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The Secret FISA
Court: Rubber
Stamping Our Rights
By Philip Colangelo
Covert Action Quarterly
11-27-00
Seven judges on a secret court have authorized all but one of over 7,500 requests to spy in the name of National Security. They meet in secret, with no published orders, opinions, or public record. Those spied on May never know of the intrusion. Now, Clinton has expanded the powers to include not only electronic, but physical searches.
The aftershock of the Oklahoma City bombing sent Congress scurrying to trade off civil liberties for an illusion of public safety. A good ten weeks before that terrible attack, however with a barely noticed pen stroke President Bill Clinton virtually killed off the Fourth Amendment when he approved a law to expand the already extraordinary powers of the strangest creation in the history of the federal judiciary.
Since its founding in 1978, a secret court created by the Foreign Intelligence Surveillance Act (FISA rhymes with ice -a) has received 7,539 applications to authorize electronic surveillance within the U.S. In the name of national security, the court has approved all but one of these requests from the Justice Department on behalf of the Federal Bureau of Investigation and the National Security Agency. Each of these decisions was reached in secret, with no published orders, opinions, or public record. The people, organizations, or embassies spied on were not notified of either the hearing or the surveillance itself. The American Civil Liberties Union was not able to unearth a single instance in which the target of a FISA wiretap was allowed to review the initial application. Nor would the targets be offered any opportunity to see transcripts of the conversations taped by the government and explain their side of the story.
Without access to such materials, said Kate Martin of the ACLU, targets of FISA searches are denied any meaningful opportunity to contest the basis for the execution of the FISA search.
OPEN-ENDED SURVEILLANCE
When Clinton signed Executive Order 12949 on February 9, the frightening mandate of the FISA, court was greatly expanded: It now has legal authority to approve black-bag operations to authorize Department of Justice (DoJ) requests to conduct physical as well as electronic searches, without obtaining a warrant in open court, without notifying the subject, without providing an inventory of items seized. The targets need not be under suspicion of committing a crime, but may be investigated when probable cause results solely from their associations or status: for example, belonging to, or aiding and abetting organizations deemed to pose a threat to U.S. national security. Furthermore, despite a lowered standard for applying the Fourth Amendment against unreasonable search and seizure than is necessary in other U.S. courts, under the 1995 expansion, evidence gathered by the FISA court may now be used in criminal trials. Previously, evidence was collected and stockpiled solely for intelligence purposes.
LEGALIZING THE AMES SEARCH
Granting new powers to the FISA court was accomplished quietly and treated as a non-event in the national media. The lack of reporting was somehow fitting, though, following as it did the silent debate last year when Congress rubberstamped the annual Intelligence Authorization Act.
Some legal minds found the whole exercise positively refreshing. The fact that this was done with a minimum of fuss and posturing on both sides, and without having to have a debate that tries to roll up the corners of classified information is very impressive, cheered former NSA General Counsel Stewart Baker.
Reportedly, the Clinton administration had not always been enthusiastic about expanding the court's powers. Like its predecessors, it operated under the assumption that the executive already had inherent authority to exempt itself from Fourth Amendment constraints and could order warrantless searches to protect national security. Nonetheless, the government avoided allowing this inherent authority to be tested in the courts.
Then along came Aldrich Ames. The spy case proved a convenient vehicle on which to hitch expansion of state power. It also offered a glimpse at the state-of-the-art domestic counterintelligence techniques that might well be turned on an activist group near you. Following months of electronic and physical surveillance which included a break-in of Ames' car and searches through his office and family trash FBI agents were finally turned loose in the early morning hours of October 9, 1993. They didn't `pick' locks like in the movies; they made their own keys. Among other agents in the FBI, the consensus was unanimous: The tech agents were geniuses.
Thanks to a warrant authorized by Attorney General Janet Reno, a team of agents from the sprawling National Security Division had permission to enter the Ames home in Arlington, Va. There was only one minor problem. The attorney general of the United States does not have the authority to order a warrantless physical search of a citizen's home, argued Professor Jonathan Turley of George Washington University National Law Center. The Aldrich Ames search in my view was obviously and egregiously unconstitutional.
