about the court order and whether communications were intercepted. If the targeted parties make a motion, a judge may in his discretion provide parts of the intercepted communications "as the judge determines to be in the interest of justice."
In 2001, the most active federal intercept operation was in the Central District of California, where a 27-day investigation of copyright infringement resulted in average of 660 interceptions a day. As for state operations, the most active was 43-day narcotics investigation in Lubbock County, Texas, in which 338 intercepts a day. Wiretaps were used in 2001 primarily in the Central District of California, the Northern District of Illinois (which includes Chicago), and the Western District of Texas.
As of early 2002, seven states do not authorize state law-enforcement to use wiretaps. These states are Alabama, Arkansas, Kentucky, Michigan, Montana, South Carolina, and Vermont.
If a wiretapping or intercept operation commences without a warrant, it could violate the Fourth Amendment. Under the 1967 case of Katz v. United States, 389 U.S. 347, the government violates the Fourth Amendment whenever it transgresses a citizen's substantive manifestation of a privacy interest and when the privacy interest is one legitimately accepted by society.
The government does not need a warrant when it listens to a two-party conversation with the consent of one of the parties. It also does not need a warrant to get a list of the telephone numbers you call, as you voluntarily convey that information yourself to the telephone company and thus do not necessarily expect to keep those numbers private.
Sources: The Administrative Office of the U.S. Courts makes annual reports on the wiretaps authorized by the federal and state courts, and the reports are available on-line here; the graph is based on information in Tables 3 and 7 of the 2001 report. Federal law concerning wiretap and intercept operations is codified in Chapter 119 of Title 18 of the US Code, which is available via Findlaw.com here. The Attorney General's new guidelines for the "lawful, warrantless monitoring of verbal communications" is available via the DOJ's Office of Legal Policy, on-line here. Attorney General John Ashcroft's May 30 speech announcing them is on-line here. The ACLU's May 30 press release criticizing the new FBI guidelines is on-line here. Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure (West Publishing, 5th edition, 1996).
Federal Drug Policy (last updated August 25, 2001) (back to top)
Federal drug policy is coordinated by the Office of National Drug Policy, the head of which is commonly referred to as the drug czar.
From 1996 to early 2001, the drug czar was - just as in the movie Traffic - a general with 31 years of previous army service, Barry R. McCaffrey.
In an interview with the New York Times, McCaffrey showed himself to be quite aware of drug treatment as the core solution, though he has had difficulty getting funding for such programs. He also criticizes provisions in the federal sentencing guidelines which impose longer sentences for the selling of crack cocaine than for power cocaine, a disparity that some have called racist since whites use and sell power cocaine more than blacks. He also opposes mandatory minimums, which others have also criticized for being too inflexible and too harsh, and would rather have judges decide appropriate sentences on an individual basis (though this approach can lead to wide disparities in sentencing depending on which judge you happen to get). On top of this, he helped persuade Clinton to extend health insurance for federal employees facing addiction and mental illness.
On May 10, 2001, Bush nominated John P. Walters as the new drug czar. Walters served as top deputy to William Bennett, the drug-policy director under Bush's father. Walters briefly was acting drug czar in 1993, but quit when Clinton slashed the staff and announced he would re-orient drug policy to focus on treatment of hardcore users and thus de-emphasize law enforcement and interdiction. He co-wrote the 1996 book Body Count with Bennett and John DJ. DiIulio, Jr., in which they argued that moral poverty - rather than economic poverty - had caused the rise of youthful "super-predators."
Walters must be confirmed by the Senate before he can take on the post. Until then, the Office of National Drug Control Policy is being led by an interim director.
Federal spending on drug programs has risen considerably over the past two decades, about 12 times since 1981 and about twice since 1990. The federal government spent $1.5 billion in fiscal year 1981, $10.96 billion in fiscal year 1991, and $18.46 billion in fiscal year 2000 (these figures are not inflation-adjusted).
Where this money has gone has shifted somewhat over the years, though a mostly consistent 30 percent has gone to drug-use reduction programs for the last 15 years (the balance between treatment and prevention programs has shifted within this broad category). Domestic law enforcement has gone from about 38.9 percent in 1986 to about half of such spending by 2000. Interdiction programs went from about a quarter of spending in 1986 to about 10 percent in recent years. International programs have held constant at around 5 percent of federal spending.
Sources: Federal drug budget data is compiled from various annual summaries of the Office of National Drug Policy; these summaries do not always correlate with each other (available here). Christopher S. Wren, A drug warrior who would rather treat than fight, New York Times, January 8, 2001. President George W. Bush's remarks upon nominating John P. Walters are available here.
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