Big Brother Gets Bigger

by Eric Boehlert

Attorney General John Ashcroft scored a major legal victory on Nov. 18 when a secret appeals court ruled that his Justice Department can spy on Americans -- by wiretapping, searching their homes and reading their e-mail, among other measures -- without first obtaining a warrant showing probable cause for criminal activity. The decision emboldens the government's war on terror at home but also raises fresh concerns about privacy and due process.

Ashcroft immediately praised the decision, saying it "revolutionizes our ability to investigate terrorists and prosecute terrorist acts." He also quickly designated a new FBI unit that will pursue intelligence warrants allowed under the new law. But civil libertarians and defense attorneys warned the ruling will allow the government to freely spy on its citizens, with little or no oversight. "The problem is it applies an across-the-board, presumptive secrecy," says David Cole, a professor of constitutional law at the Georgetown University Law Center in Washington. In an interview Monday, Cole examined the ruling; described the unique, little-known court at its center; and warned that by lowering the standards needed to spy on citizens, it may prove to be a historic erosion of Fourth Amendment protections.

Since 1978, the government has been able to go to a special closed court for permission to spy on a target even without demonstrating probable cause that the person is breaking a law. Permission has been granted only if the primary goal of the investigation is to gather foreign intelligence, not to prosecute people. Under a new provision included in the USA PATRIOT Act and upheld Monday, American citizens targeted in criminal terrorism investigations can now be wiretapped without the government's having to show probable cause.

The ruling brings to light, at least temporarily, the secretive workings of the Foreign Intelligence Surveillance Act, or FISA, court. Created in 1978, the court comprises a rotating panel of 10 judges appointed by Chief Justice William H. Rehnquist. Judges meet every two weeks in a soundproofed room in an undisclosed location to rule on the government's applications. The court's rulings are always secret and the people targeted never know that the court has approved the investigations. FISA warrants do not have to meet the higher standards of probable cause needed for federal warrants in criminal cases. Only once, out of nearly 10,000 requests, has the FISA court rejected an application.

That seemingly cozy relationship was strained two years ago, though, when the government admitted to 75 instances in which errors were made when it sought FISA applications in connection with terrorist investigations. In May of this year, citing that "alarming number of instances" of having been misled, the FISA judges unanimously rejected the Justice Department's attempt to broaden FISA's reach under the PATRIOT Act to allow law enforcement to obtain FISA surveillance warrants for criminal -- not intelligence-gathering -- investigations.

Ashcroft's Justice Department then petitioned the FISA appeals court, which, because the FISA court usually grants the government whatever it wants, had never before been activated. On Monday that three-judge panel ruled in Ashcroft's favor, clearing the way for criminal prosecutors to use broad new authority in battling the war on terrorism.

Cole, who also serves as an attorney with the progressive Center for Constitutional Rights, detailed on Tuesday how the ruling might permanently erode the constitutional provisions that protect Americans against unreasonable searches and seizures.

How significant was this ruling?

It's significant because it holds that the government can conduct secret searches and electronic wiretapping of U.S. persons without probable cause of criminal activity. The bottom line of the Fourth Amendment protection is that before the government can intrude upon your privacy by searching your home or your backpack, or wiretap your phone, it must have probable cause to believe you're engaged in criminal activity.

When FISA was created, probable cause was no longer needed in those cases, correct?

Right. The kind of quid pro quo was, we recognize that in creating areas like foreign intelligence gathering, the government has a legitimate interest in tapping people's phones and searching people's homes; that's counterintelligence. Therefore we will authorize the government to engage in those types of searches without probable cause -- but only where the principal purpose of the investigation is foreign intelligence gathering and not criminal prosecution. Once it became a criminal investigation, [prosecutors] could still get wiretaps, but they had to go through the constitutionally mandated system.

If the government wants to wiretap somebody for foreign intelligence purposes, and as they monitor the information they realize it could lead to criminal prosecutions, the continued wiretap would have to be sanctioned by a criminal warrant?

Yes, and at that point it could be sanctioned, because prosecutors would have developed probable cause that criminal activity is going on.

But now, if the government wants to gather foreign intelligence and they see they have a lot of information that could lead to criminal protection, they can just maintain it under FISA?


Or they could launch the investigation under FISA?

Right. And that's more likely. I think what the lower FISA court was concerned about was that Congress [through the PATRIOT Act] was creating a route that law enforcement could tap people's phones and conduct searches without showing probable cause of a crime. So the court wanted to make sure that route does not become an end run around the Fourth Amendment. And so initially the way you did that was to say the primary purpose of the investigation has to be foreign intelligence. And once the primary purpose becomes criminal, you have to go the criminal route.

But Congress changed that?

Right. What they did in the PATRIOT Act was say, no, that's no longer required. What the lower court said in May was there's still a legitimate concern of criminal investigations using FISA as an end run around the constitutional requirement. Therefore we don't want U.S. attorneys engaged in criminal investigations to be running and directing FISA wiretaps.

But the ruling on Nov. 18, didn't it essentially say to the lower FISA court, you may not like the PATRIOT Act, but it is what it is?

Right, and that it's not appropriate for the lower court to be directing how law enforcement agencies structure themselves.

So it said that the FISA court overstepped its bounds?


Even though that lower court decision was signed off by all 10 FISA judges?

Correct. What's interesting is that it was signed off on by all the judges who have been involved in the nitty-gritty work of authorizing and overseeing FISA.

And they're the ones who've had the 75 misleading applications brought before them?

The irony is that the lower FISA court had never, or only once, turned down a FISA application in its 20-some-odd years. In other words, the government never had any reason to appeal because it won approval every time it went to the FISA court. What the lower court decision in May suggested was they were concerned about some of the abuses that had crept into the system, and that led them to try to rein in the use of this authority. They in turn get overturned by three judges who have never before dealt with FISAs and who have never overseen a single FISA wiretap and who were constituted this one time for this one appeal and will probably never come together again.

Was this ruling a surprise?

I think the May ruling was a surprise. The fact that judges would in any way question or reject the government's assertion of authority, particularly after Sept. 11, was the surprise. But it's hardly surprising now that three Reagan-appointed conservative federal appellate judges have given the government what it wanted in the first place.

Can this decision be appealed?

That's a good question. There's no party on the other side. The government is the only party in this case because the statute only provides for the government to have the right to an appeal [with FISA]. Ordinarily you have a party on the other side and the losing party gets to appeal. Here, the losing party is the American public at large, and they have no have particular standing before the court.

You think this is the final word?

It's very likely to be the final word.

Won't other courts have a chance to rule on it?

If the government uses FISA warrants in criminal investigations, defendants will be able to argue that it's impermissible.

What would be their argument?

In all criminal cases, warrant applications at least initially are one-sided. The government goes in and presents an affidavit to a judge. But what's different is, once the search is conducted under an ordinary search warrant or wiretap, the person is told: "Your house has been searched." That person can then challenge the constitutionality of the search. He can get access to the affidavits that supported the search. Then the court looks at the affidavit and asks if there was sufficient information to justify the warrant and it's litigated.

In the FISA context, by contrast, most people who are subjects of FISA searches never learn that they were subjected to a FISA search.

But they will if their case becomes a criminal prosecution now?

They will, but they still get no access to the warrant application. So when the FBI goes in on a criminal investigation for a warrant, they know at some point down the road their statements are going to be tested by a lawyer for the defendant who's going to be questioning the legitimacy. But now with FISA they never have to be questioned.

Theoretically, in a criminal case based on a FISA warrant, would the judge ever see the FISA warrant?

The judge would see it, but not the defense attorney and not the defendant, which is completely new to the criminal court.