The Court That Wields the Wiretap

Meeting in a windowless, bug-proof chamber deep inside the U.S. Justice Department, a secretive U.S. court wields extraordinary power to approve government requests to listen in on citizens’ phone calls or to break into their homes to seize evidence.

The court’s seven judges just can’t seem to say no. Since it was established in 1978, the court has approved thousands of government wiretap and warrant requests--and denied only one.

And it’s all done in proceedings so classified that even those Americans who are targeted for surveillance have no right to know about it, much less challenge it.

Now, following the Sept. 11 terrorist attacks, the Bush administration is asking Congress to extend the reach of this little-understood court, whose specialty is overseeing the government’s surveillance of spies, terrorists and others who serve as agents of foreign powers.

But the proposal threatens to upset a delicate balance between protecting national security and spying on Americans that was achieved in the post-Watergate legislation that created the court.

The 1978 Foreign Intelligence Surveillance Act, or FISA, passed in response to the Nixon administration’s abuse of its intelligence-gathering powers to spy on its political enemies, was intended to distinguish between the government’s need to gather intelligence about foreign powers and its efforts to battle crime at home.

The law established a special federal court where the government could get permission to spy on terrorists, espionage agents and others suspected of working for foreign powers. The government used it to catch CIA spy Aldrich H. Ames and investigate the 1993 World Trade Center bombing.

The Bush administration says the attacks earlier this month tragically demonstrated the need to enhance the court’s reach.

“Law enforcement needs a strengthened and streamlined ability for our intelligence-gathering abilities to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations,” Atty. Gen. John Ashcroft told Congress this week.

One of the most controversial proposals in Ashcroft’s package of antiterrorism legislation would allow the government to use the court for other types of investigations, including criminal cases that are not chiefly related to gathering foreign intelligence.

But would such a revision allow the government to use the law to pursue cases that do not affect national security, thereby dodging constitutional protections against surveillance ordinarily enjoyed by individuals?

“It’s a slippery slope,” said Morton Halperin, a former State Department policy advisor who helped write the surveillance law while working as a lobbyist at the American Civil Liberties Union. “The law is supposed to be used for intelligence, not for criminal investigations.”

Because surveillance court wiretaps and warrants must clear a lower legal hurdle than criminal ones, Halperin worries that the FBI might be tempted to use it as an “end run” around the 4th Amendment, which restricts surveillance of U.S. citizens in criminal investigations.

The low-profile court, whose seven active and semi-retired judges are selected by the chief justice of the Supreme Court, has probably been working overtime amid the massive investigation into the attacks on the World Trade Center and the Pentagon.

Last year, the court granted more than 1,000 wiretaps and search warrants, double the number of a decade ago, according to the Center for Democracy and Technology, citing Justice Department figures. Today, surveillance court warrants are nearly as numerous as wiretaps issued for all criminal inquiries combined, including drugs, gambling and organized crime.

On the one occasion that the court turned down a government warrant request, it was because the request fell outside the court’s jurisdiction, according to David Sobel, attorney for the Electronic Privacy Information Center.

The Justice Department says the

minuscule disapproval rate reflects self-restraint by the department. “The only applications that get out of the department have already been scrutinized and scrubbed,” said Eric Holder, the Clinton administration’s deputy attorney general.

Critics say the recent surge in warrants suggests that they are already being used for purposes beyond intelligence-gathering.

“[The surveillance court] is designed to deal with espionage and terrorism, but there are always concerns that it is being used for other crimes, such as drug conspiracies,” said Jonathan Turley, a law professor at George Washington University who observed FISA proceedings in the 1980s while working for the National Security Agency.

But proving misuse is virtually impossible, Turley said, because the proceedings are never disclosed.

A request to the court begins at an intelligence or national security agency, but the FBI is responsible for implementing the program. The Justice Department must sign off on every application, which can run as long as 40 to 50 pages.

Though it’s called a court, the process is less like a trial and more like an administrative hearing. There is no court reporter, and few written records are kept. The only witnesses are government employees; there is no adversarial process.

Unlike wiretaps issued under criminal law, surveillance court applications do not require a showing that a crime has probably occurred. Instead, the government must demonstrate only that the targeted individual is likely to be an agent of a foreign government or power.

“That definition can leave the government a lot of room,” Halperin said, noting that some Vietnam War protesters were labeled as foreign agents to justify government surveillance in the 1960s and early ‘70s.

The secrecy and authority of the court is unique within the U.S. judicial system, experts say.

Under criminal law, government agents must present search warrants to property owners in advance, and they must eventually disclose wiretaps. Under FISA, by contrast, the court has the power to allow government agents to break into a home, seize or copy evidence and leave without ever disclosing the search. The courts have upheld such powers as necessary to protect the national security.

“But because this is being done in America, the courts wanted to make sure it was being done for intelligence purposes and not as a way for law enforcement to get around the 4th Amendment,” said Juliette Kayyem, a Harvard professor who served on last year’s National Commission on Terrorism.

FISA may now be used only when foreign intelligence gathering is “the” purpose of the investigation. The Justice Department wants to change the language so that intelligence gathering may be only “a” purpose or “a significant” purpose.

Legal experts say that would open the door to FISA warrants in a variety of criminal investigations, as long as intelligence gathering was one component.

The Justice Department is also seeking to make it easier to obtain lists of numbers dialed to and from a particular telephone, as well as business records, education records and financial records. Its proposal would also remove legal barriers that prevent criminal investigators from passing along information and tips that would be helpful to intelligence agencies.

Lawmakers say they are eager to help in the battle against terrorism. But some are concerned that too much tinkering could spell the surveillance law’s downfall in the federal courts. Congress has already rejected Ashcroft’s call to approve his proposals by this week, indicating it will take a more cautious approach.

“The expansion of FISA is a good idea,” said Sen. John Edwards (D-N.C.), a member of the Senate Intelligence Committee. “But we are going to have to make sure we are doing it within the limits of the Constitution.”