Government Avoids 4th Amendment Requirement of Probable Cause
In 1970 it was discovered by a gentleman named Christopher H. Pyle that the U.S. Army Intelligence Command had 1500 commissioned officers whose duty it was to spy on any known protest or demonstration in this country involving 20 or more people. While Pyle’s eventual revelations about this stunning information captured the attention of the Chairman of the Senate Subcommittee on Constitutional Rights, Sen. Sam Ervin, the great Watergate truth-seeking champion, had little authority to do anything about the “spying on Americans” scandal.
But in 1975 a younger, and lesser known, Democratic senator from Idaho named Frank Church put the Pyle information to good use. In the wake of President Richard Nixon’s resignation for the massive criminal corruption associated with Watergate, Senator Church used a December 1974 report by New York Times columnist Seymour Hersh concerning widespread CIA warrantless surveillance to bring Pyle’s information before the senator’s U.S. Select Committee to Study Governmental Operations with Respect to Intelligence Activities.
Thanks to courageous Americans like Pyle, Hersh, and Sens. Church and Ervin, the people of this country learned that its executive branch of government had been violating their civil and constitutional rights at such a mind-numbing scale that many lost their faith in “honest government.” It was out of the ashes of this governmental lawlessness that the Foreign Intelligence Surveillance Act (“FISA”) was signed into law by former President Jimmy Carter in 1978. A central feature of the Act was the creation of the Foreign Intelligence Surveillance Court(“FISA Court”) which allows the executive branch to secretly obtain warrants for electronic surveillance but only with strict judicial review (18 USC 36 Foreign Intelligence Surveillance)
The eleven members (originally the number was seven) of the FISA Court are designated by the Chief Justice of the United States. These judges have the authority to entertain ex parteapplications for electronic surveillance “for the purpose of obtaining foreign intelligence information.” FISA defines “foreign intelligence information” as:
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against –
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotages, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary –
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
In order to issue a FISA warrant for electronic surveillance, a FISA Court judge must believe there is “probable cause” that the subject of the surveillance is a “foreign power or an agent of a foreign power” and that the place where the surveillance will occur are “being used, or … about to be used by a foreign power or an agent of a foreign power.”
In the wake of the September 11, 2001 terror attacks on the Twin Towers in New York City, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“PATRIOT Act”). This legislation substantially changed the nature of FISA, which had been enacted as a “reform” measure to control lawlessness in executive branch initiated intelligence-gathering, by granting unto the executive branch greater powers to conduct surveillance against not only suspected “terrorists” but against anyone who may ever spoken the word terrorism.
Former President Bill Clinton unfortunately paved the way for the abuses FISA would experience in the wake of 9/11. His administration was confronted with the far-reaching and scandalous revelations in 1994 that CIA agent Aldrich Ames was a Russian spy responsible for scores of deaths of CIA undercover operatives. FISA at the time only authorized electronic surveillance. Since FISA did not authorize “physical searches” in such cases, the former president usurped the law by ordering then Attorney General Janet Reno to conduct warrantless searches of Ames’ residence. The Administration argued it didn’t need a warrant because the suspect was believed to be the agent of a foreign power. Faced with intense criticism from civil libertarians, President Clinton eventually agreed to a revision of FISA authorizing the Justice Department to obtain warrants from the FISA Court, rather than a traditional federal district court, before conducting physical searches. The end result, according to James Bovard, is that the FISA Court became “a bunch of lapdogs in the federal government,” approving virtually all (99%) the 15,000 requests for search warrants between 1978 and 2002.
National security expert James Bamford put it this way: “Like a modern Star Chamber, the FISA court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The eleven judges (increased from seven by the Patriot Act) hear only the government’s side.”
President George W. Bush’s “war on terror” proved to be a perfect opening for the executive branch to once again entrench itself, more often than not lawlessly, in the intelligence gathering process. For example, Bovard said that in 2002 alone former Attorney General John Ashcroft “personally issued” more than 170 “domestic spying warrants” allowing federal agents to “carry out wiretaps and search homes and offices for as many as 72 hours before the feds requested a search warrant from the FISA court.” Ashcroft used this power “almost a 100 times as often as attorneys general did before 9/11.” The FISA Court itself would say in a 2002 decision that this power allows the FBI to simultaneously conduct telephone, microphone, cell phone, e-mail and computer surveillance of the target person’s home, workplace and vehicle. Attorney General Ashcroft praised the FISA Court as revolutionizing “our ability to investigate terrorists and prosecute terrorist acts.”
Following a New York Times report, President Bush in December 2005 proudly conceded to the nation that in 2002 he had personally ordered the National Security Agency to conduct warrantless wiretaps and email intercepts on everyday Americans. He vowed to continue the practice regardless of the FISA provisions prohibiting such executive actions. In 2008, in the middle of an election season which prominently featured the potential of “terror threats,”Congress overhauled FISA to bring it more line with Bush’s secret policies. In effect, the executive branch, not the FISA Court, now controls both the “checks and balances” of the sensitive intelligence gathering process in this country.
But not everyone is prepared to fall in line with lawless wiretapping/email interceptions policies practiced under the Bush administration. Last April U.S. District Court Judge Vaughn Walker ruled in favor of the now defunct Al-Haramain Islamic Foundation, Inc. by concluding that the Bush administration’s warrantless foreign email interceptions of Al-Haramain’s employees violated the provisions of FISA (Al-Haramain v. Obama). Judge Walker’s ruling was an unmistakable indictment of the NSA warrantless wiretapping program ordered by Bush.
