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Jewish World Review Sept. 6, 2002 / 29 Elul, 5762

Nat Hentoff

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Who watches the secret court? | The secret court overseeing the Foreign Intelligence Surveillance Act recently made headlines by refusing Attorney General John Ashcroft's request for broad new surveillance and investigative powers that, in part, circumvent the Fourth Amendment's due-process standard.

FISA Court, composed of rotating federal judges from around the country, had never in its 24-year history released a public report on any of its rulings -- until May 17. We, the citizenry, knew nothing of that report until Sens. Patrick Leahy (D-Vt.), Charles Grassley (R-Iowa) and Arlen Specter (R-Penn.) released it on Aug. 22. The Justice Department had opposed releasing it, but the three senators -- who've been at odds with the attorney general about his secrecy -- asked the court for special permission to release it publicly. FISA Court emphasized in its report that the FBI had previously submitted more than 75 inaccurate and sometimes downright false information to the secret court in its applications for search warrants and wiretaps.

These abuses of its trust by the FBI did not take place under Ashcroft's watch. The misuse of its powers occurred while Janet Reno was attorney general and Louis Freeh headed the FBI. In early 2000, the Justice Department discovered these erroneous submissions and reported them to the FISA Court. Ashcroft began an investigation, not yet completed, as to whom was responsible.

The Justice Department says it's appealing the FISA Court's denial of the new authority Ashcroft asked for in March because it needs these new powers in the war against terrorism. The appeal goes to a FISA appellate court, which has never before been convened. Any further appeal goes directly to the Supreme Court.

What's at stake in the constitutional conflict between the Justice Department and the FISA Court is our national identity -- whether this country can secure its liberties against terrorism without compromising them. Established by Congress in 1978, the court allows the FBI to conduct electronic surveillance and physical searches in gathering foreign intelligence on terrorism and espionage. But, unlike regular court warrants for criminal investigations, FISA doesn't require the FBI, in these secret operations, to show probably cause -- a high Fourth Amendment standard -- that a crime is being committed to obtain a warrant. Targets can be anyone in the United States, including citizens.

FISA rules are that the primary purpose of the FBI in these wiretaps and other searches is to collect foreign intelligence, and not information to be used in regular criminal prosecutions. But, in March, John Ashcroft told the FISA Court that he wants -- as Georgetown University law professor Jonathan Turley reported in the Aug. 26 Los Angeles Times -- to use the FISA searches "primarily for a law enforcement purpose" by prosecutors in criminal investigations, making secondary "its original foreign intelligence-gathering purposes."

This would allow prosecutors to help direct FISA searches, under these lower constitutional standards, thereby bypassing the Fourth Amendment privacy protections of American citizens in future secret searches not primarily for foreign intelligence. The FISA Court states it wants to prevent that.

However, the FISA Court has approved about 1,000 secret warrants every year since 1978, and never rejected any. What are its own criteria for granting such wholesale secret surveillance and physical searches?

Furthermore -- and this is all the more troubling -- in the Washington Post's Aug. 23 story on the FISA Court's strong criticisms of the FBI, Dan Eggen and Susan Schmidt report that: "A senior Justice Department official said that the FISA Court has not curtailed any investigation that involved misrepresentation or erroneous information (from the FBI). Nor has any court suppressed evidence in any related criminal case" where the FBI investigation was authorized by the FISA Court under these illegal representations.

While publicizing the rejection of the Ashcroft request is important, the FISA Court should explain why it has never rejected any FBI surveillance requests.

As Supreme Court Justice William O. Douglas said, "The history of liberty is the history of due process." Due process means the justice system has to be fair, and accountable when the system breaks down, as it did in the failure of the FBI to adhere to the rule of law, and the failure of the FISA Court to hold the FBI accountable for so long.

Worse yet is the failure of Congress to exercise its oversight power over the FBI and the Justice Department while all this was going on.

Finally, both the Senate and the House judiciary committees are now insisting that Attorney General Ashcroft answer a long list of questions on his implementation of his counterterrorism policies -- very much including the shadowy provisions of the USA Patriot Act that endanger the very freedoms we are fighting to protect against terrorism.

As every schoolchild learns, the Constitution insists on the separation of powers so that no one branch of our government becomes imperious. Congress must also ask some searching questions of the Foreign Intelligence Surveillance Court, whose secrecy should not be absolute.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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