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Old 12-21-2005, 05:44 PM   #1
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What is FISA and was is this Administration at Odds with the FISA COURT?

WHY THE FOREIGN INTELLIGENCE SURVEILLANCE ACT COURT WAS RIGHT TO REBUKE THE JUSTICE DEPARTMENT
By ANITA RAMASASTRY
----
Wednesday, Sep. 04, 2002

The Bush administration recently received a harsh legal blow in the war against terrorism. It came from an unlikely place: a clandestine federal court responsible for reviewing government requests to spy on terrorism suspects.

This court, known as the Foreign Intelligence Surveillance Act (FISA) Court, refused to approve of certain procedures proposed by Attorney General Ashcroft. In an unprecedented move, it also publicly released its ruling this August. The dispute, however, had been going on since May, when the Court announced its dissatisfaction with the procedures and its belief that they were contrary to existing federal law.

The procedures would have allowed criminal prosecutors routine access to information obtained through counterintelligence searches and wiretaps - without a probable cause showing that a crime had been or was about to be committed. ("Counterintelligence" is defined within the FISA as information gathered, and activities conducted, to protect against espionage; other intelligence activities; sabotage; or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.)

When the FISA court rejected the procedures, it ruled that they would give prosecutors too much control over counterintelligence investigations, and would allow the government potentially to misuse intelligence information for criminal cases.

The FISA court was absolutely correct in its ruling - and in the midst of a dramatic expansion of executive power, it is laudable that the judiciary has in this instance done the right thing. The traditional separations between counterintelligence and criminal law enforcement should be preserved unless Congress gives the Justice Department a clear mandate to relax them - which it has not yet done.

The case is currently on appeal to the FISA Court of Review, a special three-judge panel that oversees the surveillance court. This appeal constitutes the first formal challenge to the FISA court's decisionmaking in its 23-year history. The Court of Review should affirm the ruling.

In the United States, counterintelligence and traditional criminal investigations have been treated as separate and distinct processes since the late 1970s. Monitoring spies is different from trying to catch a thief. The Justice Department's proposed procedures seem to put an end to this important distinction.

As the FISA Court noted in its recent opinion, "the government makes no secret of this policy, asserting its interpretation of the Act's new amendments which "allows FISA to be used primarily for a law enforcement purpose."

In a March 2002 memorandum to the Federal Bureau of Investigation, Attorney General Ashcroft outlined the new procedures relating to how information gathered through the FBI counterintelligence process could be shared with criminal prosecutors.

The proposed 2002 procedures authorize extensive consultations between the FBI and criminal prosecutors to coordinate efforts to investigate or protect against "actual or potential attack, sabotage, international terrorism and clandestine intelligence activities by foreign powers and their agents . . . ."

These procedures included three major provisions aimed at giving criminal prosecutors more access to counterintelligence information. First, a "disseminating information" provision would give criminal prosecutors access to "all information developed" in FBI counterintelligence investigations, including FISA-acquired information.

Second, provisions relating to "providing advice" would allow prosecutors to consult and provide advice to intelligence officials about the strategy and goals of their investigations.

A third provision would allow criminal prosecutors to advise FBI intelligence officials about the initiation, operation, continuation, or expansion of FISA searches and surveillance. Put more simply, this would allow criminal prosecutors to direct counterintelligence investigations. Rather than having to obtain a traditional warrant from a court, criminal prosecutors might be able to obtain the same information through the FISA court procedure.

The end result of these procedures: Prosecutors, in essence, would be able to direct counterintelligence operations.

The Problem with the Procedures

The government need not establish traditional probable cause required in criminal investigations before applying for a special counterintelligence "warrant." That is arguably as it should be: The dangerousness of the suspected crimes may make their investigation expedient.

In contrast, to investigate ordinary crimes, the government must still avoid unreasonable searches and seizures. That is required by the Fourth Amendment.

The proposed procedures, however, would allow the FBI to do an end run around the Fourth Amendment. If they went into effect, the government could share information gathered under the looser standards of the FISA court with law enforcement and prosecutors who go after ordinary crimes on a more frequent basis

That would mean that information gathered under rules proper for terrorists could be used to convict the hapless shoplifter who happens to use an embassy phone to discuss what she has stolen.

Keeping Counterintelligence and Criminal Investigations Separate

As I noted in a previous column, the FISA court is a secret entity - it operates in complete secrecy, away from the public eye. Indeed, prior to September 11, many citizens were unaware of its existence.

The court is currently comprised of 11 judges appointed by the Chief Justice of the U.S. Supreme Court. Until late August, the court had never published its rulings.

