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From: Paul Wolf
Subject: FISA Court Decision
Date: Mon, 02 Sep 2002 12:04:00 -0400
Organization: Posted via Supernews, http://www.supernews.com
1. Foreign Intelligence Surveillance Court Opens Up
2. Secret Court Decision Silently Overrules Provision of PATRIOT Act
3. Balanced vs. Unbalanced Law Enforcement
The May 2002 FISA court decision on the sharing of information gathered
for foreign intelligence purposes with criminal investigators highlights
the discriminatory and "unbalanced" effects of putting political and
religious groups under surveillance. Under these rules, any evidence
of a crime detected in an FBI intelligence investigation must be passed
along to the criminal investigative division, which may open its own
While the FISA court was rightly concerned about criminal prosecutors
"taking over" intelligence investigations and making use of the lower
standards for wiretapping, etc., the court did not consider that even
if the criminal investigators don't direct the investigations, the
effect would still be to put a disproportionate amount of law
enforcement pressure on the members of those groups.
An analogy can be found in the political use of the IRS against
dissident groups in the 1960s. Investigating the tax returns of all
the members of a group would, unsurprisingly, uncover tax compliance
problems among a certain number of them. In the terminology of the
IRS, auditing people for non-tax reasons was called "unbalanced"
enforcement of the tax laws.
The discretion to choose which groups to put under surveillance, and
especially the discretion to say who are the members of those groups,
are really the issues here. According to the FISA statute, "foreign
power" includes what we call terrorist organizations, and "agent of
a foreign power" includes anyone working with them.
Does this mean that a person attending a mosque under FBI surveillance
has lost their Fourth Amendment rights? It would seem so. If the FBI
obtains a FISA warrant to put a group under surveillance, any evidence
of a crime will be passed on to criminal investigators. While this
evidence might not be admissable in a criminal trial, the criminal
investigators can open their own investigations and start gathering
evidence that will be admissable. Overall, the effect is to
discriminate against legitimate groups associated with issues or parts
of the world that are also of interest to terrorist organizations.
From: "Aftergood, Steven"
FOREIGN INTELLIGENCE SURVEILLANCE COURT OPENS UP
More information about the legal principles of domestic surveillance
of suspected foreign intelligence and terrorist targets has become
public in the past week than for many years before.
The proximate cause of the new disclosures was a Senate Judiciary
Committee request to the Justice Department for a copy of a secret
court ruling on surveillance practices. The Ashcroft Justice
Department characteristically rebuffed the request.
But Senators Leahy, Specter and Grassley then turned to the famously
secretive Foreign Intelligence Surveillance (FIS) Court, which
authorizes surveillance and searches for counterintelligence and
counterterrorism purposes. Remarkably, the court responded with a
small flood of previously inaccessible documents.
Among them was a May 2002 FIS Court opinion which criticized and
revised the Justice Department's latest procedures for sharing
information between intelligence officials and law enforcement
While Congress had clearly intended to reduce the barriers to such
information sharing, the Court found that the Justice Department
procedures had instead nearly eliminated them. Further, the Court
said the procedures seemed intended to abuse foreign intelligence
surveillance authority for ordinary law enforcement purposes.
"The 2002 procedures appear to be designed to amend the law and
substitute the FISA [i.e. the less demanding intelligence
surveillance standards] for Title III electronic surveillances [i.e.
the more demanding law enforcement standards]. This may be because
the government is unable to meet the substantive requirements of
these law enforcement tools, or because their administrative burdens
are too onerous."
The Court also revealed that false statements had been made by the
FBI in years past on more than 75 occasions in seeking surveillance
See the Court's May 2002 Memorandum Opinion and Order here:
The New York Times today refers to the Justice Department's 2002
procedures that were reviewed by the Court as "secret regulations."
But they are no longer secret, having been released by the Court
last week (through the Senate Judiciary Committee).
See a copy of the March 2002 "Intelligence Sharing Procedures for
Foreign Intelligence and Foreign Counterintelligence Investigations
Conducted by the FBI" here:
On August 21, the Justice Department filed an appeal with the
three-member Foreign Intelligence Surveillance Review Court,
challenging the FIS Court's May ruling.
Far from being cowed by the May decision, the Department's appeal
argues vigorously and rather persuasively that the FIS Court
misinterpreted the requirements of last year's USA Patriot Act.
