by Patrick S. Poole
Introduction
In a highly restricted room inside the Department of Justice Building in Washington D.C. resides a federal court that meets in complete secrecy. Even though the rulings this secret court issues may result in criminal charges, convictions and prison sentences for US citizens, their writs and rulings are permanently sealed from review by those accused of crimes and from any substantive civilian review. This is the Foreign Intelligence Surveillance Court (FISC), which considers surveillance and physical search orders from the Department of Justice and US intelligence agencies. During the 20-year tenure of the FISC the court has received over 10,000 applications for covert surveillance and physical searches. To date, not a single application has been denied.
The Foreign Intelligence Surveillance Act (FISA)<1> was passed in 1978, during the days of increased terrorist activity against American citizens around the world. The Cold War and American involvement in the Middle East raised fears both about increased spying on US government, military and business facilities and personnel and about terrorists planning attacks in the US and against Americans overseas. In this atmosphere, federal law enforcement and intelligence administrators requested Congress to increase surveillance powers to combat these growing trends. The FISA statute was also a regulative response to the allegations of domestic spying by federal law enforcement and intelligence agencies during the 1960s and 70s.
However, with the FISA legislation passed, the process was cloaked in absolute secrecy. While few Americans are even aware of the court’s existence, the FISC routinely hears applications for surveillance and physical searches from federal law enforcement and intelligence agencies. The FISA court issues more surveillance and physical search orders than the entire federal judiciary combined.
Many constitutional scholars and civil liberty advocates note that the overly broad powers of the FISA statute and court authority are in direct violation of the Fourth Amendment protections against unreasonable searches and general warrants. With such a powerful weapon against citizens’ Constitutional liberties, many opponents of the court argue that Congress should conduct extensive oversight of the court. But congressional oversight of the FISA court is virtually non-existent.
The only information required by FISA to be provided to congressional oversight committees is the number of surveillance orders approved each calendar year and brief semi-annual reports. The entire 1997 report on the FISC’s activity totaled two paragraphs. But what those brief annual reports do chronicle is the exponential rate of growth of surveillance orders issued by the FISC.
Recent criminal cases proceeding from evidence gathered by FISA surveillance orders have raised many questions regarding the constitutionality of FISA searches and surveillance and the assumption of enormous powers by federal law enforcement and intelligence agencies. Defense attorneys for those charged for crimes with evidence gathered under a FISA order maintain that the FISA court stands as a “court of last resort” for zealous prosecutors unable to obtain a criminal indictment from other federal courts. Some of the orders approved by the FISC have proven to be government “fishing expeditions” aimed at circumventing citizen’s Fourth Amendment protections against unwarranted searches.
Origins of the Court
With the collapse of the Nixon Administration following the Watergate scandal, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (otherwise known as the Church Committee) discovered that the federal government had been engaged in widespread domestic surveillance for several decades. In response, several members of Congress set about to devise a plan to limit the surveillance power of federal law enforcement and intelligence agencies. In the wake of the subsequent public outrage and out of fear warrantless surveillance would be outlawed altogether, President Ford supported the FISA bill to limit the “inherent authority” of the President to conduct warrantless surveillance in the interest of national security.
Prior to that time, most presidents claimed to have implicit constitutional authority to approve warrantless surveillance for national security purposes under the executive branch’s Constitutional power to conduct foreign policy. But that power had been used by government agencies to justify domestic spying against law-abiding anti-war demonstrators and many of the leaders of the civil rights movement of the late 1960s despite First and Fourth Amendment protections prohibiting such activity.
The FISA bill was a product of closed-door negotiations lasting several months between legislators and the Justice Department. Senator Edward Kennedy (D-MA), who had attempted to regulate the power of warrantless surveillance in four different sessions, sponsored the FISA legislation. The FISC concept was a compromise between legislators who wanted the FBI and National Security Agency (NSA), the only two agencies affected by the FISA statute, to follow the standard procedure for obtaining a court order required in criminal investigations and legislators. The federal agencies believed that they should be completely unfettered in conducting their foreign intelligence surveillance work inside US borders. Hence, the FISC was born.<2>
FISA was approved by Congress and signed into law by President Jimmy Carter on October 25, 1978. Executive Order 12139,<3> signed by President Carter several months later, officially chartered the FISC. The legislation established an authorization procedure for the FISC to issue surveillance orders without probable cause. It also set up a “minimization” procedure for communications by US citizens inadvertently intercepted by the agencies. With the passage of FISA, the NSA was bound for the first time to a process of judicial review before initiating domestic surveillance operations.
