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By William Fisher
There is a windowless room on the seventh floor of the US Department of Justice building in Washington. Very few Americans know it’s there or what happens within its walls. Outside the US, even fewer people know of its existence. This is the home of America’s most secretive court: the Foreign Intelligence Surveillance Act Court (FISAC). And we need to know about it because what it does or doesn’t do can have a huge impact on the War Against Terror – and, many complain, on US civil liberties.
Here’s the background: The Court was established by Congress in 1978 as a Cold War tool to conduct secret domestic investigations of alleged enemy agents. In those days, it had little to do. Today, it is a virtual hive of activity, one of the principal centers of the Government’s domestic counter-terrorist activity. It is the origination point for Justice Department requests for “warrantless warrants” authorizing the FBI to conduct secret domestic wiretaps and other forms of snooping. The Department of Justice obtained 113 secret emergency search or electronic-surveillance authorizations in the year after 9/11, compared with 47 in the 23 years since its founding.
The court was originally established by Congress as part of the Foreign Intelligence Surveillance Act, but is now incorporated into what has become known as the USA Patriot Act. The Patriot Act was rushed through Congress without hearings six weeks after 9/11. It is staunchly defended by the Justice Department, which would like to see it expanded, while civil libertarians on both the Left and the Right continue to raise legal, moral and ethical questions about many of its provisions.
The seven judges who preside over the FISAC are appointed by the Chief Justice of the US Supreme Court, William A. Renquist. All are semi-retired Federal Judges. Atop the FISAC is the previously unknown Foreign Intelligence Surveillance Act Court of Review. (FISACR). The Review Court adjudicates disputes between the FISAC and the Justice Department. Its three judges are also semi-retired Federal Judges appointed by the Chief Justice. All are conservatives named to the bench by President Reagan. Until recently, the Review Court had virtually nothing to do; it heard its very first appeal – regarding implementation of part of the Patriot Act -- in 2003.
Here’s how the FISAC works. When Congress passed the original FISA, it put a “wall” between intelligence and law enforcement agencies after domestic spying abuses in the 1960s and 1970s. Federal Intelligence agencies have traditionally been forbidden to conduct domestic investigations, and the FISA Act continued to require strict court supervision over domestic intelligence efforts.
But the USA Patriot Act broke down those barriers. Among other things, it loosened standards for obtaining warrants. Prior to the passage of the new law, government officials had to prove their “primary” purpose for monitoring was foreign intelligence. Prosecutors in criminal cases must meet higher legal standards to win approval for searches or wiretaps than in intelligence cases. The Patriot Act changed the surveillance law to permit its use when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose" of an investigation. Backed by the new provisions, US Attorney General John Ashcroft dispatched a memorandum to FBI Director Robert Mueller and senior Justice Department officials, outlining ways to make it easier for investigators in espionage and terrorism cases to share information from searches or wiretaps with FBI criminal investigators.
But FISAC found, unanimously, that Ashcroft had pushed the envelope too far. His proposed procedures had lowered the "wall" between criminal investigations and intelligence gathering too much, and its provisions for sharing information between the two sides were "not reasonably designed" to prevent misuse of information in criminal cases. The ruling by the court came in a case in which the Justice Department approached FISAC for approval of surveillance of a US citizen who was alleged to be "aiding, abetting or conspiring with others in international terrorism."
The Court also said it had been misled dozens of times by the FBI and Justice Department officials. Documents released at the time showed that the court, which had not publicly disclosed any of its rulings in nearly two decades, said FBI and Justice officials in pursuit of search warrants or wiretap authorizations to spy on suspected terrorists had supplied erroneous information to the court on 75 occasions. The information was made public only because powerful members of a US Senate Committee demanded the documentation. Some of what they received:
§ In March 2000, the government revealed to the Court "disseminations of FISA information to criminal squads in the FBI's New York field office, and to the U.S. attorney's office for the Southern District of New York, without the required authorization of the Court as the 'wall' in four or five FISA cases."
§ In September 2000, "the government came forward to confess error in some 75 FISA applications related to major terrorist attacks directed against the United States. These included: a) an erroneous statement in the FBI director's FISA certification that the target of the FISA was not under criminal investigation; b) erroneous statements in the FISA affidavit of FBI agents concerning the separation of the overlapping intelligence and criminal investigations, and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys; and c) omissions of material facts from FBI FISA affidavits relating to a prior relationship between the FBI and a FISA target, and the interview of a FISA target by an assistant U.S. attorney.
§ In November 2000, the Court convened a "special meeting to consider the troubling number of inaccurate FBI affidavits in so many FISA applications." The Court made clear it would not accept inaccurate applications and demanded an investigation.
§ In March 2001, the government had to reveal yet another series of mishaps; in a situation where a "wall" had supposedly existed between separate intelligence and criminal squads, it turned out that "in fact all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations."
