The Secret FISA Court

by Philip Colangelo

Each decision was reached in secret, with no published orders, opinions, or public record	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 story. "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."
Probable cause may result solely from associations or status	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. 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 courts. 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 unconstitutional." 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 adherence to 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 public is expected to accept on blind faith that law enforcement and intelligence agencies are not overstepping their bounds	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. 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."
Most people surveilled remain blissfully ignorant that a search has taken place	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.
Although its powers have been enhanced to include physical searches, the FISA court retains the same low-profile	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 the surveillance. 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 secret court. 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 on the Bill of Rights	This recent strengthening of the FISA court fits comfortably in the pattern established in the late 1970's 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 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 of Rights.

Reprinted by permission from Covert Action Quarterly Available by subscription for $22 (one year) or $38 (two years). Send subscriptions to:

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