Secret Tribunal expands surveillance powers under the USA Patriot Act
by Judy Osburn

FEAR Foundation Journal, Vol. 1 No. 1

Fall 2003
posted on FEAR website 4/10/2004
(c) 2003 FEAR Foundation.  Reprinting for distribution without charge, and republication permitted if article is printed in its entirety without editing, and attribution is given to FEAR Foundation Journal, Forfeiture Endangers American Rights Foundation, 20 Sunnyside Suite A-419, Mill Valley, CA 94941. 

For the first time in spy court history the secret "FISA" court denied a government wiretap request, and sharply criticized widespread abuse by Justice Department and FBI. Government’s appeal results in first ever ruling by FISA Court of Review, granting government’s appeal for greater powers to spy on US citizens.

One of the expanded powers Congress gave to the Justice Department in the aftermath of the September 11 attacks now involves a secret court almost no one had ever heard of.

On May 17, 2002, for the first time since its creation a quarter century ago the super-secret U.S. Foreign Intelligence Surveillance Court, known by the anachronym FISA, denied a government request for expanded powers and sharply criticized Department of Justice abuse of wiretaps and other surveillance of suspected spies and terrorists.

The May, 2002 ruling was the first one ever released in the history of the high security windowless courtroom atop the Justice Department This was the first denial by the super secret tribunal of over 10,000 surveillance requests submitted by the Justice Department.

The FISA court approved 1,012 of these warrants in 2000, which permit secret searches and wiretaps for up to one year without ever notifying the target of the investigation.

"The bottom line is that they use FISA because the procedures are so much looser," said James Dempsey, deputy director of the Center for Democracy and Technology.

The intelligence court, created in 1978, is charged with overseeing sensitive law enforcement surveillance by the U.S. government. Twenty-four years later the secret FISA court dealt its the first-ever substantial defeat for the government on a surveillance issue.

Chairman of the Senate Judiciary Committee, Sen. Patrick J. Leahy, said the FISA court’s ruling might "save the Justice Department from overstepping constitutional bounds in ways that could have dire consequences in our most serious national security cases."

The government quickly appealed to another secret tribunal, the Foreign Intelligence Surveillance Court of Review, arguing that the lower spy court had "wholly exceeded" its authority and that Congress clearly approved of the greater surveillance authority. That appeal sparked the first action in the history of the FISA Court of Review.

The Court of Review overturned the lower secret court, stating the expanded surveillance powers sought by the government are authorized under the USA Patriot Act.

The 56 page decision was issued by panel of three judges appointed by President Reagan: Ralph B. Guy Jr., a semiretired judge on the 6th U.S. Circuit Court of Appeals in Cincinnati; Edward Leavy, a semiretired judge on the 9th U.S. Circuit Court of Appeals in San Francisco; and Laurence Hirsch Silberman, a semiretired judge on the U.S. Court of Appeals for the District of Columbia.

"The Court of Review’s action revolutionizes our ability to investigate terrorists and prosecute terrorist acts," Attorney General John Ashcroft said at a DC news conference. "The decision allows the Department of Justice to free immediately our agents and prosecutors in the field to work together more closely and cooperatively in achieving our core mission, the mission of preventing terrorist attacks."

Ashcroft described a new computer system that will let agents in the field draft and send wiretap requests to headquarters for approval. He also said a new squad of lawyers will be assigned to review the requests, and one prosecutor in every U.S. attorney’s office will be designated for "foreign intelligence" surveillance.

The American Civil Liberties Union called the ruling a blow to privacy. "As of today, the attorney general can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails and conduct secret searches of Americans’ homes and offices," said ACLU attorney Ann Beeson.

The Review Court ruling "rolled back 25 years of precedent as to the proper boundaries between criminal investigation and foreign intelligence surveillance," said Joshua Dratel, who worked on written arguments in the case for the National Association of Criminal Defense Lawyers.

The government had argued that because of its newly created powers under the USA Patriot Act, the court should approve secret regulations that would allow criminal prosecutors at the Justice Department to give advice to FBI counterintelligence agents and to help direct the use of wiretaps against people suspected of spying.

