Where I Stand: Taggants, wiretaps effective in fighting terrorists

Monday, Sept. 9, 1996 | 11:59 a.m.

ACTS OF DOMESTIC terrorism have increased dramatically in recent years. According to published reports, the incidence of bombings and attempted bombings in the United States has grown by more than 50 percent in the past five years and has approximately tripled over the past decade, reaching nearly 3,200 by 1994.

Since becoming U.S. attorney, I have also seen the number of bombing cases in Nevada soar. The cowardly criminals who commit these acts of terrorism single out federal and state employees as targets. They have victimized citizens in the private sector as well.

In 1993, Nevada Highway Patrol Trooper Ken Gager was seriously and permanently injured by a mail bomb that was sent as an act of revenge for a routine traffic stop Gager had made. Two men have been convicted and sentenced to long prison terms as a result of the manufacture and delivery of that homemade explosive device.

Convictions have also been obtained of two men who used a 30-gallon plastic drum packed with 100 pounds of fertilizer soaked in kerosene in the Dec. 18, 1995, attempt to blow up the Internal Revenue Service building in Reno. Fortunately the device's failure to function prevented loss of life or property damage.

Prosecutions are pending against four people charged in a conspiracy to prevent workers from crossing a picket line at a Southern Nevada manufacturing plant. Some defendants have been charged with using destructive devices to commit arson directed toward the workers' personal vehicles.

These cases illustrate that bombs can be easily assembled not only by sophisticated terrorists but by simple criminals. In Southern Nevada, federal agents have succeeded in purchasing numerous homemade pipe bombs for prices ranging as low as $50. The Internet and various publications provide readily obtainable information on how to build powerful destructive devices with materials available at any local hardware store. One such pipe bomb, hidden in a small radio, killed three people in Utah and blew a crater six feet in diameter.

Although law enforcement efforts seek elimination of these deadly devices before they explode, the reality is that bombing crimes occur and must be solved. In Nevada, law enforcement officials continue to investigate three unsolved bombing cases: the bombing of the BLM building in Reno and two bombings apparently directed at U.S. Forest Service employee Guy Pence while stationed in Carson City.

Law enforcement needs the tools to track down these gutless criminals who use bombs for sneak attacks on the unsuspecting and innocent. Recent federal legislation proposed two crucial weapons that deserve careful consideration, the use of taggants to trace explosives and the adaptation of wiretaps to meet current criminal technology. Much rhetoric, but little reality, has followed both proposals.

Taggants are unique particles in explosives which, after detonation, will survive the blast. Inserting these small tracing elements in explosive products would permit the scientific identification of the source of the explosive powder. This evidence would not automatically lead to the bomber, but would provide a trail to the manufacturer and from there to the original purchaser.

Opponents of taggants claim that powders will become unstable and therefore dangerous and that the cost of manufacturing explosives will increase. Manufacturers also fear civil liability for explosives that are used criminally or become unsafe. A study is under way to evaluate these concerns. However, they appear unfounded.

In Switzerland, it is claimed that taggants have helped to solve more than 500 bombing cases, without any apparent safety problems.

Taggants on explosives are simply another means for identification in criminal cases, similar to the use of vehicle identification numbers in tracing stolen cars, the use of fingerprints and DNA tracing. Scientific developments are frequently met with skepticism before gaining acceptance.

Another maligned provision of the proposed crime bill is the enhancement of wiretap availability ("roving wiretaps") to meet advancing criminal technology. This proposal is a modest attempt to keep pace with increasing criminal sophistication, not to invade the privacy of ordinary citizens. Criminals evade surveillance by using multiple telephone lines because of a current legal hurdle that impedes wiretaps on multiple phone lines.

Critics fear that such a law would abridge ordinary citizens' rights by allowing authorities to eavesdrop more easily on private conversations. Such concerns harken to a time before there were adequate safeguards to prevent abuses. The Electronic Communications Privacy Act of 1986 places strict limitations on the availability of wiretaps in criminal investigations.

Under current federal law, wiretaps require law enforcement agents to obtain a court order from a federal judge after establishing compliance with stringent legal requirements. There must be an affidavit establishing probable cause to believe that those whose conversations are sought to be intercepted are currently and repeatedly using the telephone to commit federal crimes. Additionally, it must be demonstrated that electronic surveillance is necessary because all other investigative procedures either have failed or are likely to fail or are too dangerous.

Before a wiretap application may be submitted to a federal judge, it must be reviewed and approved not only by a federal prosecutor, but also by a senior Department of Justice lawyer not involved in the specific criminal investigation. The Department of Justice is answerable to Congress, and therefore, the reviewing official has a vested interest in protecting the integrity of the law by preventing wiretaps where there is no compelling need.

Following internal scrutiny, the wiretap is presented to a federal judge, who acts as another gatekeeper, independently testing the merits of the application. If a wiretap is permitted, the interceptions are allowed for only a limited time. The court supervises the wiretap through reports filed every 10 days to determine whether the need for the wiretap continues to exist. The Nevada federal judiciary has historically been extraordinarily conscientious in exercising these responsibilities.

A wiretap done without court approval is a crime. The U.S. attorney's office in Nevada has prosecuted federal and state agents who illegally used electronic surveillance. The office would do so again in cases of abuse.

Contrary to popular opinion, the roving wiretap proposal is not revolutionary. Current law already permits roving microphones ("bugs") and, under certain circumstances, roving wiretaps. The proposed law would simply recognize that criminals do switch telephones for purposes of evading surveillance.

The use of taggants and the availability of roving wiretaps would not trample on the civil rights of ordinary citizens. These tools are adjustments compelled by the increasing sophistication of today's criminal.