Other civil liberties lawyers agree with this evaluation, and the Justice Department itself was concerned enough about the question to refer to this problem when it negotiated a deal with Ames in order to avoid trial. While Ames was sentenced to life in prison, his wife Rosario received five years. We didn't get to the point of litigation, I regret to say, said Ames' lawyer Plato Cacheris. The problem was that Ames very much wanted to see that his wife was treated a little more softly than he was being treated.
Now eager to put a stamp of judicial impartiality on the hazy executive branch doctrine of inherent authority, the Justice Department immediately got behind the bill to expand the FISA court's power. Soon after Ames pleaded guilty last year to spying, administration officials began arguing that adherenceto traditional Fourth Amendment protections for American citizens would unduly frustrate counterintelligence efforts against spies operating in the U.S.
Physical searches to gather foreign intelligence depend on secrecy, argued Deputy Attorney General Jamie Gorelick. If the existence of these searches were known to the foreign power targets, they would alter their activities to render the information useless. Gorelick went on to explain that A [traditional] search can only be made when there's probable cause to believe a crime is involved, whereas a national-security search can be made at a substantially earlier stage. We often don't know what we're looking for when we go in, she observed.
THE PRICE OF SECRECY
The possibility of FISA-sanctioned fishing expeditions was only one of the potential abuses that alarmed legal scholars and people concerned with civil liberties. It's absolutely ripe for abuse, said New York City defense lawyer Ron Kuby. There are hundreds of solidarity groups that American citizens work with, and all of those groups could be targets under FISA. 16 These groups and individuals, engaged in legitimate dissent and solidarity work with the victims of U.S. foreign policy around the world, fear that their First and Fourth Amendment rights will be eroded.
Others worry that under cover of secrecy, the court would exceed even its own broad legal mandate. Clearly the FISA court was strengthened to allow the government to conduct searches they would not be allowed to conduct under the traditional constitutional provisions, said Turley. That means the government could attempt and fail to secure a search warrant under traditional constitutional arguments, then go to the FISA court and convert the case artificially into a national security investigation and secure approval for the very same search.
In the post-Oklahoma bombing atmosphere, the temptation to broadly interpret national security to include homegrown terrorism is likely to increase. Defenders of the FISA court point out that there are lengthy provisions written into the original legislation to minimize the impact of FISA-authorized surveillance on innocent Americans.
Of course, since no information about the actions of the court is permitted to escape the sealed FISA chambers, the public is expected to accept on blind faith that the minimization procedures are functioning properly and the various law enforcement and intelligence agencies are not overstepping their bounds. But given an extensive and well-documented pattern of past government abuses, Turley's warning of future abuses seems safe. Even when warrantless searches were unambiguously illegal, the government conducted thousands of them and violated the civil rights not only of possible spies, but of people engaged in constitutionally protected dissent. Secret searches of Americans' homes and papers in the name of national security were one of the worst civil liberties abuses of the Cold War, noted the ACLU's Martin. Instead of approving them, the Congress should outlaw them.
Even if the court and law enforcement agencies did not overstep their powers, legal scholars assert that warrantless searches are unconstitutional, no matter what the context or motivation. The court's defenders, on the other hand, argue that the end justifies the means. Gorelick recently conceded that the government could not gather as much evidence under the traditional standard of the Fourth Amendment. By this logic, notes Kate Martin, It is also true that torture allows the government to get information it would not otherwise get.
While refusing to be specific, FBI Director Louis Freeh argues that national security is so important that it constitutes a special category. He testified before Congress that, "Because any discussion of the importance of FISA-based electronic surveillance would involve highly sensitive matters and highly classified information, suffice it to say that information derived from FISA electronic surveillance is critical to the president of the United States, the National Security Council, the intelligence community, the Department of Defense, and the State Department.
The Supreme Court, however, has never endorsed the concept of a national security exception for physical searches. In 1972, it ruled that the Fourth Amendment prohibits warrantless surveillance of domestic targets. The Court specifically warned that the danger to political dissent is acute where the Government attempts under so vague a concept as the power to protect `domestic security.'
