FISA RISA

[Matthew X]

The Limits of Trust
Friday, August 23, 2002; Page A26
SINCE THE SEPT. 11 attacks, the Bush administration has argued that law 
enforcement and intelligence agencies can be trusted to wield broad new 
powers -- both those additional powers voted into law last year and powers 
still under consideration. Officials have in many instances brushed aside 
suggestions that accountability and openness should accompany these new 
authorities. And their "trust us" mantra has largely carried the day as 
Congress has approved intrusive new powers for the executive branch. So it 
is no wonder that the Justice Department did not hasten to produce to Sens. 
Patrick Leahy, Charles Grassley and Arlen Specter a copy of an 
extraordinary May 17 opinion by the seven judges of the Foreign 
Intelligence Surveillance Court. The work of this super-secret tribunal, 
which considers government applications for search warrants and wiretaps in 
intelligence matters, almost never sees the light of day -- in fact, this 
is the first opinion the full court has published since its creation in 
1978. But in this instance, the judges themselves, responding to a request 
by the senators, took action to make sure that the senators and the public 
saw their unprecedented, unclassified opinion. The opinion, which the three 
senators released yesterday, paints a disquieting portrait of the FBI's 
trustworthiness, or lack thereof, in some of the most sensitive matters it 
handles.
The opinion was written in response to a Justice Department proposal to 
change the rules governing the relationship between prosecutors chasing 
criminals and intelligence operatives chasing information. In criminal 
cases, prosecutors generally must show probable cause of criminal activity 
before a judge will allow them to wiretap or search a suspect. The Foreign 
Intelligence Surveillance Act (FISA) authorizes such intrusive surveillance 
for intelligence purposes with a less rigorous showing. While this material 
can end up being used in a criminal case, the lower standard is 
constitutional only because the statute's purpose -- and the purpose of the 
surveillance -- is to gather foreign intelligence. So the FISA judges have 
historically been careful to make sure that criminal prosecutors were not 
directing surveillance under the law as a way of bypassing the strictures 
of domestic criminal rules. In the USA Patriot Act, Congress substantially 
lowered the wall between intelligence-gathering and crime-fighting; the 
Justice Department argued to the court that the new law meant the judges 
should ease up and stop insisting that prosecutors not take over 
intelligence surveillance. The court said no. It cited a variety of legal 
considerations, but underlying these was another factor: The judges report 
that the FBI has not played straight with them over the role prosecutors 
have been playing in the process in the past.
In September 2000, the judges recount, the government "came forward to 
confess error in some 75 FISA applications related to major terrorist 
attacks directed against the United States." These errors almost uniformly 
"involved information sharing and unauthorized disseminations to criminal 
investigators and prosecutors." They included an "erroneous statement" by 
then-FBI Director Louis Freeh and misrepresentations in the FISA 
applications of FBI agents concerning "the separation of overlapping 
intelligence and criminal investigations." They also included "omissions of 
material facts from FBI FISA affidavits relating to a prior relationship 
between the FBI and a FISA target." Furthermore, the judges complain that 
they have yet to receive any explanation of how they came to be misled, 
despite the fact that internal investigations have been ongoing "for more 
than one year."
Attorney General John Ashcroft is not blamed for these transgressions. Most 
or all of the misstatements appear to have taken place during the prior 
administration, and the court notes that the department and bureau wrote 
new rules last year to ensure the accuracy of FISA applications. The 
judges, moreover, appear to have no complaints about the quality of 
applications since Sept. 11. But the fact that dozens of FBI 
representations to a federal court handling issues of such sensitivity 
could turn out to be false raises questions both about current proposals to 
expand the government's FISA powers and about other situations in which the 
government asks judges and the public to accept its actions and statements 
on faith. If the FBI can botch 75 affidavits in the famously rigorous FISA 
process, is it not possible that the military might have made an error, 
say, in the spare two-page declaration it is using to justify the 
indefinite detention of likely American citizen Yaser Esam Hamdi? And isn't 
some measure of oversight -- such as the FISA judges and the senators are 
providing in this instance -- a healthy antidote?
The government has no experience with losing before the FISA court, which 
has never turned down a surveillance request. This opinion, in fact, has 
produced the first appeal ever of a FISA court action -- and thus the first 
case ever heard by a special FISA appeals court that has never previously 
had to convene. Whatever happens in that uncharted territory, the FISA 
court has raised critical questions that Congress needs to pursue before 
granting further new powers to the government. Members need to satisfy 
themselves that the problems the FISA judges have identified have truly 
been corrected and that adequate safeguards of openness and accountability 
are built into any enhanced surveillance powers.
http://www.washingtonpost.com/wp-dyn/articles/A51447-2002Aug22.html