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Monday, October 01, 2001 - 12:00 a.m. Pacific Government seeks to extend reach of secretive court used on spies, terror By Edmund Sanders Los Angeles Times WASHINGTON — Meeting in a windowless, bug-proof chamber deep inside the Justice Department, a secretive U.S. court wields extraordinary power to approve government requests to listen in on citizens' phone calls or to break into their homes to seize evidence. The court's seven judges just can't seem to say no. Since it was established in 1978, the court has approved thousands of government wiretap and warrant requests — and denied only one. And it's all done in proceedings so classified that even those Americans targeted for surveillance have no right to know about it, much less challenge it. Now, after the Sept. 11 terrorist attacks, the Bush administration is asking Congress to extend the reach of this court, whose specialty is overseeing government surveillance of spies, terrorists and others who serve as agents of foreign powers. But the proposal threatens to upset the delicate post-Watergate balance between protecting national security and spying on Americans. The court was created by the 1978 Foreign Intelligence Surveillance Act in response to the Nixon administration's practice of using its intelligence-gathering powers to spy on political enemies. Congress devised FISA, as the law is known, to distinguish between the government's need to gather intelligence about foreign powers and its efforts to battle crime at home. In particular, FISA established a special federal court where the government could obtain permission to spy on terrorists, espionage agents and others suspected of working for foreign powers. The government used it to catch CIA spy Aldrich Ames and investigate the 1993 World Trade Center bombing. The Bush administration says the need for stronger covert surveillance was tragically highlighted by the attacks on New York and near Washington. "Law enforcement needs a strengthened and streamlined ability for our intelligence-gathering abilities to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations," Attorney General John Ashcroft told Congress last week. One of the most controversial proposals in Ashcroft's package of anti-terrorism legislation would allow the government to use the court for other types of investigations, including criminal cases that are not chiefly related to gathering foreign intelligence. But would such a revision mean the pursuit of cases that do not affect national security, thereby dodging constitutional protections ordinarily enjoyed by individuals against surveillance? "It's a slippery slope," said Morton Halperin, a former State Department policy adviser who helped write FISA while working as a lobbyist at the American Civil Liberties Union. Because FISA wiretaps and warrants must clear a lower legal hurdle than criminal ones, Halperin worries the FBI might use the law as an "end run" around the Fourth Amendment, which restricts surveillance of U.S. citizens in criminal investigations. The low-profile court, whose judges are selected by the chief justice of the Supreme Court, has probably been working overtime amid the massive investigation into the Sept. 11 attacks. Last year, the court granted more than 1,000 wiretaps and search warrants, double the number of a decade ago, according to the Center for Democracy and Technology, citing Justice Department figures. Today, FISA warrants are nearly as common as wiretaps issued for all criminal inquiries combined, including drugs, gambling and organized crime. On the one occasion when the court turned down a government warrant request, it was because the request fell outside the court's jurisdiction, said David Sobel, attorney for the Electronic Information Privacy Information Center. Critics say the recent surge in FISA warrants suggests they are being used for purposes beyond intelligence gathering. "FISA is designed to deal with espionage and terrorism, but there are always concerns that it is being used for other crimes, such as drug conspiracies," said Jonathan Turley, a law professor at George Washington University who observed FISA proceedings in the 1980s while working for the National Security Agency. But proving misuse is virtually impossible, Turley said, because the proceedings are never disclosed. A FISA request begins at an intelligence or national-security agency, but the FBI is responsible for implementing the program. The Justice Department must sign off on every application, which can run as long as 40 to 50 pages. Although it's called a court, the process is less like a trial and more like an administrative hearing. There is no court reporter, and few written records are kept. The only witnesses are government employees; there is no adversarial process. Unlike wiretaps issued under criminal law, FISA applications do not require a showing that a crime has probably occurred. Instead, the government must demonstrate only that the targeted individual is likely to be an agent of a foreign government or power. FISA may now be used only when foreign intelligence gathering is "the" purpose of the investigation. The Justice Department wants to change it so that intelligence gathering may be only "a" purpose or "a significant" purpose. Legal experts say that would open the door to FISA warrants in a variety of criminal investigations, as long as intelligence gathering was one component. |
