WHY THE FOREIGN INTELLIGENCE SURVEILLANCE ACT COURT WAS RIGHT TO REBUKE THE JUSTICE DEPARTMENT

The Bush administration recently received a harsh legal blow in the war against terrorism. It came from an unlikely place: a clandestine federal court responsible for reviewing government requests to spy on terrorism suspects.

This court, known as the Foreign Intelligence Surveillance Act (FISA) Court, refused to approve of certain procedures proposed by Attorney General Ashcroft. In an unprecedented move, it also publicly released its ruling this August. The dispute, however, had been going on since May, when the Court announced its dissatisfaction with the procedures and its belief that they were contrary to existing federal law.

The procedures would have allowed criminal prosecutors routine access to information obtained through counterintelligence searches and wiretaps - without a probable cause showing that a crime had been or was about to be committed. ("Counterintelligence" is defined within the FISA as information gathered, and activities conducted, to protect against espionage; other intelligence activities; sabotage; or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.)

When the FISA court rejected the procedures, it ruled that they would give prosecutors too much control over counterintelligence investigations, and would allow the government potentially to misuse intelligence information for criminal cases.

The FISA court was absolutely correct in its ruling - and in the midst of a dramatic expansion of executive power, it is laudable that the judiciary has in this instance done the right thing. The traditional separations between counterintelligence and criminal law enforcement should be preserved unless Congress gives the Justice Department a clear mandate to relax them - which it has not yet done.

The case is currently on appeal to the FISA Court of Review, a special three-judge panel that oversees the surveillance court. This appeal constitutes the first formal challenge to the FISA court's decisionmaking in its 23-year history. The Court of Review should affirm the ruling.

In the United States, counterintelligence and traditional criminal investigations have been treated as separate and distinct processes since the late 1970s. Monitoring spies is different from trying to catch a thief. The Justice Department's proposed procedures seem to put an end to this important distinction.

As the FISA Court noted in its recent opinion, "the government makes no secret of this policy, asserting its interpretation of the Act's new amendments which "allows FISA to be used primarily for a law enforcement purpose."

In a March 2002 memorandum to the Federal Bureau of Investigation, Attorney General Ashcroft outlined the new procedures relating to how information gathered through the FBI counterintelligence process could be shared with criminal prosecutors.

The proposed 2002 procedures authorize extensive consultations between the FBI and criminal prosecutors to coordinate efforts to investigate or protect against "actual or potential attack, sabotage, international terrorism and clandestine intelligence activities by foreign powers and their agents . . . ."

These procedures included three major provisions aimed at giving criminal prosecutors more access to counterintelligence information. First, a "disseminating information" provision would give criminal prosecutors access to "all information developed" in FBI counterintelligence investigations, including FISA-acquired information.

Second, provisions relating to "providing advice" would allow prosecutors to consult and provide advice to intelligence officials about the strategy and goals of their investigations.

A third provision would allow criminal prosecutors to advise FBI intelligence officials about the initiation, operation, continuation, or expansion of FISA searches and surveillance. Put more simply, this would allow criminal prosecutors to direct counterintelligence investigations. Rather than having to obtain a traditional warrant from a court, criminal prosecutors might be able to obtain the same information through the FISA court procedure.

The end result of these procedures: Prosecutors, in essence, would be able to direct counterintelligence operations.

The Problem with the Procedures

The government need not establish traditional probable cause required in criminal investigations before applying for a special counterintelligence "warrant." That is arguably as it should be: The dangerousness of the suspected crimes may make their investigation expedient.

In contrast, to investigate ordinary crimes, the government must still avoid unreasonable searches and seizures. That is required by the Fourth Amendment.

The proposed procedures, however, would allow the FBI to do an end run around the Fourth Amendment. If they went into effect, the government could share information gathered under the looser standards of the FISA court with law enforcement and prosecutors who go after ordinary crimes on a more frequent basis

That would mean that information gathered under rules proper for terrorists could be used to convict the hapless shoplifter who happens to use an embassy phone to discuss what she has stolen.

Keeping Counterintelligence and Criminal Investigations Separate

As I noted in a previous column, the FISA court is a secret entity - it operates in complete secrecy, away from the public eye. Indeed, prior to September 11, many citizens were unaware of its existence.

The court is currently comprised of 11 judges appointed by the Chief Justice of the U.S. Supreme Court. Until late August, the court had never published its rulings.

The FISA - enacted in 1978, in the wake of the domestic spying scandals of the Nixon presidency, Congress - created separate processes for traditional criminal investigations and foreign intelligence gathering.

Why the distinction? Congress felt that criminal investigations are very distinct from investigations of foreign powers meant to protect our national security. Hence, standards governing each type of investigation might differ.

FISA's Longstanding Special Procedures For Counterintelligence-Gathering

The FISA statute therefore created a secret process and secret court to review requests to wiretap phones, and conduct searches, aimed at spies, terrorists and enemies of the United States. The process and court were meant only for counterintelligence - not for ordinary criminal investigations.

The court issues FISA "warrants" - but these so-called "warrants," unlike traditional warrants in criminal cases, did not require probable cause of specific criminal activity. Rather, they are simply special court orders meant to be used for counterintelligence purposes.

The FISA court approves around 1,000 such warrants per year - and only rarely denies a warrant request. Persons who are the subjects of FISA warrants never know that they are targeted. An FBI agent might sneak into a suspect's house, have a look around and leave again, without leaving notice that he or she had been there.