The FISC
The court consists of seven federal judges chosen from the federal district courts by the Chief Justice of the Supreme Court; each serves a non-renewable seven-year term. Membership of the court is staggered so that a new member is brought in each year. Members are chosen from different federal districts, however, at least one member must come from a district court in the Washington D.C. area. Judge Royce Lamberth, who is a member of the US District Court for Washington DC, currently serves as the FISC Chief Judge.
A separate FISC Appeals Court composed of three members hears the case for applications denied by the lower level of the court. To date, the appeals court has never heard a case. The last resort that the FISA statute provides for any surveillance application rejected by the FISC Appeals Court is an appeal directly to the Supreme Court.
The FISC court conducts all of its hearings in a secret windowless courtroom, sealed from the public by cipher-locked doors on the top floor of the Department of Justice. It considers surveillance and physical search applications that have been reviewed and forwarded by the Office of Intelligence Policy and Review, which is the Department of Justice’s section that deals with foreign intelligence matters.<4>
All applications forwarded to the FISC must be reviewed and approved by the Attorney General. If the FISC judge considering the application believes that the request meets the standards of the FISA statute, electronic surveillance can be approved for up to ninety days for US citizens or a year for foreign nationals. The court also hears requests for extensions, which are routinely granted.
The initial authorization of the court included only the power to approve wiretapping and surveillance. After Janet Reno approved a warrantless physical search of CIA spy Aldrich Ames’ Arlington, Virginia home in October 1993, the Department of Justice made a request to Congress that the authority of FISC be expanded to include physical searches. Congress obliged by including authorization for an expansion of FISC powers in the Intelligence Authorization Act of 1995.
President Clinton implemented the new powers through Executive Order 12949.<5> Apart from giving the FISC physical search powers, the executive order also authorized the Attorney General “to approve physical searches, without a court order, to acquire foreign intelligence information for periods up to one year, if the Attorney General makes the certifications required by [FISA].”<6>
This expansion also included the power for evidence gathered in FISA surveillance and searches to be used in criminal proceedings. However, all information regarding the order and any evidence obtained under the order are permanently sealed and classified “top secret.” The effect of this provision has been that US citizens are being charged with crimes in federal court and not allowed to review the evidence against them, nor are their attorneys permitted to see the warrants that authorized the search.
The FISA statute requires the Attorney General to submit a report each year to the Administrative Office of the US Courts, the Speaker of the House of Representatives and the President Pro Tempore of the Senate detailing the number of applications from the FBI and NSA requesting surveillance/and or physical searches, the number of orders approved and the number of applications modified or denied by the FISC.<7> Table I displays the number of orders approved by the FISC for each year since FISA was signed into law. To date, the government enjoys a perfect record in regards to application approvals, for no request has ever been rejected by the court.
Table I. FISA Surveillance and Physical Search Orders 1979-1997<8>
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However, a sharp increase in FISC orders has occurred since the ascendance of the Clinton Administration, with no apparent return to 1980s levels. This frightening increase in the use of the FISC by the present administration is compounded by the fact that in recent years the FISC has approved more applications than the whole of the entire federal judiciary. In 1996, the FISC approved 839 applications, while all federal judges combined approved only 538 requests. During 1997, federal judges approved 569 surveillance and search requests to investigate criminal activity, while the FISC approved 749 applications for investigations without any criminal predicate.<9>
Constitutional Concerns
The intent behind the passage of the FISA legislation was to impose limits and a review process upon warrantless surveillance and searches conducted for “national security” purposes in light of the numerous abuses by federal agencies against US citizens. But the politicization and present use of the FISA process has resulted in the erosion of numerous Constitutional rights and basic legal procedures that have their roots in free societies dating back to the Magna Carta.
