Secret Court Goes on Extra Duty
Thursday, October 11, 2001
By Kelley Beaucar Vlahos
WASHINGTON — Every two weeks, in a secure, soundproof room at an undisclosed location in Washington, D.C., seven judges meet to decide the fate of dozens of federal wiretap and search warrant requests.
The targets of these warrants may not even know what's happening to them, much less be able to defend themselves. The feds don't even have to show probable cause. Everything is classified.
Now, this court is going to get a whole lot busier.
Under anti-terror legislation now pending before Congress, the FISA court, named for the Foreign Intelligence Surveillance Act that authorized it, would expand its jurisdiction from issues of national security — its sole scope now — to criminal investigations.
And that has some civil libertarians concerned. A broadened FISA would open the door for law enforcement to conduct secret searches and spy on Americans without the scrutiny of an open court. They wonder whether the debate over the proposal has been thorough enough.
"The seriousness of the issue demands that whatever is done be effective and focused without unnecessarily infringing civil liberties," said Jim Dempsey, deputy director for the Center of Democracy and Technology, whose executive director testified before Congress last week on the issue.
"Unfortunately, there has been little time for deliberation," he added.
Expanding the Search Limits
In normal criminal investigations, requests for wiretaps and search warrants are approved by a judge only after probable cause has been shown that a criminal act may have been committed or is being planned, and only after the target of the surveillance is notified.
But the FISA court is different. Law enforcement needs only to identify the target of a warrant as being a foreign power or its agent, U.S. citizen or not. The searches the court approves are of the "black bag" type, meaning the target doesn’t have to be home or even aware that the search is being conducted.
All documents pertaining to the cases brought before the court are classified, and defendants are not able to challenge the evidence presented against them.
Since its debut in 1978, the FISA court has denied only one of the roughly 10,000 warrant applications sought by the feds. The court was already getting busy before Sept. 11. Yearly requests for warrants doubled from 509 in 1993 to more than 1,000 in 2000.
The number of FISA warrants issued would explode under legislation proposed by Attorney General John Ashcroft. He wants the new rules to allow speedier arrests of suspected terrorists. The same fast-track warrants would more than likely be tougher to get in a criminal court, Ashcroft says, costing authorities valuable time in their investigations.
But legal experts are dubious about expanding FISA's scope.
"The [legislation] would allow government to use FISA for other than foreign intelligence gathering," said Jonathan Turley, a law professor at George Washington University, who in the 1980's brought cases before the FISA court on behalf of the National Security Agency.
"Under FISA, police do not have to establish a probable cause that a crime has been committed — in terms of the legal standard, FISA operates under a lowered standard. There are obviously concerns," he said.
Measures of Restraint
U.S. District Court Judge Royce Lamberth, chief of the seven-member FISA court, would not agree to be interviewed, but has bristled at accusations that the court rubber-stamps federal warrants. He challenged an American Bar Association audience in 1997 to come up with a better system.
And Lamberth has often been critical of the government from his bench. He is said to have censured an FBI lawyer in March for one FISA warrant request, according to The Washington Post, a censure that set off a department-wide investigation into the way the FBI was requesting the warrants.
Legislation expanding the FISA is currently stalled in the House and Senate. The bill's critics in the House want a sunset provision that would rescind the broadened powers in two-years time. The critics say they approve of untying Ashcroft's hands to stop terrorism, but worry about the long-range implications for Americans' rights.
An expanded FISA "should be used as a means to allow necessary prosecution to get through with due speed," said constitutional law expert Mark Fitzgibbons. "The sunset provision should not be used, however, as a short-term means to violate any due process guarantees or civil liberties."