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CounterPunch
December
4, 2002
FISA's Secret
Court:
An End Run Around the 4th Amendment
by ANITA RAMASASTRY
Recently the Foreign Intelligence Surveillance
Act (FISA) Court of Review issued an opinion -- the first in
its history. The opinion made it much easier for criminal law
enforcement to obtain evidence in cases in which a suspect is
thought to be a spy, or to be involved in terrorism, without
having to establish traditional "probable cause" before
a judge.
In our current climate of rational fears
of terrorism, that might sound like a very good thing -- at least
on first glance. But in fact, the implications for Fourth Amendment
rights, and privacy rights in general, are disturbing. At base,
this decision says that under certain circumstances, the Fourth
Amendment's bedrock "probable cause" can be watered
down, even when the evidence will be used to prosecute someone
in criminal court.
Given that fact, the Court of Review
should have refrained from adopting it, for it invites abuse.
In particular, it allows the FBI to work in tandem with local
criminal authorities while together ignoring the Fourth Amendment.
Granted, the FISA Review Court was, at
least, careful to limit the application of its decision. It made
clear that the government can only break down barriers between
the FBI and local criminal authorities with respect to crimes
that are related to foreign intelligence -- not ordinary, garden-variety
crimes. As the Court of Review noted, "the FISA process
cannot be used as a device to investigate wholly unrelated ordinary
crimes."
But what about loosely related ordinary
crimes? Will law enforcement be able to bypass the Fourth Amendment
when it comes to them, too?
The decision will allow the Department
of Justice to do away with the ordinary requirements of the Fourth
Amendment in order to eavesdrop on our phone calls, read our
e-mails or conduct searches of our homes without notifying us
that it ever conducted the surveillance. How? By redirecting
their investigations through the FISA Court rather than through
a criminal court.
Why should there be a distinction between
the gathering of foreign intelligence and criminal evidence?
Because of the purposes for which they are used.
Intelligence data is used to help the
government engage in effective counter-intelligence efforts.
Criminal evidence is used to prosecute individual perpetrators
and to potentially put them in jail.
When a citizen may be deprived of his
or her liberty, the Fourth Amendment and the U.S. Constitution
guarantee strong safeguards against government intrusion.
The FISA Court
and the FISA Court of Review
The Foreign Intelligence Surveillance
Act (FISA) Court currently considers government warrant requests
in cases of alleging spying or terrorist activities. Last May,
for the first time, the seven members FISA Court made public
a decision rejecting the government's bid for expanded surveillance
powers.
The FISA Court noted, in particular,
that the Department of Justice had committed a significant number
of mistakes and errors with respect to sharing intelligence information
with law enforcement -- without observing required safeguards.
The FISA Court also rejected new procedures
proposed by Attorney General Ashcroft designed to remove procedural
walls between the FBI and criminal law enforcement. (For more
details about the court, see my previous column regarding the
Court, and another prior column relating to the FISA Court's
now-overruled decision on this issue.)
The FISA Court of Review is the FISA
Court's court of appeals -- with the power to overrule its decisions.
It is made up of three semi-retired federal appellate judges.
As noted above, this is its first time in action.
When it considers appeals, the Court
of Review is only required to hear argument from the executive
branch -- not from the investigation's target. As a result, its
proceedings are inherently one-sided.
In this case, however, the Court of Review
permitted several prominent civil liberties groups -- including
the American Civil Liberties Union and the Center for Democracy
& Technology -- to file amicus ("friend of the court")
briefs arguing against the government's interpretation of the
laws.
The Significant
Post 9/11 Change In Our Wiretap Laws
To see what was at stake, it is important
first to understand what it takes to get a wiretap in different
scenarios.
Most people are familiar with the "probable
cause" standard for ordinary wiretaps; it requires the government
to show probable cause to believe that an individual is committing,
has committed, or is about to commit, a crime.
As the amicus briefs noted, this standard
(embodied in the federal wiretap statute referred to as Title
III) has traditionally been applied even to crimes relating to
national security and terrorism .
It is less well-known, however, that
a very different, and less demanding standard now applies when
the government believes that you are a spy or involved in foreign-related
terrorist activities, and seeks to gather relevant intelligence.
Thanks to the post-9/11 USA PATRIOT Act,
the FBI now can get a warrant to eavesdrop if it can make two
key showings. (The government also must certify that it cannot
obtain the relevant information through other means, but it is
up to the government alone to decide if such certification is
proper.)
The first showing is of "probable
cause," but, crucially, not the usual kind of probable cause.
It is probable cause to believe that "the target of the
electronic surveillance is a foreign power or an agent of a foreign
power."
Thus, for instance, probable cause to
think the target being wiretapped is a spy for Iraq would suffice.
The suspected spy need not be shown to be doing, or even planning,
anything illegal when the wiretap is granted.
Second, a "significant" purpose
of the investigation must be foreign intelligence. So the investigation
of the Iraq spy cannot be dedicated, for instance, to investigating
his series of suspected parking violations, or his use of prostitutes.
Previously, foreign intelligence had
to be a "primary purpose" of the investigation. Now
only a "significant purpose" is required. Another purpose
-- indeed, even the "primary purpose" -- now can be
to gather, not foreign intelligence, but evidence for a foreign-intelligence-related
criminal prosecution.
