IP: Secrecy might be weak link in wiretaps

["Vladimir Z. Nuri" <vznuri@netcom.com>]

From: believer@telepath.com
Subject: IP: Secrecy might be weak link in wiretaps
Date: Wed, 30 Sep 1998 10:57:09 -0500
To: believer@telepath.com

Source:  USA Today
http://www.usatoday.com/news/nds1.htm

09/29/98- Updated 11:55 PM ET
 The Nation's Homepage

Secrecy might be weak link in wiretaps

 ALEXANDRIA, Va. - Intelligence officials increasingly rely on
 wiretaps authorized by a secret federal court to keep track of foreign
 spies and potential terrorists. 

 But an espionage trial set to begin in federal court here next Tuesday
 highlights what even the secret court's supporters admit is its weakness:
 The court's secrecy can make it very difficult for defendants caught on
 the wiretaps to defend themselves. 

 "If my client had been wiretapped based on (an ordinary federal)
 warrant, you can bet I'd be all over it," says Richard Sauber, a
 Washington, D.C., lawyer defending accused spy Kurt Stand. 

 "But this isn't an ordinary warrant. Under law I can't find out what the
 wiretap was based on, whether the information was flawed, whether
 the judge was correct to authorize it. There's a fundamental issue of
 fairness here," Sauber says. 

 Ironically, fairness was cited as the issue in 1978, when the Foreign
 Intelligence Surveillance Act (FISA) created a special secret court for
 authorizing wiretaps on suspected spies. 

 The FISA court was created by Congress as a check against the
 power of presidents, who until then had authorized wiretaps and
 warrantless searches on their own say so in the interest of national
 security. 

 The law requires the Justice Department, and usually the FBI or the
 National Security Agency, to show a judge that the target is a foreign
 government or agent engaging in "clandestine intelligence gathering
 activities" or terrorism. "The spirit of the thing is to hold the (wiretap
 requests) to a high legal standard," says William Webster, director of
 the FBI when FISA was passed. "That's a large departure from the
 way things had been done." 

 Now, investigators prepare a written request and run it by Justice
 Department lawyers. Justice certifies that the tap's primary purpose is
 to gather intelligence, though information gleaned can be used in
 criminal cases. 

 The request then is presented to one of seven FISA judges, who are
 U.S. district court judges appointed by the chief justice to authorize
 intelligence wiretaps. Many of the requests are heard in a soundproof
 sixth-floor conference room in the Justice Department's main
 headquarters. 

 The target of the search is not represented. 

 Says David Banisar, researcher for the Electronic Privacy Information
 Center: "There are mistakes made in ordinary warrant processes, from
 getting the wrong address to not having probable cause, and they can
 be corrected when lawyers attack the warrant. " 

 "That can't happen here," he says. "We'll never know how many
 mistakes are made because the (secret) court's proceeding isn't public."

 By Richard Willing, USA TODAY

�COPYRIGHT 1998 USA TODAY, a division of Gannett Co. Inc.
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-----------------------




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