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Articles
Following Sept. 11, Congress scrambled to enact legislation to prevent future terrorism. In the six weeks lawmakers gave themselves to enact the USA Patriot Act, they had just enough time to rubber-stamp John Ashcroft's Christmas wish list with scant scrutiny of the legal necessity or constitutionality of his myriad requests. That flapping noise we are now hearing about secret courts is the sound of these chickens coming home to roost. The Patriot Act amended FISA so that foreign intelligence gathering need no longer be the "primary" purpose of the surveillance, so long as it's a "significant purpose." In other words, thanks to the Patriot Act, the primary purpose for a warrantless FISA wiretap or search can now be evidence collection for criminal prosecution or the fact that someone just looks kind of creepy.
United States
Secret Government
Invasion of Civil
Liberties? (How to rape the Constitution)
And that has some civil
libertarians concerned. A broadened FISA would open the door for law enforcement to
conduct secret searches and spy on Americans without the scrutiny of an open court. They
wonder whether the debate over the proposal has been thorough enough.
"The seriousness of the issue demands that whatever is done be effective and focused
without unnecessarily infringing civil liberties," said Jim Dempsey, deputy director
for the Center of Democracy and Technology, whose executive director testified before
Congress last week on the issue.
"Unfortunately, there has been little time for deliberation," he added.
Expanding the Search Limits
In normal criminal investigations, requests for wiretaps and search warrants are approved
by a judge only after probable cause has been shown that a criminal act may have been
committed or is being planned. The target of a search warrant must also be notified of the
search.
But the FISA court is different. Law enforcement needs only to identify the target of a
warrant as being a foreign power or its agent, U.S. citizen or not. The searches the court
approves are of the "black bag" type, meaning the target does'nt have to be home
or even aware that the search is being conducted.
All documents pertaining to
the cases brought before the court are classified, and defendants are not able to
challenge the evidence presented against them.
Since its debut in 1978, the FISA court has denied only one of the roughly 10,000 warrant
applications sought by the feds. The court was already getting busy before Sept. 11.
Yearly requests for warrants doubled from 509 in 1993 to more than 1,000 in 2000.
An
expanded FISA "should be used as a means to allow necessary prosecution to get
through with due speed," said constitutional law expert Mark Fitzgibbons. "The
sunset provision should not be used, however, as a short-term means to violate any due
process guarantees or civil liberties." Whether or not the courts will
preserve the wall between reasonable searches and unreasonable ones, whether they care
about the wall between foreign surveillance and domestic prosecution remains to be seen.
The courts have tended to defer to the executive branch in wartime. But the courts
also know why they are in business. And "secret courts" by their very nature
undermine what's best about the judiciary: They do away with openness, legitimacy,
published opinions, judges with names, and adversarial proceedings. Without open courts,
you might just as well just flip a coin.
The number
of FISA warrants issued would explode under legislation proposed by Attorney General John
Ashcroft. He wants the new rules to allow speedier arrests of suspected terrorists. The
same fast-track warrants would more than likely be tougher to get in a criminal court,
Ashcroft says, costing authorities valuable time in their investigations.
But legal experts are dubious about expanding FISA's scope.
"The legislation would allow government to use FISA for other than foreign
intelligence gathering," said Jonathan Turley, a law professor at George Washington
University, who in the 1980's brought cases before the FISA court on behalf of the
National Security Agency.
"Under FISA, police do not have to establish a probable cause that a crime has been
committed in terms of the legal standard, FISA operates under a lowered standard. There
are obviously concerns," he said.
Invasion of Civil
Liberties? (How to rape the Constitution)
And that has some civil
libertarians concerned. A broadened FISA would open the door for law enforcement to
conduct secret searches and spy on Americans without the scrutiny of an open court. They
wonder whether the debate over the proposal has been thorough enough.
"The seriousness of the issue demands that whatever is done be effective and focused without unnecessarily infringing civil liberties," said Jim Dempsey, deputy director for the Center of Democracy and Technology, whose executive director testified before Congress last week on the issue.
"Unfortunately, there has been little time for deliberation," he added.
Expanding the Search Limits
In normal criminal investigations, requests for wiretaps and search warrants are approved by a judge only after probable cause has been shown that a criminal act may have been committed or is being planned. The target of a search warrant must also be notified of the search.
But the FISA court is different. Law enforcement needs only to identify the target of a warrant as being a foreign power or its agent, U.S. citizen or not. The searches the court approves are of the "black bag" type, meaning the target does'nt have to be home or even aware that the search is being conducted.
"The seriousness of the issue demands that whatever is done be effective and focused without unnecessarily infringing civil liberties," said Jim Dempsey, deputy director for the Center of Democracy and Technology, whose executive director testified before Congress last week on the issue.
"Unfortunately, there has been little time for deliberation," he added.
Expanding the Search Limits
In normal criminal investigations, requests for wiretaps and search warrants are approved by a judge only after probable cause has been shown that a criminal act may have been committed or is being planned. The target of a search warrant must also be notified of the search.
But the FISA court is different. Law enforcement needs only to identify the target of a warrant as being a foreign power or its agent, U.S. citizen or not. The searches the court approves are of the "black bag" type, meaning the target does'nt have to be home or even aware that the search is being conducted.
All documents pertaining to
the cases brought before the court are classified, and defendants are not able to
challenge the evidence presented against them.
Since its debut in 1978, the FISA court has denied only one of the roughly 10,000 warrant applications sought by the feds. The court was already getting busy before Sept. 11. Yearly requests for warrants doubled from 509 in 1993 to more than 1,000 in 2000.
Since its debut in 1978, the FISA court has denied only one of the roughly 10,000 warrant applications sought by the feds. The court was already getting busy before Sept. 11. Yearly requests for warrants doubled from 509 in 1993 to more than 1,000 in 2000.
An
expanded FISA "should be used as a means to allow necessary prosecution to get
through with due speed," said constitutional law expert Mark Fitzgibbons. "The
sunset provision should not be used, however, as a short-term means to violate any due
process guarantees or civil liberties." Whether or not the courts will
preserve the wall between reasonable searches and unreasonable ones, whether they care
about the wall between foreign surveillance and domestic prosecution remains to be seen.
The courts have tended to defer to the executive branch in wartime. But the courts
also know why they are in business. And "secret courts" by their very nature
undermine what's best about the judiciary: They do away with openness, legitimacy,
published opinions, judges with names, and adversarial proceedings. Without open courts,
you might just as well just flip a coin.
The number
of FISA warrants issued would explode under legislation proposed by Attorney General John
Ashcroft. He wants the new rules to allow speedier arrests of suspected terrorists. The
same fast-track warrants would more than likely be tougher to get in a criminal court,
Ashcroft says, costing authorities valuable time in their investigations.
But legal experts are dubious about expanding FISA's scope.
"The legislation would allow government to use FISA for other than foreign intelligence gathering," said Jonathan Turley, a law professor at George Washington University, who in the 1980's brought cases before the FISA court on behalf of the National Security Agency.
"Under FISA, police do not have to establish a probable cause that a crime has been committed in terms of the legal standard, FISA operates under a lowered standard. There are obviously concerns," he said.
But legal experts are dubious about expanding FISA's scope.
"The legislation would allow government to use FISA for other than foreign intelligence gathering," said Jonathan Turley, a law professor at George Washington University, who in the 1980's brought cases before the FISA court on behalf of the National Security Agency.
"Under FISA, police do not have to establish a probable cause that a crime has been committed in terms of the legal standard, FISA operates under a lowered standard. There are obviously concerns," he said.