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Comments on Criminal Issues
August 11, 2007
FISA AND THE PROTECT AMERICA ACT OF 2007
Criminal Defense Lawyers Will Find Evidence Obtained By Secret FISA Warrants Can Be Used In Domestic Criminal Prosecutions
On August 5 President George W. Bush signed into law The Protect America Act of 2007.
“We know that information we have been able to acquire about foreign threats will help us detect and prevent attacks on our homeland,” President Bush said upon signing the controversial legislation. “Mike McConnell, the Director of National Intelligence, has assured me that this bill gives him the most immediate tools he needs to defeat the intentions of our enemies. And so in signing this legislation today, I am heartened to know that his critical work will be strengthened and we will be better armed to prevent attacks in the future.”
Covert intelligence gathering has a sordid post-WWII history in America. In the 1950s and 1960s the CIA was linked to assassinations of foreign leaders and the overthrow of legitimately elected foreign governments. The CIA worked with the mafia, mercenaries, and murderous dictators to pursue its intelligence gathering objectives – all supposedly designed to “protect American interests.”
In the 1960s the FBI under the leadership of the late J. Edgar Hoover conducted domestic intelligence gathering on prominent Americans which was used by the director as “political blackmail” and to satisfy his own prurient, deviant sexual interests. In the 1970s the CIA, during the corrupt “Nixon era,” joined with the FBI in the nasty business of “domestic surveillance” activities of American citizens. Anyone who dared speak against the government, or the “Establishment” as it was commonly referred to then, became a target of government surveillance. Not only were the private lives of many Americans exposed for the wretched purpose of public embarrassment and ridicule but some of the more “radical” antagonists were framed for criminal prosecution while others were assassinated by government agents.
Following the infamous Watergate Scandal, the Nixon resignation, and a litany of other disclosures about government wrongdoing, the United States Congress decided it was time to place some checks and balances on the awesome powers of the presidency. One check was the Foreign Intelligence Surveillance Act of 1978. See: 50 U.S.C. §§ 1801-1811.
Under FISA, the government could obtain court authorization to conduct surveillance upon an ex parte finding that there is probable cause to believe that the target of the electronic surveillance was a foreign power or agent of a foreign power. The government’s application had to contain statements and certifications that the purpose of the surveillance was to obtain foreign intelligence. The government had to assure the court that the information it was seeking could not “reasonably be obtained by normal investigative techniques. See: 50 U.S.C. §§ 1804(a)(7)(B)(C); 1805(a)(3).
While FISA was hailed as “reform” legislation, it was generally not too friendly with the traditional notions of due process of law. For example, the target of government’s surveillance could never challenge the many necessary predicates for issuance of a surveillance warrant because he could never learn what was in the government’s application that secured the warrant. FISA provided that “if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States,” review of any motion to suppress evidence obtained from the FISA surveillance “shall” take place in camera and ex parte. See: 50 U.S.C. § 1806(e).
The term “foreign power” was defined by statute as “a group engaged in international terrorism or activities in preparation therefor” or “a foreign-based political organization, not substantially composed of United States persons.” 50 U.S.C. § 1801 (a) (4)-(5). The case law interpreting this term quickly evolved. For example, a FISA application to conduct electronic surveillance of a “foreign power” (or its “agents”) must contain a statement of reasons why the target of the surveillance is a “foreign power.” United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000). In addition, the application must contain a certification from a high-ranking executive branch official that the information sought is “foreign intelligence information” and that it cannot be obtained by any other means. Id.
The Fourth Circuit added that when the target of the FISA electronic surveillance is a "United States person" as defined by the statute, the FISA court may issue an order authorizing the surveillance only if the FISA judge concludes that there is probable cause to believe that the target of the surveillance is a foreign power (or agent of a foreign power) and the following conditions are satisfied: 1) the proposed minimization procedures are sufficient under the terms of the statute, 2) the required certifications have been made, and 3) the certifications are not clearly erroneous. Id.
In the wake of several international terror attacks, courts held that an international terrorist organization was properly considered a "foreign power" for purposes of exception to the warrant requirement for searches conducted abroad in pursuit of foreign intelligence gathering because they targeted foreign powers or their agents. See: United States v. Bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000).