But given the secrecy surrounding the FISA court, even finding a test case to challenge incursion on Fourth Amendment rights may be difficult. Most people surveilled under the authority of the court remain blissfully ignorant that a search has taken place.
CASE IN POINT
Among the handful of FISA-tainted investigations that have become public is the prosecution of Khader Hamide and Michel Shehadeh of the so-called Los Angeles Eight for their membership in the Popular Front for the Liberation of Palestine. In that case, Martin said, permanent residents whom the government sought to deport based on their First Amendment activities were informed that they had been subject to FISA surveillance. The government then secured a completely ex parte ruling that the surveillance was legal in a proceeding in which the [U.S.] residents were not even allowed to participate. That ruling then foreclosed forever any adversary hearing on the legality of the surveillance.
In another case, people not themselves targets of a FISA-authorized telephone tap were hauled into court for having the misfortune of calling somebody who was under electronic surveillance. In 1988, after activists Vernon Bellecourt, Bill Means, and Bob Brown phoned a member of the Peoples' Committee for Libyan Students, they were ordered to testify before a grand jury investigating the group. When the three men refused to cooperate and testify even with immunity, they were slapped with a citation for contempt. James Cacheris was one of the federal judges who issued that citation in support of the FISA warrant. Five years later, he was appointed to the secret court.
SEVEN MEN AND A RUBBER STAMP
Although its powers have been enhanced to include physical searches, the FISA court retains the same low profile structure that it had in 1978. On the first tier are seven federal judges, appointed to staggered seven-year terms by the chief justice of the Supreme Court. Each judge takes a turn reviewing applications submitted by the attorney general. He or she sits in a sealed, vault-like chamber on the top floor of the Justice Department headquarters, where the door is always locked and guarded and the room is regularly inspected for bugs.
In the unlikely event that the first tier rejects an application, the Department of Justice can appeal to the FISA Court of Review. Should this three-member panel of judges also deny the request, it could then be heard by the Supreme Court. Those last two progressions up the judicial hierarchy have proved strictly unnecessary, however. Federal Judge Robert W. Warren from Wisconsin, senior panelist on the second tier FISA Court of Review, joked that he has not exactly been overwhelmed by the workload since his appointment in 1989.
We've never met since I've been on it, said Warren. I was sent a designation by the Chief Justice, and I asked a couple of people what in the world the court did because I had not even heard of it before I got that designation. I also had some correspondence with my brethren on the court and we've talked to each other and said, `What are we supposed to do?' and, `When is something going to happen?' Nothing ever has happened. It's an empty title as far as I am concerned at this point.
Based on the remarkable record of servility the first-string spy court has achieved on surveillance requests 15 years with only one rejection, and that one on technical grounds new requests for physical searches are unlikely to cut into the Review Court's happy schedule.
THE NOOSE TIGHTENS
This recent strengthening of the FISA court fits comfortably in the pattern established in the late 1970s after the massive FBI crime spree against political activists. When the illegalities were documented by the Senate's Church Committee instead of stepping in and stopping political policing activities by DoJ and intelligence agencies Congress took exactly the opposite approach. It waved a flag over a pattern government activities that had been criminal, draped it in authoritative language, and magically made it all legal. Since that time, through a series of laws and executive orders, policy-makers have further chipped away at freedoms previously presumed to be sacred.
With the FISA court now able to authorize physical searches as well as electronic surveillance simply by citing national security concerns the elite legal circle is nearly complete. The act is a triumph for our constitutional system of checks and balances, former Indiana Sen. Birch Bayh explained in the twilight of the Cold War. It establishes that the authority to conduct foreign intelligence surveillance in this country will be shared by all three branches of government.