The FISA - enacted in 1978, in the wake of the domestic spying scandals of the Nixon presidency, Congress - created separate processes for traditional criminal investigations and foreign intelligence gathering.

Why the distinction? Congress felt that criminal investigations are very distinct from investigations of foreign powers meant to protect our national security. Hence, standards governing each type of investigation might differ.

FISA's Longstanding Special Procedures For Counterintelligence-Gathering

The FISA statute therefore created a secret process and secret court to review requests to wiretap phones, and conduct searches, aimed at spies, terrorists and enemies of the United States. The process and court were meant only for counterintelligence - not for ordinary criminal investigations.

The court issues FISA "warrants" - but these so-called "warrants," unlike traditional warrants in criminal cases, did not require probable cause of specific criminal activity. Rather, they are simply special court orders meant to be used for counterintelligence purposes.

The FISA court approves around 1,000 such warrants per year - and only rarely denies a warrant request. Persons who are the subjects of FISA warrants never know that they are targeted. An FBI agent might sneak into a suspect's house, have a look around and leave again, without leaving notice that he or she had been there.

What happens if the search happens to reveal evidence of ordinary crime that leads to a prosecution? The subject may be out of luck. The warrant and the grounds why it was granted can remain a secret - and thus will be impervious to challenge - if the Attorney General swears that the information must remain secret on grounds of national security.

How the USA Patriot Act Expanded the Basis for FISA Warrants

Originally, prior to the USA Patriot Act - enacted after September 11 - law enforcement could only seek a FISA warrant if gathering intelligence was the primary purpose of the investigation. But the USA Patriot Act allowed law enforcement to seek a FISA warrant if gathering intelligence was only a significant purpose, not necessarily the primary purpose of the investigation.

While this expansion can be debated, at least Congress authorized it. But without Congressional approval, Ashcroft acted to expand the uses of FISA warrants even further, allowing the evidence gathered as a result of the FISA warrants to routinely end up in the hands of criminal law enforcement - and even allowing criminal law enforcement to play a role in directing evidence-gathering.

Today, the FISA Court routinely approves the creation of information screening "walls" between FBI intelligence and criminal prosecutors in cases where there are overlapping criminal and intelligence components. The Justice Department procedures seem designed to tear these walls down.

On May 17, the FISA Court ruled that the proposal was not permissible under current federal law. The ruling was signed by the court's previous chief, U.S. District Judge Royce C. Lamberth. However, it was released by the new presiding judge, U.S. District Judge Colleen Kollar-Kotelly.

The ruling held that the proposed procedures would clash with FISA itself - for Congress intended, with FISA, to separate evidence gathering for counterintelligence from that for ordinary criminal investigations. It also pointed to evidence that, even without the procedures, both the Clinton and Bush Administrations' Departments of Justice had already ignored the divide between counterintelligence and policing. The evidence cited by the Court is troublesome. :

According to evidence before the Court, the ruling said, DOJ had misused the FISA process and misled the court at least a dozen times. Justice Department and FBI officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

The Court also pointed to evidence that authorities had improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions. (The Department discovered the misrepresentations and reported them to the FISA court beginning in 2000.)

Furthermore, the Court noted, in an "alarming number of instances" during the Clinton administration, the FBI may have acted improperly. In a number of cases, the FBI and the Justice Department made "erroneous statements" in eavesdropping applications about "the separation of the overlapping intelligence and criminal investigators and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys."

Indeed, the Court said, there was a "troubling number of inaccurate FBI affidavits in so many FISA applications" and violations of court orders. The inaccuracies and violations, "in virtually every instance," involved "information sharing and unauthorized disseminations to criminal investigators and prosecutors."

"How these misrepresentations occurred remains unexplained to the court," the opinion noted, somewhat ominously.

In striking down parts of the new procedures, , the Court also ruled that law enforcement officials cannot give advice related to the surveillance to investigators carrying out the searches or wiretapping. (A March Ashcroft memo had said consultation or sharing of information may include the exchange of advice and recommendations on how to carry out the surveillance and searches.)

What the Administration Will Argue Before the FISA Court of Review

Even if the FISA Act itself intended to separate counterintelligence from ordinary criminal investigation, the USA Patriot Act, the Administration will suggest, blurred the divide. In truth, however, FISA was clear about ensuring the separation and the USA Patriot Act did not expressly or implicitly repeal that divide.

A clear statement from Congress is necessary, especially if practices so destructive to Fourth Amendment rights are to be authorized. To allow for information gathered in the name of national security to be routinely funneled to prosecutors is precisely what the FISA was meant to guard against. Congress has not let down its guard yet - and fortunately, the FISA Court has not either.

