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CounterPunch
November
22, 2002
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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