Circumventing the Bill of Rights
The most troubling aspect of FISA surveillance and searches is that they circumvent explicit Constitutional guarantees expressed in the First, Fourth, Fifth and Sixth Amendments to the Constitution. The First Amendment guarantees the right to free speech and to peaceable assembly. However, under the FISA statute, a US citizen may be subject to a FISC surveillance order for political statements and views that are determined to be unpopular – yet legal – by unelected government officials in violation of the First Amendment.
In addition, physical searches without reasonable cause are specifically prohibited by the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
But the expansion of the FISC by the Congress and the Clinton Administration through the Intelligence Appropriation Act of 1995 and Executive Order 12949 permits black bag fishing expeditions – without cause. FISC physical search orders authorized by these legislative and executive actions allow government agents to scour a suspect’s home, papers and effects indiscriminately and without reasonable cause.
It is hard to imagine that our Constitution’s framers, carrying with them the fresh reminders of intrusive searches conducted by British military and governmental personnel for British “national security” interests, would have approved the activities allowed by FISA when they ratified the Bill of Rights with its explicit prohibitions of unreasonable, indiscriminate searches.
The Fifth Amendment right not to be compelled to act as a witness against oneself is significantly harmed when those under surveillance have full expectation of privacy in their conversations and personal communications but subsequently have their conversations recorded and analyzed by law enforcement and intelligence agencies. FISC orders may be (and typically are) enacted without cause, and yet these wrongfully acquired surveillances may be used in criminal trials.
This is one dimension to the “Catch-22” problem discussed earlier. If surveillance is conducted with cause and criminal prosecution result, the government should be required to meet the same Title III surveillance requirements imposed upon all other law enforcement efforts conducted on the federal, state and local level in order to present that evidence in a criminal trial.
A final direct Constitutional concern is that a citizen’s Sixth Amendment rights to confront accusers, to review evidence against him, and to legal counsel are frequently violated. In all of the criminal trials involving FISC orders, evidence is sealed from review from both the accused and their legal counsel. This is heightened further by the requirement to keep this evidence from the view of juries. In the case of Richard Johnson, the judge instructed the jury that evidence against Johnson existed, and yet would not be presented for “national security” reasons, requiring the jury to rely on the “testimony” of the judge. This prevented Johnson’s attorneys from challenging evidence that was not available to them but was testified to by the judge himself.
Evolution from Counterintelligence to Criminal Investigations
The stated intent and purpose of the FISC was to add oversight to intelligence agency and law enforcement spying against US citizens and to subject that spying to minimization procedures. It was designed to conduct counterintelligence, not to gather evidence for use in criminal trials. Any shift from using evidence for intelligence purposes to criminal indictments raises serious concerns, particularly when the evidence is being used against an American citizen.
As a Washington Post article recently pointed out, “The reason the FISA standard is constitutional is that the government is supposed to use FISA surveillance not for criminal investigations but for counterintelligence probes pursued under the president’s authority to conduct foreign policy.”<10> And yet the use of FISA evidence against US citizens in criminal trials is growing rapidly. To date, over 90 criminal cases have resulted from evidence gathered under a FISC order.<11>
The attractiveness for law enforcement and intelligence agencies to use the FISC to gather evidence for criminal trials is readily apparent: No reasonable cause or Title III requirements are needed to file an application for surveillance; evidence obtained cannot be reviewed or challenged by the defense; and if no evidence can be obtained, the secrecy of the FISA process prohibits the one subject to surveillance from ever knowing about – let alone challenging – the appropriateness of the court’s order.
And yet entire criminal investigations are being conducted under FISC orders. With the enormous power that the FISA process grants to the government to circumvent explicit constitutional protections in a criminal trial, the use of evidence gathered under a FISC order should be heavily regulated by Congress and the courts or the establishment of a requirement that evidence gathered for criminal trials under an FISC orders must be forced to meet the Title III minimization standards.
