America's New War?
By Michael Doyle
Scripps Howard News Service
Published in the Nando Times
WASHINGTON (November 4, 2001 5:40 p.m. EST) - Congress has just given the Foreign Intelligence Surveillance Court new powers - even as some fear the court's growing power.
"The secrecy surrounding the court's proceedings is a real problem for democratic accountability and for the rule of law," said Lee Tien, senior staff attorney with the Electronic Frontier Foundation.
When the Justice Department wants to tap a suspected foreign agent's phone, or secretly send investigators to ransack the suspect's home, it comes to the Foreign Intelligence Surveillance Court for approval. Meeting in a windowless, soundproof room in the Justice Department, with its members drawn from the nationwide pool of U.S. District Court judges, the court almost always gives the Justice Department what it wants.
Last year, the court received a record 1,005 requests for intelligence gathering operations. All were approved. The previous year 886 applications were received. All were approved. The year before that, 796 applications were received. All were approved.
Since Congress established the Foreign Intelligence Surveillance Court in 1978, only one Justice Department application for a wiretap or covert search has been denied. More than 12,000 have been approved. All details are hush-hush. The court's annual reports amount to two rudimentary paragraphs, and congressional oversight is essentially non-existent.
This record of concealment and near-unanimous approvals leaves skeptics worried that the court is a rubber stamp for a Justice Department that now has more leeway than ever before to exploit the secret court's powers.
But for others, intimately familiar with the ways of covert war, the members of the secret court approach their work with just the right amount of discretion.
"The judges take it very seriously," said Stanley Sporkin, a former federal judge who also served as the CIA's general counsel. "They're very careful, and very (legally) conservative. They know the law; they know what can be done, and what can't be done."
All seven members of the court are men, with only one African American. Three of the members are over age 70 and five come from the East Coast. Under a new anti-terrorism law, the court will expand to 11 members.
"It's a workload thing, (and) also a matter of always having a judge available in an emergency," said Stewart Baker, former general counsel for the National Security Agency, explaining the court's expansion.
As a matter of course, the court's members do not speak publicly of their work. But others familiar with the court's work are quick to speak up in its behalf. Baker, for one, said the nearly 100 percent approval rate for the Justice Department's requests reflects the department's approach.
"The Justice officials who control what goes to the court are if anything too conservative, only sending forward requests that are sure winners," Baker said, noting a "reluctance to ask the court for orders in cases that are close to the line."
A terrorist group known as the Justice Commandos of the Armenian Genocide illustrates the court's work, as well as some of the questions that arise about its reach.
In 1982, the FBI was investigating members of the Armenian group blamed for at least 21 assassinations of Turkish officials. Investigators went to the Foreign Intelligence Surveillance Court and obtained approval for secret wiretaps. Through a tap on the Santa Monica, Calif., home of a man named Viken Hovsepian, agents learned of plans to bomb the Honorary Turkish Consulate in Philadelphia.
Hovsepian and his colleagues challenged their subsequent convictions. They argued, in part, that the secret court was only supposed to be used for intelligence purposes and not domestic law enforcement. But in upholding the convictions, the 9th U.S. Circuit Court of Appeals made note of a fact still relevant today.
"International terrorism by definition requires the investigation of activities that constitute crimes," the 9th Circuit noted.
More recently, the FBI used 550 consecutive days of wiretapping authorized by the secret court to lead to the arrests and 1998 convictions of a husband and wife who spied for East Germany. Neither the two convicted spies - Theresa Squillacote and Kurt Stand - nor their attorneys were ever permitted to see the evidence collected during the secretly approved wiretapping.
This sometimes touchy relationship between foreign intelligence and domestic law enforcement is at the heart of the current debate over the court's work.
Wiretaps and searches are potentially dangerous tools, covered by the Fourth Amendment's protections against unreasonable searches and seizures. Typically, warrants are supposed to be obtained to ensure the search or seizure is reasonable.
But in the case of investigating foreign intelligence threats, presidents have sought more discretion to protect the national security. Speed, efficiency and secrecy become paramount.
Congress created the Foreign Intelligence Surveillance Court to ease this tension. Investigators got the secrecy they need, but they also had to keep foreign intelligence collection as the "primary purpose" of the searches.
The new anti-terrorism law, though, expands this so that foreign intelligence need only be a "significant purpose." This seemingly slight shift in wording worries those who fear too many people will be swept up in a law enforcement net.
"It seems obvious with this lower standard that the FBI will try to use (the court) as much as it can," Sen. Russell Feingold, D-Wis., warned during Senate debate. "And, of course, with terrorism investigations, that won't be difficult because the terrorists are apparently sponsored or at least supported by foreign governments. So this means the Fourth Amendment rights will be significantly curtailed in many investigations of terrorist acts."
Tien, of the Electronic Frontier Foundation, said he's concerned the secrecy of the court's proceedings leaves no opportunity for public and legal feedback.
But Sporkin, the former CIA general counsel, noted approvingly that some changes will expire in 2005 unless Congress renews them. Sporkin also contends the secret court's new authorities will properly aid the fight against terrorists.
"It clarifies the area, and it should help law enforcement," Sporkin said.
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