Why These FISA Warrant Issues Do Not Relate to the Moussaoui Case

Until the current disagreement, the FISA court had approved all but one warrant application sought by the government since the court's inception. Nevertheless, FBI and Justice Department officials claim that previous disputes with the FISA Court had made the government cautious about seeking FISA warrants.

According to the government, the year before Zacarias Moussaoui's arrest, FISA court judges had complained that they were being misled by the FBI as it requested surveillance of Hamas, the militant Palestinian group. As a result of the complaints, the Justice Department commenced an internal investigation of the conduct of senior FBI and Justice Department officials.

One of the aftereffects of the scandal, the FBI says, was its reluctance to seek a FISA warrant to search the computer and other possessions of Moussaoui - now the alleged "twentieth hijacker" and an admitted Al Qaeda member. Moussaoui was arrested in Minnesota in August 2000, but not fully investigated.

It is important to stress, however, that the two issues - of whether the new procedures should be approved, and why the FBI did not fully investigate Moussaoui - are separate. The Justice Department and the FBI need to fix existing problems with their warrant process, not invent a new one.

Unless they do so, they will again fall into the inevitable cycle of angering the FISA court by misrepresenting facts to it, and then becoming wary of approaching the Court to get warrants in the first place. Before seeking to further expand their FISA authority, DOJ and the FBI need to put their house in order - ensuring they are telling the Court the truth so they can be confident enough to approach it when they need a warrant.

Again, the issue of the new procedures is a separate one - and the FISA Court's ruling on it was right. Congress may someday choose to amend existing law to allow ongoing collaboration between counterintelligence and criminal law enforcement. But despite all the legislation enacted after September 11, it has not yet done so. Whether to do so is ultimately Congress's choice, not John Ashcroft's, as the FISA Court rightly held.

http://writ.news.findlaw.com/ramasastry/20020904.html
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Old 12-21-2005, 05:45 PM   #2
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WHEN WILL THE WAR ON TERRORISM FORCE CONSERVATIVES TO CHOOSE STATES' RIGHTS OVER IMPROVED NATIONAL SECURITY?
Not Yet, As the Recent FISA Appeals Decision Shows
By EDWARD LAZARUS
elazarus@findlaw.com
----
Thursday, Nov. 28, 2002

At first blush, there may not seem to be much of a link between the commitment of conservative judges to the concept of states' rights, and policy initiatives authorizing new national security measures at the potential expense of civil liberties. But I believe there is: One principle will ultimately have to yield to the other. The only question is, which will yield?

Suppose the conservatives prove true to the states' principles they espouse. Those very principles may well provide a limit to the trade-offs of national security in exchange for individual liberty that the nation continues to make in its fight against terror. And vice-versa: If federal power to fight terror grows, the principles undergirding the states' rights movement will inevitably suffer.

The Values Behind the Court's Emphasis on States' Rights

Many critics of the Supreme Court's recent federalism jurisprudence don't believe that the allegiance of the conservative justices to the concept of states' rights is based on principle. In their view, conservatives simply believe that, overall, states will make more politically conservative policy choices than the federal government.

And, thus, in the view of these critics, empowering states at the expense of the federal government is just a way for these justices to advance conservative policy results. And cleverly, it allows conservative to accomplish this goal through the seemingly neutral mechanism of allocating power between competing sovereigns, thereby cloaking the conservatives' true aims.

But let's put aside such cynicism for the moment and take the conservative Justices' states' rights philosophy at face value. At bottom, what is it that motivates their move to rein in federal power and reserve to states a greater sphere of exclusive jurisdiction?

By contrast, these conservatives see large federal bureaucracies as nameless, faceless behemoths. They fear such bureaucracies will have little connection to the people whose lives they govern and that, therefore, there will be little constraint on their abuse of power.

These are reasonable premises, and they enjoy a long and honorable history. They were shared, for instance, by some members of the founding generation - who looked to the abuses of British colonial rule, and developed a strong distrust of a remote centralized sovereign authority. (As regular readers of this column will know, I disagree with this view, believing it inapposite in the modern era, but it does, at least, have a lengthy pedigree, and it grew out of principle, whether or not it is endorsed today as a matter of principle or convenience.)

If the Conservative Justices Are Sincere, They Should Reign in Federal Power Here, Too

Column continues below ↓ And that idea - the idea of principled, longstanding distrust of centralized federal power on the part of conservatives - brings me to the link between federalism and the current politics of terror. How one assesses most of the new initiatives for fighting terrorism boils down to a question of trust.