The lower secret court had ruled that the department was improperly trying to tear down the "wall" that was supposed to exist between criminal prosecutors and FBI counterintelligence agents, which Congress erected in the late 1970s in response to the Nixon administration domestic surveillance scandals. While criminal prosecutors must show probable cause to gain permission to wiretap, improperly labeling a case as counterintelligence makes it far easier to gain permission to wiretap.

The DoJ argued that the under FISA and the USA Patriot Act, "it is the nature of the threat, not the nature of the government’s response to that threat, which determines the constitutionality of FISA searches and surveillance. Thus, there is no constitutional basis for distinguishing between law enforcement efforts and other means of protecting this country against foreign spies and terrorists."

Civil liberties groups urged the Review Court to reject the DoJ’s quest for expanded powers, which would jeopardize the rights to privacy and to engage in lawful public dissent, as well as the warrant, notice and judicial review rights guaranteed by the Constitution’s Fourth and Fifth Amendments.

The three-judge panel that overturned the lower FISA court stated the new law’s provisions on surveillance "certainly come close" to meeting minimal constitutional standards regarding searches and seizures.

The government’s proposed use of the Patriot Act, the judges concluded, "is constitutional because the surveillances it authorizes are reasonable."

The lower FISA court’s unprecedented declassified public opinion also documented abuses of surveillance warrants in 75 instances during both the Bush and Clinton administrations.

A San Francisco Chronicle article published on October 10, 2002, expanded upon the "mistakes" criticized by the secret FISA court. An April, 2000 FBI memo, marked "immediate" and classified as "secret," describes additional problems to those cited by the court, involving agents conducting unauthorized searches, writing warrants with wrong addresses and allowing "overruns" of electronic surveillance operations beyond their legal deadline:

FBI agents illegally videotaped suspects, intercepted e-mails without court permission and recorded the wrong phone conversations during sensitive terrorism and espionage investigations, according to an internal memorandum detailing serious lapses inside the FBI more than a year before the Sept. 11 attacks.

The blunders–roughly 15 over the first three months of 2000–were never made public but garnered the attention of the ‘highest levels of management’ inside FBI, said the memo written by senior bureau lawyers and obtained by The Associated Press.

"The level of incompetence here is egregious," said Rep. William D. Delahunt, D-Mass., a member of the House Judiciary Committee who obtained the memo from the FBI and provided it to AP.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt remarked: "Honest mistakes happen in law enforcement, but the extent, variety and seriousness of the violations recounted in this FBI memo show again that the secret FISA process breeds sloppiness unless there’s adequate oversight."

The memo cites specific cases ordinarily kept from public view, including the FBI eavesdropping on conversations long after the subject of one surveillance gave up a cell phone and its number was reassigned to an innocent person. The new owner spoke a different language than the FBI’s target, and an interpreter notified investigators. FBI agents did nothing "for a substantial period of time" and failed to report the problem to headquarters, the memo says.

The memo also describes agents in other cases videotaping a meeting of suspects and intercepting e-mails without the court’s permission. The San Francisco Chronicle continued:

Another memo from the same period, disclosed months ago under a Freedom of Information Act lawsuit, described the FBI mistakenly intercepting e-mails of innocent citizens during an investigation in Denver by its Osama bin Laden Unit and International Terrorism Operations Section.

It indicated the FBI incorrectly used its "Carnivore" Internet surveillance software, now called "DCS-1000," and captured too many e-mails. That memo’s author wrote to Bowman describing an oversight official at the Justice Department as unhappy about the incident "would be an understatement of incredible proportions."

Some lawmakers who approved the new powers under the USA Patriot last year have since complained they were not adequately informed of problems under the old rules.

"As the Justice Department pushes the Congress for more powers, we should first be sure that these problems are being corrected and that existing laws are being used responsibly," Sen. Leahy said.

Rep. Delahunt predicted Congress will require the Bush administration to explain such mistakes before it is asked to extend new surveillance powers from the Patriot Act, set to expire in December 2005.