CAQ - Secret FISA Court Violates Rights (fwd)

[Brad Dolan <bdolan@use.usit.net>]

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Subject: CAQ - Secret FISA Court Violates Rights


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THE SECRET FISA COURT: RUBBER STAMPING ON RIGHTS
by Philip Colangelo

Part 1 of 3

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.  *2 

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. *3 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.  *4
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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,5 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.
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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. *6 

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. *7
 
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. *8 
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.  *9 

 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.10

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. 11

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.  *12

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.13  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. 14 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.15 
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