Following the terrorist attacks on September 11, 2001, Congress amended FISA with the United States of America Patriot Act of 2001. The Seventh Circuit in United States v. Ning Wen, 477 F.3d 896 (7th Cir. 2006) pointed out that “the Foreign Intelligence Surveillance Court of Review has concluded that the amended statute allows domestic use of intercepted evidence as long as a ‘significant’ international objective is in view at the intercept's inception. Sealed Case, 310 F.3d 717 (F.I.S.Ct.Rev.2002). Wen asks us to disagree with that decision and hold that evidence gathered under FISA cannot be used in domestic criminal investigations or prosecutions, even when the ‘domestic’ crime is linked to international espionage, once that international investigation has ‘fizzled out’ (Wen's phrase) and the investigation of domestic crime necessarily assumes primary significance.” Id., at 897 [Emphasis original]. See also: 50 U.S.C. § 1804(a)(7)(B).
The Seventh Circuit rejected Ning Wen’s attempt to undermine Sealed Case. The appeals court explained its position in detail:
The fourth amendment does not supply a better footing for exclusion. FISA requires each intercept to be authorized by a warrant from a federal district judge. See 50 U.S.C. § 1803(a) . This brings into play the rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) , that the exclusionary rule must not be applied to evidence seized on the authority of a warrant, even if the warrant turns out to be defective, unless the affidavit supporting the warrant was false or misleading, or probable cause was so transparently missing that “no reasonably well trained officer [would] rely on the warrant.” Id. at 923, 104 S.Ct. 3405.
At one time it was seriously questioned whether an intercept order is a “warrant” for constitutional purposes, see Telford Taylor, Two Studies in Constitutional Interpretation 79-88 (1969), but characterization was settled in favor of “warrant” status by Dalia v. United States, 441 U.S. 238, 256 n. 18, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). And our in camera review reveals that well-trained officers were entitled to rely on this warrant. The Executive Branch did the right thing in asking for a warrant. Suppose that FISA were the wrong source of authority and that the judge should have turned the request down because the investigation's domestic component overshadowed its international aspect. Then the Executive Branch could have obtained a domestic intercept order under Title III. The evidence narrated in the affidavit establishes probable cause to believe that phone lines were being used to discuss or plan violations of 50 U.S.C. § 1705(b). An error about which court should have issued a warrant, under which statute, does not support exclusion.
The only plausible constitutional objection to the warrant actually issued would be that FISA uses a definition of “probable cause” that does not depend on whether a domestic crime has been committed. Under 50 U.S.C. § 1805(a)(3) , an order may be based on probable cause to believe that the target is an agent of a foreign power and that the conversations to be intercepted concern the agent's dealings with that foreign power; the judge need not find probable cause to believe that the foreign agent probably is violating the law of this nation (although this may be implied by the findings that FISA does require). Id., at 897-98.
Probable cause to engage in surveillance under FISA exists the moment the government believes that a foreign agent is communicating with his controllers outside the nation’s borders. And the Seventh Circuit added that “if, while conducting this surveillance, agents discover evidence of a domestic crime, they may use it to prosecute for that offense. That the agents may have known that they were likely to hear evidence of domestic crime does not make the interception less reasonable than if they were ignorant of this possibility.” Id.. at 898. The appeals court concluded that the only issue was whether the intercept was “adequately justified,” and if so, evidence of domestic offenses is legitimate matters for prosecution. Id., at 899.
The FISA court exhibited from its enactment a willingness to issue surveillance warrants. The court has found “probable cause” to grant more than 19,000 government requests for surveillance warrants and physical searches. But after 9/11 and armed with the “Patriot Act,” the Bush administration did not feel it should have to deal with the “probable cause” requirements of the FISA court. The administration did not believe the court acted swiftly enough to meet its demanding political objective to seek out and identify terrorists, potential terrorists, or anyone affiliated with suspected terrorist activities.
In a December 22, 2005 letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella explained the Bush administration’s attitude about the court: “President [Bush] determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system.”
It was during the early stages of the social and political upheaval which followed 9/11 that the contentious issue of “probable cause” demanded by the FISA court compelled the Bush administration to devise ways to circumvent the court’s requirements. The Department of Justice following 9/11 soon found it increasingly difficult to show “probable cause” that the targets it had selected for electronic surveillance were either engaging in espionage or were part of a terrorist organization. FISA court judge James Robertson quickly became alarmed by the Bush administration’s zeal to find “terrorists” under every nook and cranny in the country. Judge Robertson reportedly told FISA court colleagues that the administration was spying on Americans and using the evidence obtained from these unlawful surveillance activities to show “probable cause” to the FISA court without informing the court about how the evidence had been obtained.
