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Saturday, Jul 11, 2009
This week's closed-door ruling by a secretive court will give the feds unprecedented domestic spying powers, a constitutional expert says.
Nov 20, 2002 | Attorney General John Ashcroft scored a major legal victory on Monday when a secret appeals court ruled that his Justice Department can spy on Americans -- by wiretapping, searching their homes and reading their e-mail, among other measures -- without first obtaining a warrant showing probable cause for criminal activity. The decision emboldens the government's war on terror at home but also raises fresh concerns about privacy and due process.
Ashcroft immediately praised the decision, saying it "revolutionizes our ability to investigate terrorists and prosecute terrorist acts." He also quickly designated a new FBI unit that will pursue intelligence warrants allowed under the new law. But civil libertarians and defense attorneys warned the ruling will allow the government to freely spy on its citizens, with little or no oversight. "The problem is it applies an across-the-board, presumptive secrecy," says David Cole, a professor of constitutional law at the Georgetown University Law Center in Washington. In an interview Monday, Cole examined the ruling; described the unique, little-known court at its center; and warned that by lowering the standards needed to spy on citizens, it may prove to be a historic erosion of Fourth Amendment protections.
Since 1978, the government has been able to go to a special closed court for permission to spy on a target even without demonstrating probable cause that the person is breaking a law. Permission has been granted only if the primary goal of the investigation is to gather foreign intelligence, not to prosecute people. Under a new provision included in the USA PATRIOT Act and upheld Monday, American citizens targeted in criminal terrorism investigations can now be wiretapped without the government's having to show probable cause.
The ruling brings to light, at least temporarily, the secretive workings of the Foreign Intelligence Surveillance Act, or FISA, court. Created in 1978, the court comprises a rotating panel of 10 judges appointed by Chief Justice William H. Rehnquist. Judges meet every two weeks in a soundproofed room in an undisclosed location to rule on the government's applications. The court's rulings are always secret and the people targeted never know that the court has approved the investigations. FISA warrants do not have to meet the higher standards of probable cause needed for federal warrants in criminal cases. Only once, out of nearly 10,000 requests, has the FISA court rejected an application.
That seemingly cozy relationship was strained two years ago, though, when the government admitted to 75 instances in which errors were made when it sought FISA applications in connection with terrorist investigations. In May of this year, citing that "alarming number of instances" of having been misled, the FISA judges unanimously rejected the Justice Department's attempt to broaden FISA's reach under the PATRIOT Act to allow law enforcement to obtain FISA surveillance warrants for criminal -- not intelligence-gathering -- investigations.
Ashcroft's Justice Department then petitioned the FISA appeals court, which, because the FISA court usually grants the government whatever it wants, had never before been activated. On Monday that three-judge panel ruled in Ashcroft's favor, clearing the way for criminal prosecutors to use broad new authority in battling the war on terrorism.
Cole, who also serves as an attorney with the progressive Center for Constitutional Rights, detailed on Tuesday how the ruling might permanently erode the constitutional provisions that protect Americans against unreasonable searches and seizures.
How significant was this ruling?
It's significant because it holds that the government can conduct secret searches and electronic wiretapping of U.S. persons without probable cause of criminal activity. The bottom line of the Fourth Amendment protection is that before the government can intrude upon your privacy by searching your home or your backpack, or wiretap your phone, it must have probable cause to believe you're engaged in criminal activity.
When FISA was created, probable cause was no longer needed in those cases, correct?
Right. The kind of quid pro quo was, we recognize that in creating areas like foreign intelligence gathering, the government has a legitimate interest in tapping people's phones and searching people's homes; that's counterintelligence. Therefore we will authorize the government to engage in those types of searches without probable cause. But only where the principal purpose of the investigation is foreign intelligence gathering and not criminal prosecution. Once it became a criminal investigation, [prosecutors] could still get wiretaps, but they had to go through the constitutionally mandated system.
If the government wants to wiretap somebody for foreign intelligence purposes, and as they monitor the information they realize it could lead to criminal prosecutions, the continued wiretap would have to be sanctioned by a criminal warrant?
Yes, and that point it could be sanctioned, because prosecutors would have developed probable cause that criminal activity is going on.
But now, if the government wants to gather foreign intelligence and they see they have a lot of information that could lead to criminal protection, they can just maintain it under FISA?
Yes.
Or they could launch the investigation under FISA?
Right. And that's more likely. I think what the lower FISA court was concerned about was that Congress [through the PATRIOT Act] was creating a route that law enforcement could tap people's phones and conduct searches without showing probable cause of a crime. So the court wanted to make sure that route does not become an end run around the Fourth Amendment. And so initially the way you did that was to say the primary purpose of the investigation has to be foreign intelligence. And once the primary purpose becomes criminal, you have to go the criminal route.