See the slightly redacted text of the Department's August 21 appeal
Much of the abundant commentary on the new court ruling and the
Justice Department's appeal has been marred by extreme
characterizations, erroneous claims and righteous indignation to
the point that one almost despairs of having a serious conversation
about the important issues involved.
But two critical editorials in the Washington Post have the unusual
virtue of being informed by a reading of the actual documents. See
"The Limits of Trust" (Aug. 23, 26):
Secret Court Decision Silently Overrules Provision of PATRIOT Act
by Jennifer Van Bergen, www.truthout.org Sunday, 25 August, 2002
The Senate Judiciary Committee last week released a decision by
a secret court that determines issues arising under the Foreign
Intelligence Surveillance Act (FISA). This court is known as the
FISA court. This is the first time since the FISA court was
established that it has released an opinion. Major news outlets
covered the event, but these stories -- missing the core issue --
focused largely on the court's mention of 75 cases in which the
FBI and DOJ gave erroneous information to the court.
According to the New York Times, DOJ officials deflected the
court's criticism about the 75 cases, declaring that the criticism
was directed mostly toward the FBI under the Clinton administration.
This deflection is a ruse, a red herring. It is not the central
While it is certainly significant that government employees gave
the FISA court wrong information, what is more important is what
Ashcroft is now asking the FISA court - and what the court declined
- to permit.
The real core issue decided in the FISA court's opinion is whether
(in the DOJ's words) the DOJ may now use FISA "primarily for a law
enforcement purpose, so long as a significant foreign intelligence
This interpretation is a monumental distortion of FISA's meaning.
It shows, furthermore, what the DOJ's real agenda is: to undermine
and subvert the Fourth Amendment. That the FBI and the DOJ have
long asked courts to interpret the FISA this way does not change
the meaning of the DOJ's present act. Federal courts have uniformly
ruled against such interpretation.
The DOJ's argument also raises questions about the intentions of
those who passed the provision in the PATRIOT Act that the DOJ is
now attempting to use.
Although it is nowhere stated in the FISA court opinion, the
provision in question is Section 218 of the PATRIOT Act. This
provision amends a section of FISA which, before the PATRIOT Act,
required that in order for the FISA court to grant a foreign
intelligence surveillance order the FBI must certify that "the
purpose for the surveillance is to obtain foreign intelligence
The PATRIOT Act changed this section to read: "a significant
purpose," thus changing the weight of the provision in favor of
using it in criminal investigations, allowing it to be applied
even where the acquisition of foreign intelligences was NOT the
primary purpose for the FISA surveillance. The shift has concerned
the ACLU and other civil rights organizations.
The purpose of FISA, which was enacted in 1978, is to keep foreign
intelligence investigations separate from criminal investigations.
Why? Because foreign intelligence investigations are not meant to
result in criminal prosecutions. They are intended merely to gather
intelligence about foreign operatives. They are, therefore, not
subject to the 4th Amendment.
Criminal investigations, on the other hand, are meant to lead to
criminal prosecutions, and they are subject to requirements of the
United States Constitution, namely the probable cause requirement
of the search and seizure clause of the 4th Amendment. The 4th
Amendment protects against unreasonable searches and seizures
without probable cause of criminal activity.
In other words, unless law enforcement has probable cause to
believe you are engaged in criminal activity, it cannot get a
warrant from a court. This protects citizens from unreasonable
searches and seizures. It means that law enforcement cannot just
come into your home based on, say, a rumor spread by a nutty
neighbor who thinks you should keep your windows cleaner. (This
was an actual complaint I heard made by a tenant to a building
manager a few years ago, who was trying to get the manager to
evict her neighbor.)
The protection against unreasonable searches and seizures was
considered so important by the Framers that they put it in the
Constitution. One could say that it is a central tenet of our
republic. Without the protection against unreasonable searches
and seizures, one could question whether there is a republic,
right wing, left wing, or political bird of any feather. If
government can come into your home anytime it likes, on the
basis of the slightest rumor (or even no rumor at all), forget
the right to silence, the freedom to associate, freedom of
religion, the right to counsel, and so on. They are all out the
Foreign intelligence investigations are not required to satisfy
4th Amendment requirements, because the information is not
intended to be used to bring someone to justice. Intelligence
is intended to find out what our enemies are up to so we can
Counter-measures exist in the realm of diplomacy, espionage, and
meetings between heads of state. They do not, cannot, exist in
Likewise, the battle over national security does not belong
in the courts. This is one reason why the "national security"
argument for secret evidence in criminal trials is bad. If the
issue is national security, why is the government bringing a
criminal case? If it is a criminal case, the evidence should
not rest on national security issues. It should rest on clearly
defined criminal conduct.