Writing for the “Truthout” website, Jason Leopold in an August 9, 2007 article entitled “White House Long At Odds With FISA Court” explained why the Bush administration lobbied so aggressively for The Protect America Act:
That may explain not only why the Bush administration bypassed the court entirely, but why legislation [The Protect America Act of 2007]written by the White House that was passed by Congress last week stripped the FISA court from the approval process and put oversight into the hands of Gonzales and the Director of National Intelligence, Michael McConnell, without requiring an independent legal review.
Since 2001, the DOJ reports to Congress show the FISA court had modified more wiretap requests from the Bush administration than it had during the four previous presidential administrations combined. Of the 6,000 or so surveillance applications the Bush administration filed with the court since 2001, judges either modified and/or requested more information for 179 of them - 173 between 2003 and 2004 alone. Moreover, the court either rejected or set aside at least half-a-dozen applications for warrants in 2003 and 2004, the first time in history the court issued a rejection, DOJ records show.
Judge Robertson did not wait for the arrival of The Protect America Act. Two years ago he notified U.S. Supreme Court Chief Justice John G. Roberts, Jr. that he was resigning from the FISA court. Judge Robertson’s resignation came shortly after a December 2005 report by The New York Times exposed a “warrantless wiretapping program” authorized by President Bush shortly after 9/11. The highly respected judge simply could not stomach the unilateral decision by the executive branch to spy on Americans believed to have terrorism links without any “probable cause.” Bush and Attorney General Alberto Gonzales defended the spying program that circumvented the FISA court and influenced Robertson’s resignation by saying the court’s warrant approval process was too “cumbersome.”
Leopold provides the backdrop for the Bush administration’s decision to initially mislead the FISA court with illegally obtained evidence to establish probable cause for surveillance warrants, and, finally, to completely circumvent the court’s authority with The Protect America Act:
The DOJ's attempts to broaden the FBI's spying abilities after 9/11 became a major concern for the FISA court, so that in May 2002 it secretly ordered then Attorney General John Ashcroft to scale back his plans to expand the FBI's investigative powers because it infringed on civil liberties, according to a May 17, 2002 Foreign Intelligence Surveillance Court document.
Ashcroft is credited with breaking down the wall former Attorney General Janet Reno had erected in the mid-1990s that separated intelligence-gathering investigations and criminal probes to safeguard against unnecessary invasion of privacy. Federal investigators were incensed by Reno's plan, which said that intelligence agents cannot share information with criminal prosecutors, who have to meet higher legal standards to be granted warrants to conduct wiretaps and searches.
In March 2002, Ashcroft presented a plan to the FISA court that would allow criminal prosecutors to participate in intelligence operations in the fight against terrorism. The May 17, 2002 surveillance court ruling reined Ashcroft in, and said he overstepped his authority by loosening the rules governing intelligence gathering. Specifically, the court said Ashcroft's plans "are not reasonably designed" to safeguard privacy rights.
"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 document says.
The Senate Judiciary Committee also had concerns, according to a February 2003 report the panel issued. The committee met privately with Ashcroft and other DOJ officials after President Bush signed the Patriot Act into law on October 26, 2001. That's when Ashcroft had started to press Congress to make additional changes to FISA requirements, including changing the definition of "foreign power" to include "individual, non-U.S. persons engaged in international terrorism."
"DOJ explained that this proposal was to address the threat posed by a single foreign terrorist without an obvious tie to another person, group, or state overseas. Yet, when asked to 'provide this Committee with information about specific cases that support your claim to need such broad new powers,' DOJ was silent in its response and named no specific cases showing such a need, nor did it say that it could provide such specificity even in a classified setting," the Senate Judiciary Committee report states.
"In short, DOJ sought more power but was either unwilling or unable to provide an example as to why," the report added.
The Senate committee’s report urged federal law enforcement authorities under the Bush administration to continue to pursue its requests from the FISA court because the court provides what the committee said was an “important check against potential abuse in the investigative process.” The committee pointed out that attempts to circumvent the court “effectively puts the court out of business” and “puts the current subpoena authority of the court in the hands of the investigators.”
