23 Berkeley Tech. L.J. 691 (2008)
Pay No Attention to the Man behind the Curtain: the Government's Increased Use of the State Secrets Privilege to Conceal Wrongdoing

handle is hein.journals/berktech23 and id is 695 raw text is: PAY No ATTENTION TO THE MAN BEHIND THE
By Margaret Ziegler
In the last forty years, the courts and legislature have taken steps to
rein in the government's ability to wiretap U.S citizens, mostly in response
to revelations of widespread government abuse of the practice. Most stat-
utes and case law pertaining to wiretapping originated in the late 1960s
and the 1970s.1 Around this time, American mistrust of the government
had increased greatly in the face of publicity surrounding the Watergate
investigation, which uncovered massive unchecked government wiretap-
ping of U.S. citizens.2 Congress responded by codifying warrant obliga-
tions for electronic surveillance.3 During and following the Vietnam War,
litigation tested the government's right to eschew these requirements when
faced with national security concerns. The Supreme Court addressed the
issue in 1972, holding the warrant requirement for eavesdropping on U.S.
citizens is mandated by both statute and the Fourth Amendment.4
Following the attacks of September 11, 2001, the United States be-
came involved in another literal war as well as a figurative war on terror-
ism. The government once again began eavesdropping on its citizens and
using national security as its justification.5 With many eavesdropping
practices outlawed in the 1970s, the government has now taken steps to
conceal its surveillance activities. When questionable activities are uncov-
© 2008 Margaret Ziegler.
1. See Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.
L. No. 90-351, 82 Stat. 197 (codified as amended at 18 U.S.C. § 2510-21 (2000) [herein-
after The Wiretap Act]; Foreign Intelligence Surveillance Act, Pub. L. No. 95- 511, 92
Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1811) (2000) (these sections per-
tain to electronic surveillance) [hereinafter FISA].
2. See generally Barbara B. Altera & Richard S. Pakola, Master Environmental
Edition II. All the Information the Security of the Nation Permits, 58 A.F. L. REV. 1, 7
(2006) (describing a post-Watergate general increase in distrust of government).
3. See The Wiretap Act and FISA, supra note 1.
4. See United States v. United States Dist. Court, 407 U.S. 297 (1972) [hereinafter
5. See Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006); ACLU v.
NSA, 493 F.3d 644 (6th Cir. 2007).

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