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. ----------------------- NOTE: In accordance with Title 17 U.S.C. section 107, this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml ----------------------- ********************************************** To subscribe or unsubscribe, email: majordomo@majordomo.pobox.com with the message: (un)subscribe ignition-point email@address ********************************************** www.telepath.com/believer **********************************************