No Adversarial Advocate
With the constitutional right to a jury and adequate legal counsel effectively neutered by the secrecy requirements of the FISC, the adversarial aspect on behalf of the accused is all but eliminated.
The initial court proceedings prior to the approval of an order by the FISC also lack any adversarial element. When the Office of Intelligence Policy and Review presents an application before the FISC, the FISC justices should rigorously review the application in light of citizen’s unambiguous Constitutional guarantees. Instead, the court is little more than a rubberstamp for federal agencies.
Even if the court intended to review these applications with a careful eye on the Constitution, the secrecy element allows the FBI and the NSA to control what information is presented to the court for their consideration. With the government holding not only the proverbial cards but also owning the casino, the introduction of an adversarial citizen’s advocate into the FISC proceedings is a needed measure to ensure that the executive agencies and the court itself are always reminded that their power is extra-constitutional and inherently prone to abuse.
No Congressional Oversight
Congressional oversight of the FISC to date has been lax to say the least. Last year the FISC presiding judge, DC District Court Justice Royce Lamberth, delivered a speech to the American Bar Association’s Standing Committee on Law and National Security – the first time that a sitting FISC judge has spoken publicly on the workings of the FISC.<12> When addressing questions following his speech, he was asked what oversight Congress gave the court, he responded, “Apparently, in the past there has been none. We provide an annual report on some numbers and so on that the Administrative Office of the US Courts provides to Congress.” There appears to be little oversight from congressional intelligence committees as well:
- I was asked by the chief counsel of the Senate Intelligence to come up in December (1996) and meet with the staff in preparation for possible oversight hearings, and I did volunteer to appear, and I was told at the time this was the first time a judge had ever appeared, apparently since right about the [time of the] creation of the court. I think the first chief judge might have gone up for an oversight hearing a year or so into the court, and I think that no other judge on the court has ever gone up until I’m going in – I think it was either November or December.<13>
For the presiding judge of America’s most secret court, who is empowered to circumvent explicit Constitutional protections under the cloak of complete secrecy, to infer that the special nature of this court does not merit some greater degree of oversight by elected officials should be disconcerting to every American citizen.
Defining “National Security”
One of the major defenses for the FISC is the ambiguous use of the term “national security.” Some have argued that the protection that the FISC provides from terrorists and foreign spies is in the best interest of national security. But would most Americans agree that the use of a top secret court to gain economic information and data for political party contributors – a current policy of the Clinton Administration and the present practice of the FISC [ed: detailed in a Free Congress Foundation Special Report on the FISC]– be categorically in the best interests of national security? Historic precedent would indicate that it would not.
But further, should citizens be required to exchange their constitutional freedoms and protections in deference to an expansion of government power for the interests of “national security?”<15> As Benjamin Franklin once said, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Some of America’s most eminent jurists have also warned against pitting alleged “national security interests” against the Constitution. As the late Supreme Court Justice William Brennan said in the Brown v. Glines decision, “The concept of military necessity is seductively broad, and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security ‘necessities’ to justify an encroachment upon civil liberties. For that reason, the military-security argument must be approached with a healthy skepticism: its very gravity counsels that courts be cautious when military necessity is invoked by the Government to justify a trespass on First Amendment rights.”<16>
The Rubberstamp Court
Those actively involved with the court deny the accusation that the FISC has turned into a rubberstamp court. Judge Lamberth, the current chief judge of the FISC, in his comments to the American Bar Association last year said, “… I bristle at the suggestion in some quarters that we’re rubber stamps for the government because no applications have been formally denied in recent years. Some have been revised. Some have been withdrawn and resubmitted with additional information, and the process is, in fact, working.”<17>
The agencies that rely on the FISC are also protective of their perfect record before the FISC. As the current head of the Justice Department’s Office of Intelligence Policy and Review recently wrote, “Given these rigorous standards and multiple layers of scrutiny, it’s not right to conclude that the government’s track record in getting FISA applications approved means that the FISA court is a rubber stamp.”<18>
And yet the fact remains that FISC has been nothing but a rubberstamp court. Despite the claims of these FISC insiders that the court is independent and objective, the only application that the FISC has rejected in their entire history was done at the request of the FBI and the NSA – the applicants – to demonstrate in 1981 that the FISC had no power to issue physical searches.<19> Congress and President Clinton eventually granted that power in 1995 after the Aldrich Ames fiasco, however.
