- Seven judges on a secret court have authorized all but
one of over 7,500 requests to spy in the name of National Security. They
meet in secret, with no published orders, opinions, or public record. Those
spied on May never know of the intrusion. Now, Clinton has expanded the
powers to include not only electronic, but physical searches.
- The aftershock of the Oklahoma City bombing sent Congress
scurrying to trade off civil liberties for an illusion of public safety.
A good ten weeks before that terrible attack, however with a barely noticed
pen stroke President Bill Clinton virtually killed off the Fourth Amendment
when he approved a law to expand the already extraordinary powers of the
strangest creation in the history of the federal judiciary.
- Since its founding in 1978, a secret court created by
the Foreign Intelligence Surveillance Act (FISA rhymes with ice -a) has
received 7,539 applications to authorize electronic surveillance within
the U.S. In the name of national security, the court has approved all but
one of these requests from the Justice Department on behalf of the Federal
Bureau of Investigation and the National Security Agency. Each of these
decisions was reached in secret, with no published orders, opinions, or
public record. The people, organizations, or embassies spied on were not
notified of either the hearing or the surveillance itself. The American
Civil Liberties Union was not able to unearth a single instance in which
the target of a FISA wiretap was allowed to review the initial application.
Nor would the targets be offered any opportunity to see transcripts of
the conversations taped by the government and explain their side of the
- Without access to such materials, said Kate Martin of
the ACLU, targets of FISA searches are denied any meaningful opportunity
to contest the basis for the execution of the FISA search.
- OPEN-ENDED SURVEILLANCE
When Clinton signed Executive Order 12949 on February 9, the frightening
mandate of the FISA, court was greatly expanded: It now has legal authority
to approve black-bag operations to authorize Department of Justice (DoJ)
requests to conduct physical as well as electronic searches, without obtaining
a warrant in open court, without notifying the subject, without providing
an inventory of items seized. The targets need not be under suspicion of
committing a crime, but may be investigated when probable cause results
solely from their associations or status: for example, belonging to, or
aiding and abetting organizations deemed to pose a threat to U.S. national
security. Furthermore, despite a lowered standard for applying the Fourth
Amendment against unreasonable search and seizure than is necessary in
other U.S. courts, under the 1995 expansion, evidence gathered by the FISA
court may now be used in criminal trials. Previously, evidence was collected
and stockpiled solely for intelligence purposes.
- LEGALIZING THE AMES SEARCH
Granting new powers to the FISA court was accomplished quietly and treated
as a non-event in the national media. The lack of reporting was somehow
fitting, though, following as it did the silent debate last year when Congress
rubberstamped the annual Intelligence Authorization Act.
- Some legal minds found the whole exercise positively
refreshing. The fact that this was done with a minimum of fuss and posturing
on both sides, and without having to have a debate that tries to roll up
the corners of classified information is very impressive, cheered former
NSA General Counsel Stewart Baker.
- Reportedly, the Clinton administration had not always
been enthusiastic about expanding the court's powers. Like its predecessors,
it operated under the assumption that the executive already had inherent
authority to exempt itself from Fourth Amendment constraints and could
order warrantless searches to protect national security. Nonetheless, the
government avoided allowing this inherent authority to be tested in the
- Then along came Aldrich Ames. The spy case proved a convenient
vehicle on which to hitch expansion of state power. It also offered a glimpse
at the state-of-the-art domestic counterintelligence techniques that might
well be turned on an activist group near you. Following months of electronic
and physical surveillance which included a break-in of Ames' car and searches
through his office and family trash FBI agents were finally turned loose
in the early morning hours of October 9, 1993. They didn't `pick' locks
like in the movies; they made their own keys. Among other agents in the
FBI, the consensus was unanimous: The tech agents were geniuses.
- Thanks to a warrant authorized by Attorney General Janet
Reno, a team of agents from the sprawling National Security Division had
permission to enter the Ames home in Arlington, Va. There was only one
minor problem. The attorney general of the United States does not have
the authority to order a warrantless physical search of a citizen's home,
argued Professor Jonathan Turley of George Washington University National
Law Center. The Aldrich Ames search in my view was obviously and egregiously
- Other civil liberties lawyers agree with this evaluation,
and the Justice Department itself was concerned enough about the question
to refer to this problem when it negotiated a deal with Ames in order to
avoid trial. While Ames was sentenced to life in prison, his wife Rosario
received five years. We didn't get to the point of litigation, I regret
to say, said Ames' lawyer Plato Cacheris. The problem was that Ames very
much wanted to see that his wife was treated a little more softly than
he was being treated.
- Now eager to put a stamp of judicial impartiality on
the hazy executive branch doctrine of inherent authority, the Justice Department
immediately got behind the bill to expand the FISA court's power. Soon
after Ames pleaded guilty last year to spying, administration officials
began arguing that adherenceto traditional Fourth Amendment protections
for American citizens would unduly frustrate counterintelligence efforts
against spies operating in the U.S.
