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Ashcroft Triples Use of Secret FISA Warrants

By Jeralyn, Section Legislation
Posted on Tue Mar 04, 2003 at 11:29:57 PM EST
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The Los Angeles Times Wednesday reports that
"the Justice Department has stepped up use of a secretive process that enables the attorney general to personally authorize electronic surveillance and physical searches of suspected terrorists, spies and other national-security threats without immediate court oversight. Attorney General John Ashcroft told the Senate Judiciary Committee Tuesday that he had authorized more than 170 such "emergency" searches since the Sept. 11 attacks-- more than triple the 47 emergency searches that have been authorized by other attorneys general in the last 20 years.
Ashcroft has been accomplishing this by using FISA (The Foreign Intelligence Security Act of 1978) to get the warrants, instead of going through the federal criminal justice system--where a federal judge must find probable cause of criminal activity for a warrant. Aside from the number of secret wiretap and search applications, Ashcroft is pushing the limits of the FISA statute in other ways.
Since Sept. 11, officials have seized on a provision that allows them to launch emergency searches signed only by the attorney general. The department must still convince the FISA court that the search is justified-- but officials have 72 hours from the time the search is launched, and such requests are almost always granted.
We disagree that the Justice Department must convince the FISA Court that the search is justified. All they have to do is submit an application and make the allegation that one of the purposes for which the warrant is sought is intelligence gathering and that it is non-trivial. As Reporter Vanessa Blum wrote in this Legal Times article
In a scathing opinion made public Aug. 22, the FISA court ... ruling points to more than 70 cases in the late 1990s in which FISA judges were misled about coordination between law enforcement and intelligence agents. ...The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient. "
Ashcroft has claimed he has new powers as a result of changes in the Patriot Act, which changes he interprets as providing that applications for FISA surveillance warrants can have criminal investigative rather than intelligence gathering purposes as their principal goal. This interpretation is contrary to the intent of Congress in passing the Patriot Act as we have previously argued in-depth here. More from Reporter Vanessa Blum :

During the drafting of the Patriot Act, Ashcroft asked for a change that would have downgraded the foreign intelligence requirement under FISA from the "primary purpose" of FISA surveillance to simply "a purpose." Congress compromised by changing the language to "a significant purpose."

"By requiring only a 'significant' purpose to obtain foreign intelligence information, Congress allowed for other purposes, including a purpose to obtain evidence for use in a prosecution to be the 'primary' reason for conducting a search or surveillance," the administration argues in its appeal. (empahsis supplied by us.)

Civil liberties advocates call the Justice Department's position "a bait and switch." "The whole point of that compromise [with Congress] was to deny use of FISA in investigations that were principally law enforcement," says GWU's [Jonathan] Turley. "After agreeing to compromise in congressional proceedings, they went on in secret to implement what was originally refused by Congress."
As we have mentioned above, the FISA Court ruled against Ashcroft in this scathing opinion. The Government appealed. Here is NACDL's amicus brief filed in the appeal. But the secret FISA appeals court, called the FISA Review Court, backed him up. This is a court at which only one side is present--the Justice Department. You can read the transcript of the one-sided hearing here. Here's the crux of what's wrong with the Justice Department's actions according to legal experts in today's L.A. Times article:
Law-enforcement officials are pursuing run-of-the-mill criminal cases under the guise of national security. The trouble... is that defendants' customary Fourth Amendment rights against unreasonable searches don't apply in the FISA courts. Others point to the fact that the number of search warrants obtained by federal investigators in intelligence cases in recent years has started to outstrip the number in criminal cases.
This is all coming about because of the FISA Review Court ruling upholding Ashcroft's new regulations allowing information sharing between the federal prosecutors, the FBI and intelligence groups. Here's our recent take on it (from our February 21st Altercation guest-blog. )
As a result of the FISA review court's ruling and Ashcroft's interpretation of the Patriot Act, information gathered by intelligence agencies under the Foreign Intelligence Security Act of 1978 (FISA) can be shared with law enforcement agencies so long as one of the purposes of the spying is for intelligence gathering purposes. Otherwise, law enforcement, whose duty is to investigate crime, is bound by the Fourth Amendment and strict federal electronic surveillance statutes when it conducts searches. A federal judge oversees the process.

Intelligence agencies are not so bound, because they can proceed under FISA.

The new ruling effectively allows law enforcement to make an end run around the Fourth Amendment. As the ACLU stated after the decision, "As of today the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices."

I continue to have grave concerns about this. So does the American Bar Association, which at their semiannual meeting last week in Seattle, passed a resolution on the issue. The ABA's resolution calls upon Congress to conduct regular oversight over the Justice Department's investigations, including holding public hearings, to ensure that it is not running afoul of the First, Fourth and Fifth Amendments to our Constitution and that there is a legitimate, nontrivial intelligence purpose to the secret surveillance being requested under FISA.

The ABA further wisely recommends that Congress require statistical reporting of the use of secret surveillance, as it does with federal court-ordered wiretaps.
For more on the FISA lower and review court rulings and their connection to the Patriot Act, go here. And here is an in-depth analysis of the original Patriot Act.
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