Secret Court Takes the Fourth

by DAVID COLE

The Fourth Amendment requires probable cause of a crime before a phone can be tapped or a home searched. On Monday, a special federal appellate court, meeting for the first time in its 24-year history, ruled that the government may conduct secret wiretaps and secret searches of U.S. citizens without probable cause of criminal activity.

The special court decided that, under the Foreign Intelligence Surveillance Act (FISA), law enforcement officials need not comply with that constitutional requirement, even where their primary purpose is criminal law enforcement.

No one doubts the critical importance of foreign intelligence gathering as we struggle to prevent the next terrorist attack. But the appellate court’s bottom line denies to all of us the Fourth Amendment’s most important protection – the guarantee that our privacy is protected from official intrusion absent probable cause of criminal activity. And the process by which the decision was reached is emblematic of an even deeper problem posed not only by the ruling but by the Bush administration’s war on terrorism more generally: an inordinate reliance on secrecy.

FISA was enacted in 1978 to authorize "foreign intelligence" wiretaps and searches. Where the amendment normally requires probable cause of a crime, FISA does not. The rationale was that wiretaps and searches for foreign intelligence gathering ought not be limited by the Fourth Amendment standards generally applicable to criminal law enforcement.

But that premise is questionable. In 1972, the Supreme Court rejected a similar argument about warrantless "domestic-security" wiretaps, holding that they must satisfy traditional Fourth Amendment warrant and probable-cause requirements. The court left open the question of foreign intelligence gathering. But privacy is privacy, and the amendment acknowledges no exception.

To be sure, the Supreme Court has recognized other exceptions to the warrant and probable cause requirements. The appellate court likened a "foreign intelligence" search to drunk-driving checkpoints, which have been upheld on the ground that they serve "special interests" (highway safety) above and beyond criminal law enforcement, impose only minimal intrusions and apply to all drivers on the road. Fighting foreign espionage and international terrorism are certainly "special interests." But no search is more intrusive than a wiretap or a search of one’s home, and FISA searches are targeted at the attorney general’s discretion.

The deeper problem with FISA, and with the war on terrorism generally, is its excessive secrecy. Ordinarily, government officials know that their actions will eventually have to withstand judicial review through an adversarial process. FISA, by contrast, creates an entirely one-sided and closed-door process, in which government actions are virtually never subjected to public scrutiny. In most instances, the target is never informed that he was searched or tapped at all. Where the government seeks to use the information in a particular case, it must notify the individual that he was subjected to a FISA search, but the law makes it impossible to test the legality of the search effectively because the defendant is not given access to the application for the search.

The FISA court has reportedly never turned down an application for electronic surveillance. The reason the appeals court was never convened before now was that only the government can appeal, and the government had never before lost. And Monday’s decision means that it is likely to be another quarter-century at least before the government loses a FISA case again.

The problem is that when officials know that their conduct cannot be effectively tested, they will be tempted to cut corners and to abuse their powers. The lower court’s decision had noted that the FBI had misrepresented facts to the court on at least 75 occasions. The appellate court relegated that fact to a footnote.

There is undoubtedly a role for secrecy in protecting the nation from terrorism. But, as we learned in the Watergate era, secrecy is all too often invoked not to protect national security from attack, but to shield government officials from embarrassing disclosures.

DAVID COLE, a professor at Georgetown University Law Center, is co-author with James Dempsey of "Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security." This column originally appeared in Newsday.

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