In the aftermath of the Oklahoma City bombing, Democrats and Republicans are competing to come up with more ingenious ways to erode civil liberties. Congress will likely pass a beefed up Omnibus Counterterrorism Act which will (see pp. 50-52) create secret FISA-like courts in which non-citizens can be investigated and deported without access to evidence or recourse to appeal. Given the current political atmosphere, the Clinton administration's past support for expanding the FISA court's authority, as well as a long, sorry history of abuse, the elite legal posse will no longer need to strain very hard to pull the noose right around the Bill of Rights.
Addendum
From Tim Hunter timhunter@juno.com To: intelforum@his.com Date: 11-25-00 Subject: Foreign Intelligence and Surveillance Act
Contact Washington, DC attorney Ern Reynolds for leads. Ern has tripped over FISA a number of times, is getting to be an expert. Four years ago he never heard of it.
Each FISA plaintiff is not notified of the charges, is not advised of the trial date, not allow a public trial, not allowed to appear in his own defense, not allowed counsel, not allowed to rebut testimony, not allowed a transcript of the proceedings, and not allowed to appeal. In fact, (this is the incredible part) the accused is not allowed to be present at his trial. A real Federal District Court Judge presides over this sorry excuse for legality, and they rotate on some cyclical basis. Access to the FISA Court is actually provided several agencies, not only the CIA. No Federal agency has ever lost a case in FISA Court (hard to believe) except one case. In that case the judge let the agency refile and then the agency/court (hard to tell them apart) successfully convicted somebody.
Before the 1978 Act agencies didn't have to bother with the FISA Court and just went out and "did their thing." In an odd way the FISA Court is actually a tiny step in the right direction. Problem is there haven't been any more steps in the right direction!
The CIA's activity in the US is well known and gets crazier and crazier. The branch of the CIA carrying missions within the US is the same as overseas: the Clandestine Service. While its motives are often excellent, patriotic, etc they are "result-oriented" and disinterested in the fact that their actions violate the rule of law and even good intelligence practices. Many of their targets are bad guys who should be given a fair trial, etc. Put another way, these boys prefer the streamlined approach of the spy/assassin to the hard labor of real police. Since there is no effective oversight of their work, they tend to wind up doing the wrong thing for the right reasons and are unheralded. Some of them are defiantly criminal and take pride in using the CIA as their front. Who can blame them? It surely takes a skilled and talented criminal to make the CIA his plaything.
Tim Hunter
Intelligence Forum (http://www.intelforum.org) is sponsored by Intelligence and National Security, a Frank Cass journal (http://www.frankcass.com/jnls/ins.htm)
And here's the link back to the Trannie Thread
This is beyond frightening. Thank you for this find.
This does not bode well for continued freedom.
Franz Kafka would have judged this to wild to fictionalize. But for us - it's real.
This is not a work of poetry.
I'll loan you a bit of my tinfoil to get started, but after that you're on your own.
Any chance of Bush rolling some of this back? It sounds amazing on its face. Why didn't Wen Ho Lee just "disappear" into one of these Star Chambers, never to return?
Maybe they'll 'bury' Lee in the trash dump after the FBI is done digging through it to find the missing 'discs'.
fyi
This is approaching a work by H. P. Lovecraft.
Yorktown - Stay well
Gee, I wonder why no one is bumping this thread. ;-)
BUMP!
As quietly as possible (although it sometimes breaks out into the open, usually with the sound of gunfire and the death of innocents), a "shadow government" has been set up all around us my friend. It's foundation is not the constitution, but Executive Orders, Presidential Procalamations, Secret Acts, and Emergency Powers.
It has all the tools to be an absolute tyranny and those behind it (on both sides of the aisle) who crave power and their form of "governance" continue to move towards it while we are distracted by so many other goings on.
C'mon, Jeff! Just eat your bread and watch the circus!
I don't see that as a possibility. This is wherein the danger lies in the precedent set by the Clinton criminal administration. God only knows who will be in power next, but there are no checks and balances anymore. This is exactly the SORT of thing I've been protesting all along. Libs just don't see this!
But when and where do they find this in the major media? They don't even know!
It has all the tools to be an absolute tyranny and those behind it (on both sides of the aisle) who crave power and their form of "governance" continue to move towards it while we are distracted by so many other goings on.
Like this "election" mess?
