A Court With No Windows

Two weeks ago, a secret court that hardly anyone even knew existed expanded the government’s power to wiretap Americans and others. The ruling was immediately hailed by Atty. Gen. John Ashcroft as a victory in the war on terrorism.

But the court’s decision also raised a number of disturbing questions.

Not least among them is whether the new rules will really help or actually hinder the effort to track down and penetrate terrorist cells in the United States. And constitutional experts have expressed concern that the decision chips away further at the 4th Amendment’s protections against unreasonable searches and seizures.

During the Cold War, there was a continuing struggle at home between liberty and security. Amid the climate of fear of communism, the CIA opened first-class mail, drugged unwitting Americans and spied on anti-Vietnam War protesters. The FBI, for its part, conducted “black bag” jobs -- illegal break-ins at the offices and homes of left-wing targets.

In the wake of 9/11, terrorism has supplanted communism as the enemy, but the tension between liberty and security remains essentially the same. The roundup of hundreds of suspects, their names kept secret, the designation of some as “enemy combatants,” the U.S. prison camp at Guantanamo, the now-abandoned TIPS plan to create a nation of informers -- all are 21st century manifestations of a familiar battleground.

The wiretap ruling, the latest salvo in this broader struggle, came from an unexpected source, the three-member Foreign Intelligence Surveillance Court of Review. The decision was the first handed down in the court’s 24-year history, which explains why even most intelligence officials here were unaware of the court’s existence.

Somewhat better known, but also operating in complete secrecy, is the Foreign Intelligence Surveillance Court. Both courts were created by Congress in 1978 by the Foreign Intelligence Surveillance Act (FISA).

When the FBI seeks to wiretap or search the home or office of a suspected spy or terrorist, it presents evidence to the Justice Department that the target is believed to be “an agent of a foreign power.” If the department’s lawyers agree, the request is forwarded to the FISA court, made up of 11 federal judges who meet periodically on the sixth floor of the Justice Department. The FISA court has reportedly never turned down a request for a wiretap or physical search.

If, however, the FBI is investigating a criminal suspect -- a drug dealer or organized-crime figure, for example -- it goes into a regular federal court, under Title III of a 1968 law, to apply for a wiretap warrant, which may be issued if the judge finds “probable cause” that the target is engaged in criminal activity.

The big difference is that under the Foreign Intelligence Surveillance Act, the FBI and the Justice Department need only to persuade the secret court that the target is “an agent of a foreign power,” not that he or she is engaged in a crime. In the wake of 9/11, Congress passed the USA Patriot Act that amended the FISA law to allow prosecutors to apply to the secret court so long as collecting foreign intelligence was a “significant purpose” of the wiretap or search.

That opened the way for the criminal division of the Justice Department to go after terrorists using the secret procedures of the FISA court, an expanded power buttressed by the decision of the review court. For years, the fruits of a tap or search under the surveillance act could not be shared with criminal prosecutors. The recent decision said the law never required such a wall between counterspies and criminal prosecutors. As a result, the two groups can collaborate.

At first glance, this might seem to make it easier to nab terrorists. But not everyone agrees. For example, according to John F. Lewis Jr., the former FBI assistant director in charge of the national security division, the court’s ruling could encourage the government to pounce too quickly to arrest terrorist suspects instead of keeping them under surveillance to penetrate their cells.

Back in May, Jose Padilla, a U.S. citizen, was arrested in Chicago as he arrived on a flight from Zurich, Switzerland. Ashcroft, who happened to be in Moscow at the time, announced with great fanfare that the suspect was linked to Al Qaeda and was preparing to detonate a radioactive “dirty bomb” in the U.S.

“When Jose Padilla landed in Chicago,” Lewis said, “the bureau was criticized -- why didn’t we allow him to make his contacts and find out his network?” Lewis thought he knew why. “When there is a problem, no one is going to say, ‘Let’s see where this goes.’ We’re in the business of prevention, rather than follow and see where it takes you. We’re moving too fast, and we’re scared.

“What’s driving this is Congress, and everyone wants to place blame. People in the intelligence community are frightened they will be blamed if someone is not arrested when he might have been. There is this emphasis on nipping something in the bud. We know there are cells here in this country -- I’ve been told that repeatedly -- and we can’t find them.”

The result of the review court’s ruling, Lewis worries, “could be, and probably will be, an adverse impact on intelligence gathering.”

Lewis agrees that there are circumstances where immediate action is required. “But if he’s not lighting his shoes on the aircraft, let’s see where he’s getting his matches.”

Terrorists can cause havoc in a highly industrialized society such as the United States. They can blast airplanes out of the sky, knock over buildings and cause horrific loss of life. Perhaps they can even blow up a nuclear power plant, disable communications networks or create other unimagined disasters. But Osama bin Laden cannot destroy America. We can only do that to ourselves, by gradually abandoning our freedoms in the name of preserving them.

“Perhaps it is a universal truth,” James Madison wrote to Thomas Jefferson in May 1798, “that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.”

The danger from abroad is real. But so is the danger at home.