A Recent Oregon Ruling Allowing Secret Warrants in Domestic Terrorism Cases May Set A Troublesome Precedent

Last week, an Oregon federal court heard oral arguments on a motion in United States v. Battle, a case against five terrorism suspects. The defendants are accused of conspiring to assist al-Qaeda forces in fighting U.S. troops in Afghanistan. Arrested last October, the five are predominantly African-American converts to Islam; the government alleges that together, they constituted a terrorist cell.

In their argument, the defendants contended that the government should reveal the justification that support the issuance - by the clandestine Foreign Intelligence surveillance Act (FISA) Court - of the secret warrants that enabled the FBI to surveil them.

Specifically, the defendants seek to review the warrant applications the FBI submitted to the FISA Court, on the basis of which the warrants were granted. Pursuant to the warrants, the FBI secretly wiretapped the suspects' phones and planted microphones in their homes. As a result of its surveillance, the FBI ended up intercepting more than 271 conversations.

Without knowing the basis for the warrants, the defendants contend, they cannot know if their Fourth Amendment rights against unreasonable searches and seizures were abridged. The judge ruled, however, that the basis for the warrants will remain secret.

This is a very troubling development. Unless the ruling is reversed on appeal, it will mean that a U.S. citizen can now be convicted of a crime, without ever knowing the reasons why the government was given permission to spy on them in the first place.

It is also a significant one, for the Battle case is one of the first to test the limits of the government's expanded spying powers under the post-September 11 USA Patriot Act.

The Defendants and the Charges Against Them

The five defendants are Patrice Lumumba Ford, Jeffrey Leon Battle, his ex-wife October Martinique Lewis, and brothers Ahmed Ibrahim Bilal and Muhammad Ibrahim Bilal. (A sixth suspect, Jordanian native Habis Abdu al Saoub, described as the group's leader, remains at large.)

The four men are accused of attempting to travel to Afghanistan in the fall of 2001, to join the fight by al Qaeda and the Taliban against American forces there. All parties agree that the men never made it to Afghanistan, however. According to court documents and news reports, they made it as far as China, attempted to get to Pakistan and ultimately turned back. Meanwhile, Lewis -a U.S. citizen - remained in Portland. She is accused of wiring money to Battle, her ex-husband.

All five defendants have been charged with conspiring to wage war against the United States, and attempting to support a terrorist organization.

The Post-September 11 Increase in Secret Domestic Spying

After Congress passed the USA Patriot Act, in response to the September 11 terrorist attacks, the use of FISA warrants grew. (In a prior column, I explained in detail the FISA court's role under the Act.)

Normally, warrants require "probable cause" to believe that a crime is being planned or committed. But FISA warrants do not. They require only that the FBI show probable cause to believe that "the target of the electronic surveillance is a foreign power or an agent of a foreign power."

Prior to the advent of the USA Patriot Act, the law also specified that "the purpose" of a secret warrant must be counterintelligence (basically, spy-versus-spy activity). Now, however, intelligence gathering need not be "the purpose," but rather only "a significant purpose" of the warrant.

The "significant purpose" language opens the way for FISA secret warrants to be used for dual purposes - one of which is simply normal criminal law enforcement. Indeed, the Bush Administration has defended, and the FISA Court of Appeals has upheld, this very practice.

And that, in turn, raises the specter of a possible end run around the Fourth Amendment, as I detailed in a prior column. Spurious or ill-founded "counterintelligence" purposes might be used as a pretext to get warrants to spy, in a regular law enforcement context, even when probable cause of a crime is lacking.

Meanwhile, we, the public, are in the dark about virtually everything relating to FISA warrants. Even statistics about how many have been issued recently are classified. The last year for which such statistics are available is 2001, when the court approved 934 warrant applications. What was the basis for the applications? We don't know. How many are being granted now? No idea. And what are the bases for these? Again, it's secret.

An Unanswered Question: How Are the FBI and FISA Court Reading the New Act?

How, specifically is the "significant purpose language" being interpreted? That's one of the things the five Oregon defendants want to know.

Were the FISA warrants, rather than normal warrants, simply obtained because it was the easiest thing to do? There is certainly a risk that that was the case, and the defendants deserve to know the answer. Now it seems they never will.

The FISA Court's proceedings are secret, so the only chance defendants have to access FISA warrant applications, and their bases, is in their criminal trials. But, with the court's recent ruling, the five Oregon suspects have lost that chance.

Defendants Won't Get the Applications Even If They Move to Suppress Evidence

Amazingly, even if the defendants move to suppress evidence resulting from the wiretaps and microphones from being offered at trial, they may still not have a chance to see the warrant applicants. The government will show them only to the judge - along with the underlying evidence, and an affidavit from the U.S. Attorney General's Office stating that releasing the material would harm national security.

Without the benefit of adversary briefing, the judge will then rule on whether the warrants satisfied the law. Defendants will still remain in the dark - and when the motion is decided, they'll receive yet another ruling based on secret evidence.

The FISA statute does state that a district court "may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." The court has the discretion, however, to keep entire applications secret.

Let's hope that before that happens, the court's decision on the defendants' motion for disclosure of the warrant applications is appealed and reversed. U.S. citizens who are being criminally prosecuted need to know why they were spied on in the first place. Maintaining the Fourth Amendment requires no less.