It's relatively easy to see how each new proposal might help root out terrorist threats. The ideas aren't irrational. But the real question is, when you look at these initiatives either singly or collectively, at what point do they trigger a reasonable fear that, however well intentioned, they have opened the door to massive abuse by a central governmental authority that lacks any real accountability?

More specifically, the question for the prophets of federalism is this: Given their philosophical antipathy to centralized power, at what point do they start sounding the alarm, and announcing that the current expansion and consolidation of federal power has gone too far?

When Will Conservatives Start to Balk at Increasing Power Centralization?

With last week's decision authorizing more government wiretaps and searches of alleged foreign agents, we can see that the point hasn't been reached yet.

That decision, as readers may be aware, was rendered by a special appeals court of conservative judges handpicked by Chief Justice William Rehnquist (Mr. Federalism himself). The opinion's effect was to uphold the provision of the post-9/11 "Patriot Act" that lets federal prosecutors use information gathered by counter-espionage or counter-terrorism agents under special warrants issued by a secret court - the "FISA court"

On the surface, this information sharing between prosecutors and law enforcement might seem innocuous. But it's not.

The Problem with the Recent FISA Court of Review Decision

To begin, the very concept of the FISA court search warrants - which have been issued since the Court was founded over thirty years ago - is troubling.

Ordinarily, the Constitution requires that the government establish "probable cause" that an individual is engaged in criminal activity before it can obtain a search warrant from an ordinary court. The FISA court, though, issues warrants against alleged foreign agents on less than probable cause - on the theory that stopping espionage and terrorism sometimes calls for a bending of the usual rules.

Some constitutional scholars think that the FISA court is unconstitutional for precisely this reason. But before the Court of Review's ruling, these critics could at least take comfort from the fact that the information gathered through FISA warrants was used exclusively to stop spying or terrorism - and wasn't handed over to prosecutors to build criminal cases.

In other words, the relaxing of the Constitution's protections of personal privacy in the FISA Court context was, prior to the current ruling, strictly limited to the elimination of threats rather than the prosecution of individuals. Thus, the FISA court, at that time, could not become an easy end run around the probable cause requirement for warrants contained in the Fourth Amendment.

Not anymore. Some months ago, the FISA court itself had ruled unanimously (7-0) that the USA PATRIOT Act's information sharing provision was unconstitutional. In its opinion, it also, disturbingly, revealed that it had discovered 75 instances where the FBI had tried to abuse the FISA warrant process even with the then-existing safeguards. As the court noted, the FBI was sharing information from FISA warrants with prosecutors long before it was authorized to do so.

Last week, though, Rehnquist's specially appointed three-judge appeals court - after a secret hearing at which only the Justice Department was allowed to present argument - reversed the FISA Court. Far from rejecting the USA PATRIOT Act's and Ashcroft memo's information sharing provisions, it gave them its stamp of approval. (See Anita Ramasastry's recent column for this site for more detail on the decision itself.)

Trusting Government Too Much, When Civil Liberties Are At Stake?

On the other hand, the potential cost to civil liberties is considerable. FISA warrants are a powerful tool to hand over to prosecutors, who are under tremendous pressure to root out terrorists. The Court of Review let prosecutors use relatively scant, and always secret, evidence to wiretap and conduct searches against anyone falling into the rather amorphous category of "foreign agent." By doing so, the Court of Review's opinion raised substantially the risk that innocent people will be subjected to highly intrusive government surveillance.

The FISA decision, moreover, does not come in isolation. Rather, it comes from the same Administration that has brought us a host of other civil-liberties-endangering programs. There is the use of secret military tribunals for those the government accuses of terrorism. There is the mass closure of immigration hearings, and the secret detention and quarantining of suspected terrorists (even those who are U.S. citizens). There is the "TIPS" program encouraging citizens to spy on one another and report to the government. And recently, we have learned of the "Total Information Awareness" program - by which the government would create information files on pretty much everyone, which potentially would include financial and health records, internet browsing habits, even emails. That means you, me, and everyone we know - not people suspected of any connection to terrorism, or even people who have any connection to people who are.

A political check on these initiatives is relatively unlikely. People are scared - understandably - and the votes of elected officials will reflect that fear. Often, civil liberties don't feel as valuable as national security to voters: After all, it takes a while to be directly affected when liberties are taken away, while having too little security encourages constant fear. Understandably, people want to believe the government is doing all it can, to the greatest extent it can. Rights may simply seem like an impediment.

That means the judiciary will have to play the role of finding a limit to the trade-offs between liberty and security - that is, the role of deciding how much police power we are going to entrust in the federal government. And ironically, it will most likely be the states' rights judges who dominate both the Supreme Court and most federal appellate courts who will have to draw the line.