- Physical searches to gather foreign intelligence depend
on secrecy, argued Deputy Attorney General Jamie Gorelick. If the existence
of these searches were known to the foreign power targets, they would alter
their activities to render the information useless. Gorelick went on to
explain that A [traditional] search can only be made when there's probable
cause to believe a crime is involved, whereas a national-security search
can be made at a substantially earlier stage. We often don't know what
we're looking for when we go in, she observed.
- THE PRICE OF SECRECY
The possibility of FISA-sanctioned fishing expeditions was only one of
the potential abuses that alarmed legal scholars and people concerned with
civil liberties. It's absolutely ripe for abuse, said New York City defense
lawyer Ron Kuby. There are hundreds of solidarity groups that American
citizens work with, and all of those groups could be targets under FISA.
16 These groups and individuals, engaged in legitimate dissent and solidarity
work with the victims of U.S. foreign policy around the world, fear that
their First and Fourth Amendment rights will be eroded.
- Others worry that under cover of secrecy, the court would
exceed even its own broad legal mandate. Clearly the FISA court was strengthened
to allow the government to conduct searches they would not be allowed to
conduct under the traditional constitutional provisions, said Turley. That
means the government could attempt and fail to secure a search warrant
under traditional constitutional arguments, then go to the FISA court and
convert the case artificially into a national security investigation and
secure approval for the very same search.
- In the post-Oklahoma bombing atmosphere, the temptation
to broadly interpret national security to include homegrown terrorism is
likely to increase. Defenders of the FISA court point out that there are
lengthy provisions written into the original legislation to minimize the
impact of FISA-authorized surveillance on innocent Americans.
- Of course, since no information about the actions of
the court is permitted to escape the sealed FISA chambers, the public is
expected to accept on blind faith that the minimization procedures are
functioning properly and the various law enforcement and intelligence agencies
are not overstepping their bounds. But given an extensive and well-documented
pattern of past government abuses, Turley's warning of future abuses seems
safe. Even when warrantless searches were unambiguously illegal, the government
conducted thousands of them and violated the civil rights not only of possible
spies, but of people engaged in constitutionally protected dissent. Secret
searches of Americans' homes and papers in the name of national security
were one of the worst civil liberties abuses of the Cold War, noted the
ACLU's Martin. Instead of approving them, the Congress should outlaw them.
- Even if the court and law enforcement agencies did not
overstep their powers, legal scholars assert that warrantless searches
are unconstitutional, no matter what the context or motivation. The court's
defenders, on the other hand, argue that the end justifies the means. Gorelick
recently conceded that the government could not gather as much evidence
under the traditional standard of the Fourth Amendment. By this logic,
notes Kate Martin, It is also true that torture allows the government to
get information it would not otherwise get.
- While refusing to be specific, FBI Director Louis Freeh
argues that national security is so important that it constitutes a special
category. He testified before Congress that, "Because any discussion
of the importance of FISA-based electronic surveillance would involve highly
sensitive matters and highly classified information, suffice it to say
that information derived from FISA electronic surveillance is critical
to the president of the United States, the National Security Council, the
intelligence community, the Department of Defense, and the State Department.
- The Supreme Court, however, has never endorsed the concept
of a national security exception for physical searches. In 1972, it ruled
that the Fourth Amendment prohibits warrantless surveillance of domestic
targets. The Court specifically warned that the danger to political dissent
is acute where the Government attempts under so vague a concept as the
power to protect `domestic security.'
- But given the secrecy surrounding the FISA court, even
finding a test case to challenge incursion on Fourth Amendment rights may
be difficult. Most people surveilled under the authority of the court remain
blissfully ignorant that a search has taken place.
- CASE IN POINT
Among the handful of FISA-tainted investigations that have become public
is the prosecution of Khader Hamide and Michel Shehadeh of the so-called
Los Angeles Eight for their membership in the Popular Front for the Liberation
of Palestine. In that case, Martin said, permanent residents whom the government
sought to deport based on their First Amendment activities were informed
that they had been subject to FISA surveillance. The government then secured
a completely ex parte ruling that the surveillance was legal in a proceeding
in which the [U.S.] residents were not even allowed to participate. That
ruling then foreclosed forever any adversary hearing on the legality of
- In another case, people not themselves targets of a FISA-authorized
telephone tap were hauled into court for having the misfortune of calling
somebody who was under electronic surveillance. In 1988, after activists
Vernon Bellecourt, Bill Means, and Bob Brown phoned a member of the Peoples'
Committee for Libyan Students, they were ordered to testify before a grand
jury investigating the group. When the three men refused to cooperate and
testify even with immunity, they were slapped with a citation for contempt.
James Cacheris was one of the federal judges who issued that citation in
support of the FISA warrant. Five years later, he was appointed to the
- SEVEN MEN AND A RUBBER STAMP
Although its powers have been enhanced to include physical searches, the
FISA court retains the same low profile structure that it had in 1978.