Something was nagging at the back of my mind last night when I first read this, but I didn't make the connection until this morning.
The article makes strives to make it clear that the targets of the Kafka Kourt are foreign nationals, but then it also reveals that once a "target" is "approved" all of his or her contacts are also investigated.
We have some fairly active "furriners" who are FReepers - not picking on you, Mad, just wanted you to see this - and who could be used as an avenue of attack against Free Republic.
Outlandish? Yes. But then, so is this whole Kafka Kourt outlandish.
Why didn't Wen Ho Lee just "disappear" into one of these Star Chambers, never to return
Good question! Don't you remember? When the FBI asked Reno to get surveillance authorization for Lee from the FISA court, Reno refused. In fact, as a result of the China "spy scandal", Congress is currently working on legislation to make it even easier for the feds to get FISC warrants.
Never been good at "going along to get along".
Besides ... the bread is moldy.
Think we should page Bryan??? (ya know, the master of volley 'fires'??) LOL!
This is one of those ideas that has a valid purpose behind it, but is wide open to terrible abuse. And there's no way to check to see if it is abused.
Like all things that don't have the light of day shining on them, you can be sure that it is being twisted to suit the purposes of those who hold the power.
The Libertarian Fantasy on the Supreme Court
Source: www.potomac.org
Posted on 11/30/2000 12:06:35 PST by Huck
There are two dimensions to the gun lobby's individual right to gun ownership. One is the libertarian fantasy that we reverse the process described by John Locke in The Second Treatise of Government, declare individual sovereignty, dissolve political community, and return to the State of Nature which is the state of anarchy. The libertarian fantasy mixes with other political ideologies, across the political spectrum, and expresses a defeatist retreat from political life.
The other dimension is more closely related to present gun control politics. An exaggerated fear of confiscationist designs in the gun controllers provokes a demand for "a broad individual right" that would protect gun ownership from confiscation. To provide this protection the courts would have to elevate a Second Amendment right to the status of a fundmental right, a status it does not now have.
====================================
Interesting new statist spin on gun control, etc..
Do you know anything about this Potomac Institute? Quite a few new posters on FR are spouting their propoganda. Anyone?
Dog Gone, the article doesn't seem to say, but isn't there a Congressional subcommittee in charge of overseeing these operations? Or is Congress just passing the bills then turning its collective back?
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.
--Source
Congressional oversight of the FISA court is virtually non-existent.
This is something which ought to be changed. At least a small subcommittee should have oversight on a frequent basis.
To provide this protection the courts would have to elevate a Second Amendment right to the status of a fundmental right, a status it does not now have.
Let them try and confiscate them and they will see just how fundamental a status this right has.
With respect to this institute, I have no knowledge of them.
Keep an eye peeled.. Just in the last several weeks we've seen quite a bit of their line..
Thanks Jeff.
You may find this an interesting read...
Is membership in the PFLP guaranteed under the First Amendment, given their involvement in the murder of at least one US citizen (Leon Klinghoffer)? This article seems to say that it is...
I suppose that membership in Posse Comitatus, the Weathermen or the Weather Underground, the American Indian Movement, the Symbionese Liberation Army, the Order, and the Aryan Brotherhood are all constitutionally protected, even after they bomb/shoot/loot.
Kirke&Burke: this is what I was telling you about earlier
patriot x, WIGGY, LSJohn: FYI
bttt
Thanks for the flag. Already saw it but certainly bears watching.
Dog Gone, the article doesn't seem to say, but isn't there a Congressional subcommittee in charge of overseeing these operations? Or is Congress just passing the bills then turning its collective back?
Congressional oversight of ALL intelligence issues is virtually non-existent. The intelligence community routinely denies information even to FBI and White House...... when Congress makes demands they just smile and wink at one another.
Chuck Grassley, Republican U.S. Senator from Iowa and one of the most honest members of Congress has tried in various ways to penetrate various classified compartments, but most of what he has gotten he's gotten through leaks from sympathetic pros/insiders who want the mess cleaned up.
