America's Secret Court

(Here is some heavy stuff that is still relevant today. Written before the attacks on the World Trade Center of September 11, 2001. Do take a look at this piece, and share with us your thoughts. We would like to thank Paul and Joan for their contribution.)

-Eric Williams, Executive Director International Access Networks
Wednesday, January 11, 2006


By PAUL DERIENZO and JOAN MOOSSY,
5118 words


Second North American and all other rights available.



The Foreign Intelligence Surveillance Court deliberates in a vault-like room in the Dept. of Justice in DC. It issues no written opinions, and since 1978 has yet to turn down even one of some 10,000 requests for wiretaps and search warrants.



First appeared in Penthouse. Updated September 23, 2001


Preface

The tragedy that struck the World Trade Center in New York City and the Pentagon, on the banks of the Potomac on September 11th happened without warning--and except for the brave passengers on United Airlines flight 93--without resistance. How could the mightiest power on earth, the only global superpower, fall victim to a relatively small group of conspirators? The answer may lie in the penchant for our counter intelligence folks to use racial, ethnic and cultural profiling to target their suspects. Incidents of agents barking down a wrong tree while bad guys operate freely, plotting unspeakable acts of violence directly on US shores are all to common. The false prosecution of nuclear scientist Wen Ho Lee, the failure to detect FBI counterintelligence Agent and traitor Robert Hanssen, and now the failure of intelligence agencies to discover and stop the World Trade Center and Pentagon attackers. Although many pundits and officials have asked the public not to play the "blame game" this article clearly demands that Americans demand immediate accountability over the lapses by the intelligence community that allowed these horrendous attacks. This article is the story of one of the most important legal counterspy tools, the Foreign Intelligence Surveillance Act (FISA) and how although it was designed to limit governmental abuses of power this law may be helping to create a police state. It's the story of how personal ambition and a lack of clear moral and ethical guidelines can put our most cherished freedoms in peril.

--Paul DeRienzo and Joan Moossy NYC, September 23, 2001

Imagine a secret court made up of anonymous judges chosen by the Chief Justice of the United States and empowered to grant wiretaps, approve break-ins, bug psychiatrists' offices and people's homes-all without probable cause that a crime has been or is being committed. Its hearings are conducted in secret, without notification of the proposed targets and under a novel definition of due process that allows suspension of long-held civil rights in the name of national security. Once the subject of an investigation is judged a "foreign power or agent of. a foreign power," a much lower standard than "probable cause," surveillance can begin and the targets cannot challenge the evidence, answer the charges brought against them, or in many cases even know the surveillance has taken place. Such a secret court does in fact exist. It was created in 1978 under a law known as the Foreign Intelligence Surveillance Act, which was designed to limit the sort of abuses of authority committed by the administration of President Richard M. Nixon and FBI Director J. Edgar Hoover. But according to many legal experts, FISA may in fact facilitate the creation of a police state. Even staunch conservatives are troubled by this legislation. Yale Law School professor and former Supreme Court candidate Robert Bork has said that FISA would "not be the first regulatory scheme that turned out to benefit the regulated rather than the public."

The roots of FISA lie in the social upheavals that convulsed the country in the 1960s and 70s. During that time, countless citizens were drawn into a plethora of political-activist groups, from the civil-rights movement to anti-war organizations. Demonstrations and riots rocked cities and college campuses as Americans began to question seriously the government's war in Vietnam. The federal government moved quickly to stanch the tide of opposition and social change through a program of dirty tricks and unprecedented violations of personal rights and privacy, often justified as necessary for national security.

The government's abuse of the Constitution eventually reached its height with the Watergate break-in and subsequent scandal that resulted in the near-impeachment and consequent resignation of President Nixon, who had ordered break-ins, known as black-bag jobs, against his Democratic opponents in the 1972 election. To defend his actions, Nixon argued that the president has an "inherent authority" as chief executive to suspend the Constitution in an emergency. Abraham Lincoln had limited habeas-corpus rights during the Civil War, and Franklin Roosevelt had interned thousands of Japanese-Americans in camps after Pearl Harbor.

Public outrage over Nixon's abuses led to a 1976 investigation by the Senate Select Committee on Intelligence. Testimony before the committee, which was headed by Senator Frank Church of Idaho, revealed that the nation's intelligence agencies had consistently ignored and violated the Constitution for more than a quarter century. Among other abuses, the FBI was held responsible for the infamous COINTELPRO counterintelligence program that targeted those whom Hoover and Nixon perceived as political enemies: the Black Panther party, the American Indian Movement, and a host of popular leaders, including the Reverend Martin Luther King, Jr., and Malcolm X. To Senator Church, all this was "one of the sordid episodes in the history of American law enforcement."