And so the test is upon them. Is the federalists' fear of centralized government genuine? Or is it, as the critics say, merely a smokescreen for advancing a conservative political agenda? Let them stand up and be counted.


--------------------------------------------------------------------------------

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

http://writ.news.findlaw.com/scripts.../20021128.html
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Old 12-21-2005, 05:46 PM   #3
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WHY THE FOREIGN INTELLIGENCE SURVEILLANCE ACT COURT WAS RIGHT TO REBUKE THE JUSTICE DEPARTMENT
By ANITA RAMASASTRY
----
Wednesday, Sep. 04, 2002

The Bush administration recently received a harsh legal blow in the war against terrorism. It came from an unlikely place: a clandestine federal court responsible for reviewing government requests to spy on terrorism suspects.

This court, known as the Foreign Intelligence Surveillance Act (FISA) Court, refused to approve of certain procedures proposed by Attorney General Ashcroft. In an unprecedented move, it also publicly released its ruling this August. The dispute, however, had been going on since May, when the Court announced its dissatisfaction with the procedures and its belief that they were contrary to existing federal law.

The procedures would have allowed criminal prosecutors routine access to information obtained through counterintelligence searches and wiretaps - without a probable cause showing that a crime had been or was about to be committed. ("Counterintelligence" is defined within the FISA as information gathered, and activities conducted, to protect against espionage; other intelligence activities; sabotage; or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.)

When the FISA court rejected the procedures, it ruled that they would give prosecutors too much control over counterintelligence investigations, and would allow the government potentially to misuse intelligence information for criminal cases.

The FISA court was absolutely correct in its ruling - and in the midst of a dramatic expansion of executive power, it is laudable that the judiciary has in this instance done the right thing. The traditional separations between counterintelligence and criminal law enforcement should be preserved unless Congress gives the Justice Department a clear mandate to relax them - which it has not yet done.

The case is currently on appeal to the FISA Court of Review, a special three-judge panel that oversees the surveillance court. This appeal constitutes the first formal challenge to the FISA court's decisionmaking in its 23-year history. The Court of Review should affirm the ruling.

In the United States, counterintelligence and traditional criminal investigations have been treated as separate and distinct processes since the late 1970s. Monitoring spies is different from trying to catch a thief. The Justice Department's proposed procedures seem to put an end to this important distinction.

As the FISA Court noted in its recent opinion, "the government makes no secret of this policy, asserting its interpretation of the Act's new amendments which "allows FISA to be used primarily for a law enforcement purpose."

In a March 2002 memorandum to the Federal Bureau of Investigation, Attorney General Ashcroft outlined the new procedures relating to how information gathered through the FBI counterintelligence process could be shared with criminal prosecutors.

Column continues below ↓ The proposed 2002 procedures authorize extensive consultations between the FBI and criminal prosecutors to coordinate efforts to investigate or protect against "actual or potential attack, sabotage, international terrorism and clandestine intelligence activities by foreign powers and their agents . . . ."

These procedures included three major provisions aimed at giving criminal prosecutors more access to counterintelligence information. First, a "disseminating information" provision would give criminal prosecutors access to "all information developed" in FBI counterintelligence investigations, including FISA-acquired information.

Second, provisions relating to "providing advice" would allow prosecutors to consult and provide advice to intelligence officials about the strategy and goals of their investigations.

A third provision would allow criminal prosecutors to advise FBI intelligence officials about the initiation, operation, continuation, or expansion of FISA searches and surveillance. Put more simply, this would allow criminal prosecutors to direct counterintelligence investigations. Rather than having to obtain a traditional warrant from a court, criminal prosecutors might be able to obtain the same information through the FISA court procedure.

The end result of these procedures: Prosecutors, in essence, would be able to direct counterintelligence operations.

The Problem with the Procedures

The government need not establish traditional probable cause required in criminal investigations before applying for a special counterintelligence "warrant." That is arguably as it should be: The dangerousness of the suspected crimes may make their investigation expedient.

In contrast, to investigate ordinary crimes, the government must still avoid unreasonable searches and seizures. That is required by the Fourth Amendment.

The proposed procedures, however, would allow the FBI to do an end run around the Fourth Amendment. If they went into effect, the government could share information gathered under the looser standards of the FISA court with law enforcement and prosecutors who go after ordinary crimes on a more frequent basis

That would mean that information gathered under rules proper for terrorists could be used to convict the hapless shoplifter who happens to use an embassy phone to discuss what she has stolen.

Keeping Counterintelligence and Criminal Investigations Separate

As I noted in a previous column, the FISA court is a secret entity - it operates in complete secrecy, away from the public eye. Indeed, prior to September 11, many citizens were unaware of its existence.