Hmmm. The Cacheris brothers again. One defending, the other on the court. I didn't realize Plato had defended Ames as well as Monica. Tight little incestuous circles in DC. (Remember our new recruit to Ray's investigation worked for Cacheris.)
>The article makes strives to make it clear that the targets of the Kafka Kourt are foreign nationals, but then it also reveals that once a "target" is "approved" >all of his or her contacts are also investigated.
This would seem to be the same mechanism known as "discreet" in the EU, under the Schengen rules. Basically, if you're observed sharing a taxi, or standing in a line, or otherwise having close proximity or contact with someone under surveillance, you may be tagged too.
This thing about not allowing most of the stuff allowed under "civilized" jurisprudence is growing in quite a few of the traditionally democratic countries. You might want to look at some of the British legislation, for example.
FWIW, I don't really think FR will ever be in any danger even with us furriners hanging out here. It's too transparent to raise paranoia and to hi-profile to harass.
HOWEVER: You should _never_ consider anything transmitted over the net to be even close to private or secure.
I believe it's a "private" compound where Elian & his "family" were kept after the Cubans came here. Some kind of "think tank"...
Thanks for the link, Uncle Bill. I did think I had read this somewhere before, but for the life of me I couldn't remember where.
HOWEVER: You should _never_ consider anything transmitted over the net to be even close to private or secure.
LOL! I don't. That's why I only appear to be who I seem to want to be someday. And I'm fixin' to change all that...
Thanks for the post. Ominous possibilities. Kafka's Trial right on. This, as all law when it breaks down from crashing into individual rights, will default to the 2nd amendment.
See Sandy's link above and notice Judge Royce Lamberth as presiding Judge of FISC. It is a tight little group, eh?
The targets need not be under suspicion of committing a crime, but may be investigated when probable cause results solely from their associations or status: for example, belonging to, or aiding and abetting organizations deemed to pose a threat to U.S. national security.
This was discussed previously on FreeRepublic along with a Justice Department list of organizations to target. I saved it but unfortunately have lost it.. there were a lot of pro-life and pro-2nd Amendment groups on the list if I recall correctly. One group they targeted was a pro-life organization run by Catholic priests!
If anyone has that list please post it. Thank you.
Wonder how many terrorist plots they have stopped? Sounds like despite trampling Constitutional rights, this was ineffective. Maybe because x42 told them to go after movie pirates!
Absolutely. This needs to be
bumped, bumped, bttt.
This should be required reading by every FReeper.
Think it's important enough to have Bryan on it with his volley flags???
Whoooosh...a blast from the past!
Bttt!
If'n y'all could help out with some volley fire, we'd be much obliged, Bryan.
Bttt!
LOL!!!
In light of all the yammering about the ministry of homeland defense, it would be good to review this past thread.
Bttt! Again!
Considering the nature of the contents of this rather old thread, and the events of the past couple of weeks, this information could use some of your skills at effecting a wider dissemination.
IOW, how's about a 'ping' or two ... or several? :-)
Guess what, this court has been getting quite a deserved workout right now. You want to put all the terrorist suspect search warrents into the public record now? Suuuuuuuuure.
Note: this court still has to answer to Congress.
Note: this court still has to answer to Congress.
For some reason that doesn't give me a whole lot of comfort. Any idea when Congress last asked any questions of this court?
Look, I'm all for fighting terrorism and murderous terrorists every way possible. I'm not even averse to using a few methods that could be termed "extra-legal". At the same time, this court has been in existence a long time, established long before we were concerned about internal acts of terror.
And since opening an investigation under the auspices of this court allows the government to investigate anyone who has even the slightest contact with an identified suspect, one can only wonder how far some of these investigative efforts travel before they're closed down.
Assuming, of course, that they ever are closed down...
Secrecy during a sensitive, on-going investigation into criminal activity is one thing. Secrecy forever is quite another.
In light of recent events, just thought I'd "ping" you to this one again.
Thanks so much, logos - I would miss much without help like yours.
Sorry about the delayed response. Stand by for volley fire.
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!
Volley flag ... FIRE!