On the first tier are seven federal judges, appointed to staggered seven-year
terms by the chief justice of the Supreme Court. Each judge takes a turn
reviewing applications submitted by the attorney general. He or she sits
in a sealed, vault-like chamber on the top floor of the Justice Department
headquarters, where the door is always locked and guarded and the room
is regularly inspected for bugs.
- In the unlikely event that the first tier rejects an
application, the Department of Justice can appeal to the FISA Court of
Review. Should this three-member panel of judges also deny the request,
it could then be heard by the Supreme Court. Those last two progressions
up the judicial hierarchy have proved strictly unnecessary, however. Federal
Judge Robert W. Warren from Wisconsin, senior panelist on the second tier
FISA Court of Review, joked that he has not exactly been overwhelmed by
the workload since his appointment in 1989.
- We've never met since I've been on it, said Warren. I
was sent a designation by the Chief Justice, and I asked a couple of people
what in the world the court did because I had not even heard of it before
I got that designation. I also had some correspondence with my brethren
on the court and we've talked to each other and said, `What are we supposed
to do?' and, `When is something going to happen?' Nothing ever has happened.
It's an empty title as far as I am concerned at this point.
- Based on the remarkable record of servility the first-string
spy court has achieved on surveillance requests 15 years with only one
rejection, and that one on technical grounds new requests for physical
searches are unlikely to cut into the Review Court's happy schedule.
- THE NOOSE TIGHTENS
This recent strengthening of the FISA court fits comfortably in the pattern
established in the late 1970s after the massive FBI crime spree against
political activists. When the illegalities were documented by the Senate's
Church Committee instead of stepping in and stopping political policing
activities by DoJ and intelligence agencies Congress took exactly the opposite
approach. It waved a flag over a pattern government activities that had
been criminal, draped it in authoritative language, and magically made
it all legal. Since that time, through a series of laws and executive orders,
policy-makers have further chipped away at freedoms previously presumed
to be sacred.
- With the FISA court now able to authorize physical searches
as well as electronic surveillance simply by citing national security concerns
the elite legal circle is nearly complete. The act is a triumph for our
constitutional system of checks and balances, former Indiana Sen. Birch
Bayh explained in the twilight of the Cold War. It establishes that the
authority to conduct foreign intelligence surveillance in this country
will be shared by all three branches of government.
- In the aftermath of the Oklahoma City bombing, Democrats
and Republicans are competing to come up with more ingenious ways to erode
civil liberties. Congress will likely pass a beefed up Omnibus Counterterrorism
Act which will (see pp. 50-52) create secret FISA-like courts in which
non-citizens can be investigated and deported without access to evidence
or recourse to appeal. Given the current political atmosphere, the Clinton
administration's past support for expanding the FISA court's authority,
as well as a long, sorry history of abuse, the elite legal posse will no
longer need to strain very hard to pull the noose right around the Bill
- From Tim Hunter firstname.lastname@example.org To: email@example.com
Date: 11-25-00 Subject: Foreign Intelligence and Surveillance Act
- Contact Washington, DC attorney Ern Reynolds for leads.
Ern has tripped over FISA a number of times, is getting to be an expert.
Four years ago he never heard of it.
- Each FISA plaintiff is not notified of the charges, is
not advised of the trial date, not allow a public trial, not allowed to
appear in his own defense, not allowed counsel, not allowed to rebut testimony,
not allowed a transcript of the proceedings, and not allowed to appeal.
In fact, (this is the incredible part) the accused is not allowed to be
present at his trial. A real Federal District Court Judge presides over
this sorry excuse for legality, and they rotate on some cyclical basis.
Access to the FISA Court is actually provided several agencies, not only
the CIA. No Federal agency has ever lost a case in FISA Court (hard to
believe) except one case. In that case the judge let the agency refile
and then the agency/court (hard to tell them apart) successfully convicted
- Before the 1978 Act agencies didn't have to bother with
the FISA Court and just went out and "did their thing." In an
odd way the FISA Court is actually a tiny step in the right direction.
Problem is there haven't been any more steps in the right direction!
- The CIA's activity in the US is well known and gets crazier
and crazier. The branch of the CIA carrying missions within the US is the
same as overseas: the Clandestine Service. While its motives are often
excellent, patriotic, etc they are "result-oriented" and disinterested
in the fact that their actions violate the rule of law and even good intelligence
practices. Many of their targets are bad guys who should be given a fair
trial, etc. Put another way, these boys prefer the streamlined approach
of the spy/assassin to the hard labor of real police. Since there is
no effective oversight of their work, they tend to wind up doing the wrong
thing for the right reasons and are unheralded. Some of them are defiantly
criminal and take pride in using the CIA as their front. Who can blame
them? It surely takes a skilled and talented criminal to make the CIA
- Tim Hunter
- Intelligence Forum (http://www.intelforum.org) is sponsored
by Intelligence and National Security, a Frank Cass journal (http://www.frankcass.com/jnls/ins.htm)
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