The court is currently comprised of 11 judges appointed by the Chief Justice of the U.S. Supreme Court. Until late August, the court had never published its rulings.

The FISA - enacted in 1978, in the wake of the domestic spying scandals of the Nixon presidency, Congress - created separate processes for traditional criminal investigations and foreign intelligence gathering.

Why the distinction? Congress felt that criminal investigations are very distinct from investigations of foreign powers meant to protect our national security. Hence, standards governing each type of investigation might differ.

FISA's Longstanding Special Procedures For Counterintelligence-Gathering

The FISA statute therefore created a secret process and secret court to review requests to wiretap phones, and conduct searches, aimed at spies, terrorists and enemies of the United States. The process and court were meant only for counterintelligence - not for ordinary criminal investigations.

The court issues FISA "warrants" - but these so-called "warrants," unlike traditional warrants in criminal cases, did not require probable cause of specific criminal activity. Rather, they are simply special court orders meant to be used for counterintelligence purposes.

The FISA court approves around 1,000 such warrants per year - and only rarely denies a warrant request. Persons who are the subjects of FISA warrants never know that they are targeted. An FBI agent might sneak into a suspect's house, have a look around and leave again, without leaving notice that he or she had been there.

What happens if the search happens to reveal evidence of ordinary crime that leads to a prosecution? The subject may be out of luck. The warrant and the grounds why it was granted can remain a secret - and thus will be impervious to challenge - if the Attorney General swears that the information must remain secret on grounds of national security.

How the USA Patriot Act Expanded the Basis for FISA Warrants

Originally, prior to the USA Patriot Act - enacted after September 11 - law enforcement could only seek a FISA warrant if gathering intelligence was the primary purpose of the investigation. But the USA Patriot Act allowed law enforcement to seek a FISA warrant if gathering intelligence was only a significant purpose, not necessarily the primary purpose of the investigation.

While this expansion can be debated, at least Congress authorized it. But without Congressional approval, Ashcroft acted to expand the uses of FISA warrants even further, allowing the evidence gathered as a result of the FISA warrants to routinely end up in the hands of criminal law enforcement - and even allowing criminal law enforcement to play a role in directing evidence-gathering.

Today, the FISA Court routinely approves the creation of information screening "walls" between FBI intelligence and criminal prosecutors in cases where there are overlapping criminal and intelligence components. The Justice Department procedures seem designed to tear these walls down.

On May 17, the FISA Court ruled that the proposal was not permissible under current federal law. The ruling was signed by the court's previous chief, U.S. District Judge Royce C. Lamberth. However, it was released by the new presiding judge, U.S. District Judge Colleen Kollar-Kotelly.

The ruling held that the proposed procedures would clash with FISA itself - for Congress intended, with FISA, to separate evidence gathering for counterintelligence from that for ordinary criminal investigations. It also pointed to evidence that, even without the procedures, both the Clinton and Bush Administrations' Departments of Justice had already ignored the divide between counterintelligence and policing. The evidence cited by the Court is troublesome. :

According to evidence before the Court, the ruling said, DOJ had misused the FISA process and misled the court at least a dozen times. Justice Department and FBI officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

The Court also pointed to evidence that authorities had improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions. (The Department discovered the misrepresentations and reported them to the FISA court beginning in 2000.)

Furthermore, the Court noted, in an "alarming number of instances" during the Clinton administration, the FBI may have acted improperly. In a number of cases, the FBI and the Justice Department made "erroneous statements" in eavesdropping applications about "the separation of the overlapping intelligence and criminal investigators and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys."

Indeed, the Court said, there was a "troubling number of inaccurate FBI affidavits in so many FISA applications" and violations of court orders. The inaccuracies and violations, "in virtually every instance," involved "information sharing and unauthorized disseminations to criminal investigators and prosecutors."

"How these misrepresentations occurred remains unexplained to the court," the opinion noted, somewhat ominously.

In striking down parts of the new procedures, , the Court also ruled that law enforcement officials cannot give advice related to the surveillance to investigators carrying out the searches or wiretapping. (A March Ashcroft memo had said consultation or sharing of information may include the exchange of advice and recommendations on how to carry out the surveillance and searches.)

What the Administration Will Argue Before the FISA Court of Review

Even if the FISA Act itself intended to separate counterintelligence from ordinary criminal investigation, the USA Patriot Act, the Administration will suggest, blurred the divide. In truth, however, FISA was clear about ensuring the separation and the USA Patriot Act did not expressly or implicitly repeal that divide.