The court also said that intelligence gathered about terror suspects had been improperly shared with prosecutors and FBI agents handling criminal investigations. Because of these alleged improprieties, FISAC imposed restrictions on the procedures formulated by Ashcroft. The court said the information-sharing proposal was "not reasonably designed" to safeguard the privacy of Americans. The Court modified the procedures to require that whenever law enforcement officials meet with intelligence officers, such consultations and coordination must always include someone from Justice's Office of Intelligence Policy and Review, the office that works most closely with the Court and presents to it all applications for warrants.
But Justice bristled at the requirement for a "chaperon" being present at all meetings between the two sides. A senior Justice official said that requirement was a "significant procedural impediment." It took the case to the FISA Review Court, which lifted some restrictions placed on wiretaps and the sharing of information between law enforcement and intelligence officials. Ashcroft said the ruling, the first ever by the US Foreign Intelligence Surveillance Review Court, "revolutionizes our ability to investigate terrorists and prosecute terrorist acts."
Others were not as pleased. "We're disappointed with the decision, which suggests that [the spy court] exists only to rubber-stamp government decisions," said the American Civil Liberties Union.
Congressman John Conyers, Jr., Ranking Member of the House Judiciary Committee and Dean of the Congressional Black Caucus, issued the following statement regarding the decision to give the Justice Department broad authority in conducting wiretaps and other surveillance on terrorism suspects within the United States:
"Not only is this a despicable ruling, it is a ruling that was decided in secret behind closed doors. What the public does not know is that the court heard only a one-sided argument by the Justice Department and FBI, which have repeatedly lied and misinformed the lower FISA court when seeking authorizations for secret wiretaps and physical searches…The Administration's race down the slippery slope of eroding constitutional safeguards seems to have no end in sight. Today's disappointing decision constitutes an embarrassing step backwards for civil liberties in this country. Piece by piece, this Administration is dismantling the basic rights afforded to every American under the Constitution….”
And just this week, the Inspector General of the Justice Department reported there is a double standard of discipline, a lenient one for management and a strict one for employees.
Despite the Justice Department’s having amended its guidelines to win the FISA court's approval, the Bush administration took its case to a Federal Appeals Court. It challenged the spy-court's restrictions on the sharing of information between terrorism investigators and criminal investigators. In the appeal, Ashcroft said the lower court failed to acknowledge that the new law, passed in response to the Sept. 11 attacks, altered the standard lawyers must meet when seeking to monitor a person and share information between criminal detectives and terrorism investigators. Under the act, Ashcroft argued, federal lawyers may share information and monitor people in cases in which law enforcement is the primary interest. Government lawyers need only show there is a ‘significant’ foreign intelligence purpose related to the activity, Ashcroft said.
The Appeals Court overturned the FISAC decision, and ruled that the Justice Department has broad discretion in the use of wiretaps and other surveillance techniques to track suspected terrorists and spies. The ruling allows the Justice Department to get wiretap authority in the FISA secret intelligence court, under more relaxed standards than used in a regular criminal court, even if the investigation is not exclusively concerned with terrorism.
The 56-page opinion by the three-judge appeals panel overturning the FISAC decision said the expanded wiretap guidelines sought by Attorney General John Ashcroft under the new USA Patriot Act law do not violate the Constitution.
Critics said they feared government might use the change to employ espionage wiretaps in common criminal investigations, and there is growing evidence that this has indeed happened. The American Civil Liberties Union and several other groups argued that Ashcroft's proposed guidelines would unfairly restrict free speech and due process protections by giving the government far greater ability to listen to telephone conversations and read e-mail.
Senators Patrick Leahy (D-Vt.), Charles Grassley (R-Iowa) and Arlen Specter (R-Penn.) released a report concluding that the same systemic problems facing the FBI that were highlighted by Judiciary Committee oversight hearings held during the 107th Congress also affected its ability to fight terrorism both before and after the attacks of September 11. The report also outlined those agencies’ lack of cooperation in Congressional efforts to oversee their performance. The Report underscored the need for openness and oversight of the Justice Department and FBI. It also called for increased Congressional oversight of FBI efforts to snoop on public, high schools and university library users.
“No one is questioning the government's authority to prosecute spies and terrorists,” said Ann Beeson, litigation director of the ACLU's Technology and Liberty program. “But we do not need to waive the Constitution to do so.”
And a New York Times editorial found “more disturbing” the court's “substantive decision and the way the Justice Department is interpreting it. The decision gives the government a green light to remove the separation that has long existed between officials conducting surveillance on suspected foreign agents and criminal prosecutors investigating crimes. Attorney General John Ashcroft has announced that he intends to use it to sharply increase the number of domestic wiretaps, and that he will add lawyers at the F.B.I. and at federal prosecutors' offices around the country to hurry the process along. The Supreme Court should step in to restore the lower court's ruling, and Congress should redraft its statutes to clear up any confusion about what the law requires. One of the biggest challenges the nation faces is fighting foreign enemies without sacrificing civil liberties at home. Yesterday's ruling failed to rise to that challenge.”
An edited version of this article appeared in The Daily Star newspaper, Beirut.