In the 10,000+ applications that the FISC has considered, it has enthusiastically approved the methodology and argumentation of the government in every single case. Even their colleagues on the federal bench muster up the courage once or twice a year to deny a government application for Title III wiretap applications. But the FISC has never seen fit to once in twenty years to oppose the virtual torrent of applications requesting surveillance and black-bag jobs against US citizens without any probable cause. This makes the protestations of Judge Lamberth and the FBI ring hollow, indeed.
Conclusion
An inherent vulnerability of free and democratic societies is that they are subject to a greater degree of terrorism and espionage activity because of the freedoms and liberties enjoyed by the citizenry. The bridle on government power allows for the criminal and counterintelligence elements to maneuver around the hue of constitutional protections. But the hallmark of free societies is that deference is given to the citizens, not the government.
The statist political philosophy that justifies the existence of an organization like the Foreign Intelligence Surveillance Court has been tested and tried on the crucible of history. It was the threat of such a process that led the constitutional Framers to enact the Bill of Rights to prevent the government from using such a judicial vehicle against the public. The numerous protections articulated in the Constitution and the Bill of Rights were expressly designed to prevent the gross judicial abuses of the British government Star Chamber under King George the Third – abuses and powers eerily similar to those currently granted by Congress and the Presidency to the FISC.
No free society has ever been able to survive the rapid expansion of government power seen in our current political atmosphere. Nor has a government that has whet its appetite on unbridled power been able to satiate its hunger for more – more power, more taxes, more subservient citizens. This pattern of secret power – once its effectiveness has been proven – quickly finds replication, as can be seen in the 1995 establishment of another secret court by Congress and the Clinton administration – the Alien Terrorist Removal Court.
Free societies hang in a precarious balance. Very little is actually needed to tip the societal scales in favor of anarchy or tyranny. The present political course of our country seems to indicate that our future will be the latter. The operation of the FISC is merely a symptom of the larger statist infection that has reached pandemic levels in our political system. Twenty years of experience with the FISC has demonstrated that what began as a restraint upon unlimited search and surveillance powers has fallen prey to the same philosophy and practice that has continued the erosion of our liberties. The FISC has become a political weapon against the citizenry, and for the safety and protection of our country its reign must be overthrown.
Endnotes
2) James Bamford, The Puzzle Palace: A Report on America’s Most Secret Agency, Penguin Books, 1983, pp. 462-465.
4) Jim McGee and Brian Duffy, “Someone to Watch Over Us,” Washington Post Magazine, June 23, 1996, p. W09.
5) Executive Order 12949, 60 FR 8169, Feb. 13, 1995.
8) Based on the Annual Foreign Intelligence Surveillance Act Reports to Congress, 1979-1997.
9) Table 7, “Summary Report on Authorized Intercepts Granted Pursuant to 18 U.S.C. 2519 for Calendar Years 1987 – 1997,” 1997 Wiretap Report, Administrative Office of the US Courts and the 1996 and 1997 Annual Foreign Intelligence Surveillance Act Report to Congress.
10) Benjamin Wittes, “The Catch-22 Law,” Washington Post, April 21, 1998, page A21.
11) Fran Fragos Townsend, “Limits on Counterespionage,” Washington Post, May 27, 1998, p. A17. Ms. Fragos Townsend is currently the Director of the Justice Department’s Office of Intelligence Policy and Review that reviews and forwards all surveillance applications to the FISC.
12) The speech and the question/answer session were reprinted in their entirety: Intelligence on the FISA Court, Legal Times, April 14, 1997, pp. 18-20.
15) Timothy Maier, “Snooping on Allies Embarrasses U.S.,” Insight Magazine, October 20, 1997.
17) Intelligence on the FISA Court, p. 18.
18) Limits on Counterespionage, p. A17.
19) Americo R. Cinquegrana, The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978, 137 U. Pa. L. Rev. 793, 823.
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