What happens if the search happens to reveal evidence of ordinary crime that leads to a prosecution? The subject may be out of luck. The warrant and the grounds why it was granted can remain a secret - and thus will be impervious to challenge - if the Attorney General swears that the information must remain secret on grounds of national security.

How the USA Patriot Act Expanded the Basis for FISA Warrants

Originally, prior to the USA Patriot Act - enacted after September 11 - law enforcement could only seek a FISA warrant if gathering intelligence was the primary purpose of the investigation. But the USA Patriot Act allowed law enforcement to seek a FISA warrant if gathering intelligence was only a significant purpose, not necessarily the primary purpose of the investigation.

While this expansion can be debated, at least Congress authorized it. But without Congressional approval, Ashcroft acted to expand the uses of FISA warrants even further, allowing the evidence gathered as a result of the FISA warrants to routinely end up in the hands of criminal law enforcement - and even allowing criminal law enforcement to play a role in directing evidence-gathering.

Today, the FISA Court routinely approves the creation of information screening "walls" between FBI intelligence and criminal prosecutors in cases where there are overlapping criminal and intelligence components. The Justice Department procedures seem designed to tear these walls down.

On May 17, the FISA Court ruled that the proposal was not permissible under current federal law. The ruling was signed by the court's previous chief, U.S. District Judge Royce C. Lamberth. However, it was released by the new presiding judge, U.S. District Judge Colleen Kollar-Kotelly.

The ruling held that the proposed procedures would clash with FISA itself - for Congress intended, with FISA, to separate evidence gathering for counterintelligence from that for ordinary criminal investigations. It also pointed to evidence that, even without the procedures, both the Clinton and Bush Administrations' Departments of Justice had already ignored the divide between counterintelligence and policing. The evidence cited by the Court is troublesome. :

According to evidence before the Court, the ruling said, DOJ had misused the FISA process and misled the court at least a dozen times. Justice Department and FBI officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

The Court also pointed to evidence that authorities had improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions. (The Department discovered the misrepresentations and reported them to the FISA court beginning in 2000.)

Furthermore, the Court noted, in an "alarming number of instances" during the Clinton administration, the FBI may have acted improperly. In a number of cases, the FBI and the Justice Department made "erroneous statements" in eavesdropping applications about "the separation of the overlapping intelligence and criminal investigators and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys."

Indeed, the Court said, there was a "troubling number of inaccurate FBI affidavits in so many FISA applications" and violations of court orders. The inaccuracies and violations, "in virtually every instance," involved "information sharing and unauthorized disseminations to criminal investigators and prosecutors."

"How these misrepresentations occurred remains unexplained to the court," the opinion noted, somewhat ominously.

In striking down parts of the new procedures, , the Court also ruled that law enforcement officials cannot give advice related to the surveillance to investigators carrying out the searches or wiretapping. (A March Ashcroft memo had said consultation or sharing of information may include the exchange of advice and recommendations on how to carry out the surveillance and searches.)

What the Administration Will Argue Before the FISA Court of Review

Even if the FISA Act itself intended to separate counterintelligence from ordinary criminal investigation, the USA Patriot Act, the Administration will suggest, blurred the divide. In truth, however, FISA was clear about ensuring the separation and the USA Patriot Act did not expressly or implicitly repeal that divide.

A clear statement from Congress is necessary, especially if practices so destructive to Fourth Amendment rights are to be authorized. To allow for information gathered in the name of national security to be routinely funneled to prosecutors is precisely what the FISA was meant to guard against. Congress has not let down its guard yet - and fortunately, the FISA Court has not either.

Why These FISA Warrant Issues Do Not Relate to the Moussaoui Case

Until the current disagreement, the FISA court had approved all but one warrant application sought by the government since the court's inception. Nevertheless, FBI and Justice Department officials claim that previous disputes with the FISA Court had made the government cautious about seeking FISA warrants.

According to the government, the year before Zacarias Moussaoui's arrest, FISA court judges had complained that they were being misled by the FBI as it requested surveillance of Hamas, the militant Palestinian group. As a result of the complaints, the Justice Department commenced an internal investigation of the conduct of senior FBI and Justice Department officials.

One of the aftereffects of the scandal, the FBI says, was its reluctance to seek a FISA warrant to search the computer and other possessions of Moussaoui - now the alleged "twentieth hijacker" and an admitted Al Qaeda member. Moussaoui was arrested in Minnesota in August 2000, but not fully investigated.

It is important to stress, however, that the two issues - of whether the new procedures should be approved, and why the FBI did not fully investigate Moussaoui - are separate. The Justice Department and the FBI need to fix existing problems with their warrant process, not invent a new one.

Unless they do so, they will again fall into the inevitable cycle of angering the FISA court by misrepresenting facts to it, and then becoming wary of approaching the Court to get warrants in the first place. Before seeking to further expand their FISA authority, DOJ and the FBI need to put their house in order - ensuring they are telling the Court the truth so they can be confident enough to approach it when they need a warrant.

Again, the issue of the new procedures is a separate one - and the FISA Court's ruling on it was right. Congress may someday choose to amend existing law to allow ongoing collaboration between counterintelligence and criminal law enforcement. But despite all the legislation enacted after September 11, it has not yet done so. Whether to do so is ultimately Congress's choice, not John Ashcroft's, as the FISA Court rightly held.