A clear statement from Congress is necessary, especially if practices so destructive to Fourth Amendment rights are to be authorized. To allow for information gathered in the name of national security to be routinely funneled to prosecutors is precisely what the FISA was meant to guard against. Congress has not let down its guard yet - and fortunately, the FISA Court has not either.

Why These FISA Warrant Issues Do Not Relate to the Moussaoui Case

Until the current disagreement, the FISA court had approved all but one warrant application sought by the government since the court's inception. Nevertheless, FBI and Justice Department officials claim that previous disputes with the FISA Court had made the government cautious about seeking FISA warrants.

According to the government, the year before Zacarias Moussaoui's arrest, FISA court judges had complained that they were being misled by the FBI as it requested surveillance of Hamas, the militant Palestinian group. As a result of the complaints, the Justice Department commenced an internal investigation of the conduct of senior FBI and Justice Department officials.

One of the aftereffects of the scandal, the FBI says, was its reluctance to seek a FISA warrant to search the computer and other possessions of Moussaoui - now the alleged "twentieth hijacker" and an admitted Al Qaeda member. Moussaoui was arrested in Minnesota in August 2000, but not fully investigated.

It is important to stress, however, that the two issues - of whether the new procedures should be approved, and why the FBI did not fully investigate Moussaoui - are separate. The Justice Department and the FBI need to fix existing problems with their warrant process, not invent a new one.

Unless they do so, they will again fall into the inevitable cycle of angering the FISA court by misrepresenting facts to it, and then becoming wary of approaching the Court to get warrants in the first place. Before seeking to further expand their FISA authority, DOJ and the FBI need to put their house in order - ensuring they are telling the Court the truth so they can be confident enough to approach it when they need a warrant.

Again, the issue of the new procedures is a separate one - and the FISA Court's ruling on it was right. Congress may someday choose to amend existing law to allow ongoing collaboration between counterintelligence and criminal law enforcement. But despite all the legislation enacted after September 11, it has not yet done so. Whether to do so is ultimately Congress's choice, not John Ashcroft's, as the FISA Court rightly held.


--------------------------------------------------------------------------------

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.

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Old 12-21-2005, 05:47 PM   #4
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THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW CREATES A POTENTIAL END RUN AROUND TRADITIONAL FOURTH AMENDMENT PROTECTIONS FOR CERTAIN CRIMINAL LAW ENFORCEMENT WIRETAPS
By ANITA RAMASASTRY
----
Tuesday, Nov. 26, 2002

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." (Emphasis added)

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.

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

Column continues below ↓ 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

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

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 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.


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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.

http://writ.news.findlaw.com/scripts.../20021126.html
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Old 12-21-2005, 05:48 PM   #5
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Report: FISA judge resigns over Bush plan
WASHINGTON, Dec. 20 (UPI) -- A judge on a secret U.S. court that oversees domestic spying has resigned over President Bush's end run around the court, a report says.

The Washington Post said U.S. District Judge James Robertson is one of 11 members of the Foreign Intelligence Surveillance Court, called the FISA court.

Robertson sent a letter to Chief Justice John Roberts late Monday telling him about the resignation, but without giving a reason, the Post said.

Robertson privately expressed concern that the surveillance authorized by the president in 2001 "may have tainted the FISA court's work," the Post said.

A Clinton appointee, Robertson was appointed to the FISA court by the late Chief Justice William H. Rehnquist.

The surveillance monitored international calls from the United States without a warrant issued by a court.

Since media reports revealed the surveillance program, some politicians on both sides of the aisle have expressed doubts about its legality.

However, the president has said the program is legal, and he would continue to use it to prosecute the war on terror.

http://www.upi.com/NewsTrack/view.ph...0-112851-4428r
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Old 12-21-2005, 05:58 PM   #6
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sorry way too much to read now



but

Cheney came right out and said

that laws that were put in place in the 70s after Viet Nam and Watergate

limit the President


he said that is not good

and the President needed to take back his powers

(i am paraphrasing)

congress passed these laws because Nixon abused Pres. powers

these laws are necessary


Cheney and this Admin can not ignore them away
anymore than Reagan could ignore the Boland Amendment away

they believe they are above the law

they believe they have a wild card

a Joker they can play when they want to pick up all the chips
911, changed everything

FISA would leave a paper trail
Their actions would have to be justified.
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Old 12-21-2005, 06:04 PM   #7
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Here is a link to the FISA Court's Opinion Released in 2002. AS the Lawyers in the articles above point out....

THE FISA COURT has never made a public ruling up until this point.

In the report, you can read of the FISA courts concerns about wiretappings and the fact that the FBI had been lying to them before 9/11 to get wire taps.