The findings of the Church Committee clearly established that there needed to be strict separation of federal law enforcement from the government's counterintelligence activities. Ever since passage of the Omnibus Crime Control Act of 1968, electronic surveillance in criminal investigations has required a warrant signed by a judge. But the '68 law had left open an exception in cases of national security - a loophole exploited by Nixon and his cronies. As designed ten years later, the primary purpose of FISA was to gather counterintelligence information, not to make criminal prosecutions. Surveillance would be conducted under the guidance of the Justice Department, employing a team of lawyers to work with the attorney general and the FBI An innovation proposed by then Attorney General Griffin Bell created a special court of sitting federal judges who would approve FISA wiretaps the same way judges approve criminal wiretaps.

The main targets of FISA were supposed to be foreign intelligence agents working as part of their country's diplomatic missions in the United States. Although the U.S. Supreme Court has yet to hear a FISA case, lower courts have ruled that "once surveillance becomes primarily a criminal investigation ... individual privacy interests come to the fore and government foreign-policy concerns recede." Yet the fact that evidence acquired from a FISA surveillance can be used to make a criminal prosecution has led some critics to charge that the FBI is taking advantage of the law to make arrests. Asserts American University law professor and Nation magazine commentator Herman Schwartz, "FISA has not eliminated the incentive to use intelligence-gathering authority improperly to obtain evidence for criminal prosecutions."

A famous example of this impropriety is the case of former high-level CIA official Aldrich Ames, who was sentenced to life imprisonment in April 1994 for spying for the Soviet Union. Although Ames eventually pled guilty to espionage, his lawyers say the government undermined the rights of all Americans, loyal or otherwise, in the way they went after him. Prior to 1995, FISA specifically allowed national-security wiretaps but not searches without probable cause. The 17B.I., lacking enough evidence to prove Ames had committed a crime but eager to catch him, went to then-Attorney General Janet Reno in October 1993 and convinced her to allow a search of Ames's home without a warrant from a judge. It boils down to a sticky issue, since the most important right protected by the Fourth Amendment and enshrined in a thou sand years of legal precedent is the right to be safe from a search in one's own home. Is it wrong for the government, even in the name of a legitimate national security investigation, to violate the Constitution?

Ames's lawyer, Preston Burton shrugs off the disappointment of not having had the opportunity to argue the constitutionality of the search. "It would have presented some very interesting legal issues that the courts have not clearly grappled with-and now they don't have to," he says, "because [Congress has] remedied the problem." Indeed, within a year of Reno's action, Congress had amended FISA, permitting the Foreign Intelligence Surveillance Court to grant search warrants without probable cause. President Bill Clinton broadened that power in February 1995 with an executive order allowing the attorney general and other top-level officials to approve physical searches without a court order if the purpose is "to acquire foreign intelligence information." According to Burton, despite the real threat of spies and terrorists targeting the U.S., "the argument that there is a national-security exception [to the Constitution] is a dangerous animal, because what that is hard to define."

The Foreign Intelligence Surveillance Court deliberates behind heavy, spyproof doors in a windowless, vault-like room in the headquarters of the Department of Justice. It issues no written opinions, and since 1978 has yet to turn down even one of some 10,000 requests for wiretaps and search warrants. It's a frightening record, even to dedicated Justice Department lawyers like Richard Scruggs, who examined FISA surveillance applications in 1995 and found that "there were so many FISAs being conducted with so few attorneys that the review process to prevent factual and legal errors was virtually nonexistent."

Suspicions that COINTELPRO may not have been put out of business with the Church Committee hearings grew in the mid-1980s, after the FBI admitted it had paid informants to spy on domestic political and religious groups associated with the Committee in Support of the People of El Salvador. Although the bureau was never directly implicated in the campaign of dirty tricks launched against C.I.S.P.E.S., many began to see a familiar pattern of abuse. "Under the Clinton administration," Scruggs wrote in his 1995 report to the Justice Department, "the nation's two systems for wiretapping-[Title 111] for criminal cases and [FISA] for intelligence gathering[have] become freight trains running at full throttle down parallel tracks." Despite the collapse of the Soviet Union and the Communist bloc, FISA wiretap and search authorizations increased dramatically, from 484 in 1992 to 839 in 1996, before leveling off at 749 in 1997 (Domestic criminal wiretaps increased from 340 to 569 in the same period.)

There are seven judges on the FISA court, appointed to staggered seven-year terms by the Chief Justice. Cases are brought by the attorney general acting for the FBI or any other agency of the executive branch, including the super secret National Security Agency Hearings are held every two weeks, and in the event a warrant application is turned down, the government can take its case to what has become known as the "Maytag repairmen" of the judicial system, the Foreign Intelligence Board of Review, a court that Chief Justice William Rhenquist once remarked was "the easiest job you can have," because it never gets any appeals.

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