April 25, 2004


9/11: SAVE SOME BLAME FOR COURTS THAT CREATED THE 'WALL': Let's take a break from the Clinton-Bush blame game for long enough to revisit how the wall between intelligence agents and criminal investigators was built and why it was torn down. (Stuart Taylor Jr., 4/21/04, Atlantic)

The so-called wall originated in a succession of federal court decisions interpreting—or misinterpreting, it now appears—the Foreign Intelligence Surveillance Act of 1978, and seeking to avoid any conflict between FISA and the Fourth Amendment. Presidents had previously claimed inherent authority to use warrantless wiretaps in investigations of suspected foreign-intelligence agents and terrorists. FISA required the Justice Department to seek special judicial warrants. At the same time, the law made such warrants somewhat easier to obtain and longer-lasting than ordinary criminal warrants.

A FISA warrant application must show "probable cause" to believe that the target is a foreign "agent," defined to include U.S. citizens only if there is evidence implicating them in "sabotage or international terrorism," which are crimes; activities "in preparation therefor"; or "clandestine intelligence-gathering activities [that] involve or may involve a [criminal] violation." Ordinary criminal warrants require probable cause that actual criminal activity has occurred. FISA also created the highly secretive FISA court, which now has 11 judges, to handle Justice Department applications for FISA warrants; and the three-judge Foreign Intelligence Surveillance Court of Review, known as the FISA review court, to hear any government appeals.

In the 1980s and 1990s, several other federal courts around the country, and eventually the FISA court, ruled that the government could not seek FISA wiretaps primarily for the purpose of prosecution, even for crimes of espionage or terrorism. The Justice Department adopted this interpretation in the 1980s. The court decisions presented Justice with a dilemma: While FISA's stated purpose was to "protect against" foreign spies, the most direct way to do that—locking them up on criminal charges—risked judicial rebuke. And even agents whose primary purpose in seeking a warrant was not prosecution could be mistakenly accused of having concealed such a purpose if they later came across evidence of crime and turned it over to prosecutors.

It was to guide investigators through this judicially created maze, and to avoid running afoul of the courts, that in 1995, Gorelick developed highly detailed curbs on contacts between intelligence and law enforcement officials. These instructions, portions of which the FISA court incorporated into some of its rulings, were enforced quite strictly by the career Justice Department officials who handled FISA warrant applications. Thus had the wall become a formidable barrier to coordination between intelligence and law enforcement officials.

[I]n November 2002, the FISA review court tore down both the wall and the legal analyses on which it was based.

The review court ruled that the government can seek FISA warrants regardless of whether its primary purpose is gathering pure intelligence or obtaining evidence for criminal prosecutions, as long as the alleged crimes are related to terrorism or espionage. The court acknowledged that this holding was not clearly supported by the Supreme Court's Fourth Amendment precedents, some of which suggest that any search or wiretap for which the primary purpose is prosecution must be based on probable cause to suspect that an actual crime has been committed. But the court concluded, quite persuasively, that using FISA's somewhat lower standard in cases that may "involve the most serious threat our country faces" was "reasonable" within the meaning of the Fourth Amendment.

Some of the same people who have deplored the lack of coordination between terrorism investigators were quick to attack the FISA review court's decision as a "misguided" grant to the government of "broad new authority ... to wiretap phone calls, intercept mail, and spy on Internet use of ordinary Americans," as The New York Times editorialized. The American Civil Liberties Union added that it would "affect every American's privacy rights."

Such are the alarums of those who have not learned from the past. Let's hope they are not condemned to repeat it.

"Liberties" aren't much use if you have no physical security.

Posted by Orrin Judd at April 25, 2004 9:26 AM

A few weeks after 9/11, I saw an editorial cartoon depicting a man standing by a large office window, with a large jet heading right for him. He was holding a telephone, with the caption "I'd like to speak to a civil liberties attorney right now!"

That is why the Patriot Act was passed with near unanimity in Congress, and why the public just shakes their head when the Democrats attack it now.

The families who blame Bush should sue Gorelick - they will get more satisfaction.

Posted by: jim hamlen at April 26, 2004 6:47 AM