NOT GOOD......

http://www.epic.org/privacy/terroris...CR_opinion.pdf
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Old 12-21-2005, 06:13 PM   #8
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Interesting...I'll try to post later when I have more time, but I had a long conversation with my dad on this topic last night. It seems there's something like 60 pages of law (I think) related to the FISA courts and none of it is clear cut, typically. It's not as simple as he broke the law or he didn't (from a realist perspective anyway), and it appears the White Hou se plans to argue that what they did was legal/necessary. I still need to read a little more about it, but if the Dems are really going to pursue the newly exposed wiretapping programs and encourage actual legal action at some point, I honestly don't know if they are choosing the right battle...

deep what you said is true, however I am beginning to feel convinced that the nature of our country is such that we need to have laws, and we need the president to break them at times. when he starts abusing them to punish political opponents, it will come out eventually, and that president will lose support, office, etc. This is just an odd perspective, I don't necessarily believe this, but it seems like for the sake of national defense we'll always have the CIA acting in ways that aren't quite "clean"...and that it should/will almost be tolerated until it's abused a la watergate. Then that person gets the boot, and we start all over again. Like we're always on the brink of police state but never quite there.

eta: I do believe that, if this was used against political opponents or something like that, it WILL come out and the president will pay dearly for it.
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Old 12-21-2005, 09:17 PM   #9
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I guess people would rather discuss the DRUDGE flash rather than legal analysis...lol
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Old 12-21-2005, 09:25 PM   #10
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hey dreadsox...I've heard people (on the tv) saying that this was justified because we are at war. even though we haven't declared it, I think most people would agree that we are indeed at war. I'm not really clear on what special powers the president has in this arena during war. During declared war, is there anything that gives him the right to spy on citizens without a warrant? if so, then I think there's legitimate need for a new law seeing as no one declares "war" anymore...

still working on reading the opinion
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Old 12-21-2005, 10:02 PM   #11
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The threat will persist far too long for these sort of rights to be suspended. They must be actively protected.
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Old 12-21-2005, 10:09 PM   #12
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Quote:
Originally posted by VertigoGal
hey dreadsox...I've heard people (on the tv) saying that this was justified because we are at war. even though we haven't declared it, I think most people would agree that we are indeed at war. I'm not really clear on what special powers the president has in this arena during war. During declared war, is there anything that gives him the right to spy on citizens without a warrant? if so, then I think there's legitimate need for a new law seeing as no one declares "war" anymore...

still working on reading the opinion
If you search the forum....you may find that I argued hard for the Congress to Officially declare war. I think as time has gone on, my reasons have become more solid.

I think to say this is political spin. There has never been an official declaration of war against Al-Qaeda.

There has been an authorization of the use of force in Iraq.

The activities that have transpired began long before Iraq.

I am not buying it.

There would have been NO REASON for the Patriot Act if we were at war and the President had the powers he claims to have. Why would you create a law that has restrictions on the powers if you had the power to do it anyway?
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Old 12-21-2005, 10:24 PM   #13
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Yeah I seem to remember you saying that a while ago. I still feel like I'm missing something. If we were in an officially declared war, would anything give the president the power to wiretap citizens without a warrent? Sorry, it's just that the more I read about FISA and the Patriot Act, the more I feel like they don't have much to do with the program he'd set up. Like you said, why create laws concerning powers when you already have powers that far surpass the ones you've just created. Why ease restrictions on warrants for terrorists (FISA propositions) if you feel that under the circumstances it is legal to intercept citizens with no warrant. It doesn't make sense.

And yet, I just have the feeling that this isn't something the Dems can really bring him down for, unless it turns out it was used on political opponents or something.
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Old 12-21-2005, 10:27 PM   #14
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I would add this to it as well....

FISA allows the President to conduct searches without a warrent if there is an immediate need. They have a time limit to retroactively get the warrent.

Also....FISA warrents are so secretive that even when someone is prosecuted using evidence captured through the wiretap, the court ruling has prohibited revealing the details of the warrent.

There is no logical reason they were not operating under FISA rules.
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Old 12-21-2005, 10:40 PM   #15
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Exactly...FISA seems to be set up in a way that is very conducive to sensitive foreign intelligence issues. Allowing court approval after the fact, the secrecy of the warrants, and the eased restrictions on what is necessary to get a warrant in the first place (doesn't seem to be particularly hard). I was going on earlier about how we tend to expect the President and intelligence agencies to bend some of the laws, unfortunately. But having read about the FISA courts it seems that they have HUGE amounts of space and power to act and still be within the law that it wouldn't even be necessary.

I honestly don't know what to think about this.
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