Likewise, in a case brought by a defendant against the government
demanding the reasons for his incarceration (known as a habeas
corpus petition), or one brought by others seeking access to
hearings or the release of basic information about who is held
and why, courts should not be required to decide a case on the
basis of national security. This forces the court to become the
mere instrument of the government, since the judge must then take
the DOJ's word as to the weight of the evidence. This is a breach
of the independence of the judiciary.
The FISA court is the one exception. It stands in that no-man's-land
between the two worlds of espionage and criminal law enforcement and
acts as protector of each. As the FISA court noted in its opinion,
it has "often recognized the expertise of the government in foreign
intelligence collection and counterintelligence investigations of
espionage and international terrorism, and accorded great weight to
the government's interpretation of FISA's standards."
"However," the FISA court continued, "this Court" -- not the DOJ or
the FBI -- "is the arbiter of the FISA's terms and requirements."
The court's job, according to the enacting statute, is to determine
the "need of the United States to obtain, produce, and disseminate
foreign intelligence information."
In other words, the FISA court is saying, notwithstanding the USA
PATRIOT Act's amendments to FISA, which appear to blur the lines
between foreign intelligence investigations and criminal
investigations, the FISA standards remain the same as prior to the
Because of "FISA's preeminent role in preserving our national
security, not only in the present national emergency, but for the
long term as a constitutional democracy under the rule of law"
and because the FISA court's entire purpose is to apply the FISA
standards, which require the separation of foreign intelligence
from criminal investigation information, the FISA court is saying
that FISA - even as amended by the PATRIOT Act -- cannot be
unconstitutionally and undemocratically intended to "be used
primarily for a law enforcement purpose."
The FISA court states that its decision "raises no constitutional
questions." It states that its decision "involves straight-forward
application of the FISA" and is "based on traditional statutory
construction of the FISA's provisions." The court does not,
therefore, overtly decide that the PATRIOT Act provision which
amended FISA is unconstitutional.
The decision is, nonetheless, a clear ruling against the PATRIOT Act.
... on balanced vs unbalanced law enforcement
Excerpts from the Church Committee Reports of 1975-76
The IRS Intelligence Division, with 2,800 special agents trained
to gather financial data, unlimited access to tax returns, and
the power to issue summonses requiring the production of financial
information without probable cause to believe a crime has been
committed, represents a great investigative capability. Because of
this capability, Congress, the Federal Bureau of Investigation,
and even the White House have sought, sometimes successfully, to
direct the efforts of IRS against certain groups or individuals,
many of whom would not have been investigated under normal IRS
The IRS system of organization and control over investigative
activities has not proved compatible with the pursuit of non-tax
objectives. The IRS was decentralized in 1952 in an effort to end
widespread political influence congressional investigators had
discovered. Under this decentralized structure, the intelligence
chief in each of the fifty-eight IRS districts largely controls
and supervises investigations. The essence of decentralization
is heavy reliance upon the professional, independent judgment of
agents at the field level, subject to the setting of general
policy by the National Office. Under these general guidelines,
agents and supervisors in the field apply tax related criteria
in making decisions concerning the identification of targets of
investigations, and the initiation and scope of investigations.
The result has generally been that investigative resources are
applied to particular taxpayers or categories of taxpayers in
proportion to the tax compliance problems they present, based
upon the IRS experience of prior years. This system is generally
known as "balanced tax enforcement."
The use of the IRS for non-tax purposes requires "unbalanced
enforcement," where the target group is selected for reasons
other than the significance of the tax compliance problem it
presents. Unbalanced tax enforcement has given rise to a
combination of elements which have produced abuse: (1) the
subordination of tax criteria to achieve a concentration of
enforcement resources creates an atmosphere within the IRS
which encourages excessive zeal and departure from other
normal criteria of IRS operation; (2) the pursuit of non-tax
objectives through selective tax enforcement by the IRS
Intelligence Division has historically involved the use of
techniques such as paid informants, electronic surveillance,
and undercover agents, all of which are prone to abuse; (3)
because the IRS decentralized organizational structure is
designed to achieve tax objectives and is, by design, resistant
to pressure from above, in order to bring about the desired
imbalance in the enforcement program, the IRS has generally
found it necessary to bypass its normal organizational
structure; (4) in doing so, the IRS has bypassed the normal
administrative mechanisms which check excess and abuse at the
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