The Bush administration, however, was not impressed with the Senate committee’s suggestions. The following year the White House tried to pressure former Attorney General John Ashcroft to authorize its so-called Terrorist Surveillance Program (TSP) – a program that effectively allowed the White House to bypass the FISA court. According to testimony last May by the former Number 2 man at the Department of Justice, James Comey, Ashcroft refused to succumb to the White House pressure. It can reasonably be assumed that as the Attorney General of the United States Ashcroft was mindful of the prior reluctance of the FISA court to summarily issue surveillance warrants, as well as the political concerns from the Senate Intelligence Committee about the Bush administration’s surveillance activities, and did not want to be a party to any Nixon-era like unauthorized covert domestic spying activities. Comey told Congress that the then White House counsel Alberto Gonzales and former White House chief of staff Andrew Card went to Ashcroft’s hospital bed late at night and, according to Leopold, “tried to coerce a barely conscious” Ashcroft to approve the covert spying program. Leopold set the scene the scene based on Comey’s Congressional testimony:
Ashcroft was in intensive care at the time, hospitalized with pancreatitis, but, according to Comey, Ashcroft was able to rebut the arguments made by Gonzales and refused to sign the authorization. Comey testified Ashcroft had not recertified the program earlier because he had reservations about its legality. Comey assumed control of Ashcroft's duties as attorney general after Ashcroft was hospitalized. Under federal law, the spy program was supposed to be recertified by the DOJ every 45 days.
Despite the DOJ's refusal to recertify the program, the White House continued to spy on Americans it says were communicating with terrorists for at least three weeks in March 2004, in violation of the law and continued to pressure Congress to legalize its end-run around the FISA court.
With The Protect America Act of 2007 the Bush administration now has authority independent of the FISA court to conduct its beloved “surveillance activities.” Following the president’s signature on the legislative enactment the White House issued a “fact sheet” that listed the four ways the new act “modernizes” the 1978 FISA legislation:
- The Act permits our intelligence professionals to more effectively collect foreign intelligence information on targets in foreign lands without first receiving court approval.
- The Act provides a role for the FISA court in reviewing the procedures the intelligence community uses to ensure that surveillance efforts target persons located overseas.
- The Act provides for the FISA court to direct third parties to assist the intelligence community in its collection efforts.
- The Act protects third parties from private lawsuits arising from assistance they provide the government.
There is simply no empirical evidence that The Protect America Act of 2007 will be used responsibly to detect real terrorist threats emanating from abroad. Based on past experience not only with this administration but with Nixon and pre-Nixon administrations, the “third parties” the government plans to use will be rogues engaged in all sorts of illegal activities. And while the FISA court may maintain some limited reviewing role in the surveillance process, the White House has clearly circumvented the longstanding constitutional concerns of the court on the issue of “probable cause” with this new “protect America” legislation.
In a recent The New York Times op-ed piece, law professors Jeff Goldsmith and Neal Katyal proposed what they called a “bipartisan measure” that Congress create a “Terrorists Court.” The law professors wrote that “nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts.” Explaining their proposal, the professors said “the two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.”
Writing in a “guest column” for the JURIST, University of Toledo College of law professor Benjamin Davis reacted indignantly to the Goldsmith/Katyal proposal: “What a sad day! I am amazed! Law professors who are preventive detention advocates. A National Security Court! Have things gone this far in this country that people are really mulling seriously the merits of a preventive detention regime? Is the hysteria this crazy?”
The tragic truth is that the “terrorist” hysteria has become borderline political insanity. In the aftermath of 9/11, Geneva convention mandates, the “Great Writ” of habeas corpus, the FISA court, and sacred traditional notions of due process of law lay shattered on the battlefield in the ever-expanding “war on terror.” Preventive detention is an inevitable consequence. After all the states of Kansas and Washington have already embraced laws approved by the U.S. Supreme Court that authorize the “preventive detention” of sex offenders determined to pose a “threat to society” upon completion of their criminal sentences. So in this “crazy” world of real and imagined “terrorists threats,” it only follows that law professors like Goldsmith and Katyal would propose Congressional legislation establishing “preventive detention” facilities for “enemy combatants” and a “National Security Court” to deal with them.
The tragedy is that terms like “The Patriot Act” and The Protect America Act” and “preventive detention” and the “National Security Court” have been created to support both the knowing and unsuspected efforts of many in this country to undermine our sacred constitutional system of government.
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