The FISA Court
of Review's Decision on Wiretaps and Interagency Cooperation
After reviewing FISA's legislative history,
as well as relevant precedents, the Court of Review concluded
that the boundary between foreign intelligence investigations,
and foreign-intelligence-related criminal law enforcement should
be more porous.
It was fine, the Court held, if the two
investigations merged in some instances, and were together governed
by the lax, two-prong wiretap standard outlined above. It was
also fine -- as a March 2002 Ashcroft memorandum had proposed
-- to relax procedural limits placed on how and when law enforcement
and the national security branch of the FBI can share information
and investigations.
According to the Ashcroft memo, criminal
prosecutors may now have access to "all information developed"
in FBI counterintelligence investigations. That includes, prominently,
FISA-acquired information that was not gathered in compliance
with the Fourth Amendment.
These prosecutors can also provide advice
on "all issues necessary to the ability of the Unites States
to investigate or protect against foreign attack. . . ."
In addition, they can advise FBI counterintelligence about the
initiation, operation, and continuation or expansion of FISA
searches and surveillance.
Finally, the Review Court also held,
separately, that the new, lowered standard for gaining a warrant
under the FISA procedures did not violate the Fourth Amendment's
protections against unreasonable "search and seizure,"
given the important government interest in national security.
In support of its holding, the Court
of Review relied on United States v. United States District Court
(Keith). There, the U.S. Supreme Court acknowledged that lesser
standards relating to search and seizure might be appropriate
for cases relating to national security. But it also made clear
that lower standards are permissible only with respect to the
collection of information related to counter-intelligence --
not when the government is "attempting to gather evidence
of specific criminal prosecutions."
Keith thus did not suggest that foreign
intelligence gathering rules could be employed if the primary
purpose was to prosecute criminal conduct; indeed, it suggested
the exact opposite.
Moreover, a pre-FISA case decided by
the U.S. Court of Appeals for the Fourth Circuit, United States
v. Truong, similarly and compellingly argues that national security
and criminal prosecution are very different things. National
security concerns recede, and individual privacy interests come
to the fore, the Truong court held, when "the government
is primarily attempting to form the basis of a criminal prosecution,"
not to gather intelligence.
The Court of Review's response to this
precedent was disappointing, to say the least. It also suggests
that it is hard to draw the line between intelligence-gathering
and criminal prosecution.
That may be correct, at least in some
cases, but it's still no reason to give up on the whole enterprise
-- especially when the alternative is eviscerating the Fourth
Amendment's basic guarantees. When it is hard to draw the line,
the court should err in favor of protecting individual rights
under the Fourth Amendment.
The Likely
Results of the FISA Review Court's Decision
The result is that now criminal law enforcement
can legally direct, or at least heavily influence, FBI investigations
related to foreign intelligence. Indeed, it will have an incentive
for doing so: Working with the FBI will mean it can circumvent
otherwise-applicable Fourth Amendment-based requirements.
Besides being disturbing in itself, this
development will likely mean electronic surveillance will increase:
After all, it just got easier for, and at the same time more
useful to, authorities.
Since it is easier to obtain a so-called
FISA warrant, law enforcement may choose to spy on a greater
number of individuals in order to gather data and information.
It may also rely on this process to search a broader class of
persons, in the name of counter-intelligence, because it has
a newfound ability to do so.
Targets of FISA investigations will not
receive notice of the clandestine searches and surveillance.
With a typical search warrant, the government provides you with
notice -- either before or after the search has been conducted.
If someone is prosecuted based on evidence
gathered via a FISA warrant, the government's application for
a warrant can be sealed. This happens when the Attorney General
certifies that it is in the interest of national security to
do so. Thus, criminal defendants will be unable to challenge
the basis under which the warrant was granted.
Probable cause of a crime will no longer
have to be shown in foreign-intelligence-related investigations
by criminal law enforcement. Evidence gathered under this watered
down standard will be admissible in court. Or perhaps the government
will simply use these investigations to gather evidence that
will never be offered in court, but will aid it nonetheless.
In effect, the Review Court created a
"Fourth-Amendment free zone" that not only the FBI,
but also other law enforcement agencies, can enjoy. As long as
the context is an investigation with a "significant"
(but not necessarily "primary") foreign intelligence
purpose, and the crimes themselves are also foreign intelligence-related,
the relaxed standard governs.
Even when so-called "walls"
were in place, information was leaked between the FBI and law
enforcement on numerous occasions, as the FISA Court noted earlier
this year. Now, when no such walls are required, the situation
can only get worse.
The U.S. Supreme Court can still review
the FISA Review Court's ruling. Since the Department of Justice
was the only "party" to the appeal, however, this seems
rather unlikely. One can only hope that the FISA Court itself
becomes increasingly vigilant when considering government requests
for warrants relating to foreign intelligence.
Anita Ramasastry
is an Assistant Professor of Law at the University of Washington
School of Law in Seattle and the Associate Director of the Shidler
Center for Law, Commerce & Technology. She is also a columnist
for Writ.Findlaw,
where this essay originally appeared.
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