But Judge Walker’s ruling is a rare victory in the federal courts who have demonstrated a proclivity to kowtow to the government demands associated with the “war on terror.” This was evidenced last month by a Second Circuit Court of Appeals decision in United States v. Hassan Abu-Jihaad. Abu-Jihaad’s birth name was Paul Raphael Hall, He changed his name to Abu-Jihaad, which means the “Father of Jihad.” In January 1998 he enlisted in the United States Navy. At the time the Navy was aware the United States had become a target of terrorists. This stark reality was evidenced by the 1993 World Trade Center bombing, the 1995 discovery of plots to bomb American passenger planes en route from Asia, and the 1996 bombing of the Khobar Towers in Saudi Arabia. The Navy, nonetheless, gave Abu-Jihaad security clearance to receive classified information between 1998 and 2002, despite his “Father of Jihad” name.
Sometime in August 2000Abu-Jihaad developed an email relationship with the London-based “Azzam Publications,” an organization that reportedly glorified jihad martyrdom and the violence of Islamic mujahedeen around the world (Azzam Publications has been shut down and has been accused of being part of a conspiracy to provide material support to people engaged in terrorism). Abu-Jihaad allegedly conveyed to Azzam, or persons associated with them, classified information about Navy ship movements to the Persian Gulf in 2001.
In December 2003 British authorities were searching the residence of Babar Admad, an individual with alleged ties to Azzam who has been in a British prison awaiting extradition to the U.S since 2004, and discovered a computer disk which, according to the Second Circuit, “contained a three-page unsigned document describing the anticipated Spring 2001 deployment of ten U.S. Navy ships carrying 15,000 sailors and Marines from the Pacific coast of the United States to the Persian Gulf.” The document concluded by highlighting the vulnerabilities of the naval battle group. A subsequent investigation determined that this particular document had been created by an Azzam employee named Syed Talha Ahsan, a British citizen.
The Government case against Abu-Jihaad as the person responsible for conveying this classified information to Azzam was premised on three points: first, he had access to the information (one of 40 sailors with access); second, he had a relationship with Azzam (an exchange of 11 emails between August 2000 and September 2001); and, third, he made implicit admissions in a 2006 recorded conversation that he had conveyed classified information during his service in the Navy.
Abu-Jihaad was living in Phoenix, Arizona in 2006. He had four telephone calls with a friend and another person who turned out a confidential informant. During these conversations Abu-Jihaad expressed concerned about “tapped” telephones; protecting himself from a Kafir (“infidel”); instructed the persons to whom he was talking not to refer to associates by their real names; discussed martyrdom operations; and referred to military intelligence as “meals” (“hot meals” current information, “cold meals” out of date information),
Abu-Jihaad was subsequently indicted for providing material support to terrorists, 18 U.S.C. Sec. 2339A, and with disclosing classified information to unauthorized persons under the Espionage Act, 18 U.S.C. Sec. 793(d). A jury found him guilty of both charges in March 2008 but in March 2009 the trial judge granted Abu-Jihaad’s motion for judgment of acquittal on the providing material support to terrorist count and then sentenced him to ten years on the disclosing the classified information count.
On appeal Abu-Jihaad challenged the 2006 recorded telephone conversations which had been intercepted under an authorized FISA warrant. His challenged was premised on the theory that (1) FISA violated the Fourth Amendment to the United States Constitution; and (2) the FISA requirements were not adhered to in his case. The Second Circuit rejected both challenges, deferring to two FISA Review Court decisions rendered in 2002 and 2008 respectively which rejected challenges similar to the ones raised by Abu-Jihaad: In re Sealed Case and In re FISA Section 105B Directives. Interestingly, besides these two cases, the FISA Review Court, which was set up to review FISA Court determinations, has only convened one other time to hear FISA-related matters emanating from the FISA Court; hardly confidence inspiring oversight.
When FISA was enacted in 1978, the sole purpose of a warrant request by a high-ranking member of the executive branch was strictly to obtain “foreign intelligence information”—nothing more. But the 2001 Patriot Act amendment relaxed this narrow requirement by allowing the FISA Court to issue a warrant if the executive branch certifies that procuring foreign intelligence information is a “significant purpose” of the requested surveillance. Abu-Jihaad argued that this 2001 amendment essentially undermined the constitutional intent and purpose of FISA: the sole acquisition of foreign intelligence information. He argued that the Government can now use FISA to conduct “criminal investigations,” as it did in his case, without demonstrating the Fourth Amendment probable cause requisite that “an individual is committing, has committed, or is about to commit a particular offense” and that “particular communications concerning that offense will be obtained” through electronic surveillance.
We agree. We recently posted a piece about how the “war on terror” has significantly, and quite dangerously, blurred the lines between intelligence gathering and crime fighting. The Second Circuit offered up this flimsy reasoning for abdicating its constitutional responsibility to protect the longstanding “probable cause” requirement in criminal investigations: “… the Fourth Amendment warrant requirement demands a showing of probable cause reasonable to the purpose being pursued. Thus, the identification of the purpose is necessary to assess the reasonableness of the probable cause standards at issue. Where multiple purposes are significant, however, the Fourth Amendment does not require the government to identify a purpose or limit its ability to secure a warrant to the satisfaction of the standards for that purpose. Rather, the government may secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith. Thus, we identify no constitutional defects in FISA’s certification requirement of ‘a significant’ rather than a primary ‘purpose … to obtain foreign intelligence information.”
Abu-Jihaad in 2006, when the FISA Court authorized “electronic surveillance” of him, was not involved with either “foreign agents” or a “foreign power.” He was an ex-sailor who had exchanged 11 emails with an organization that supposedly had terrorism ties. He certainly was not providing “material support to terrorists” in 2006 as evidenced by the trial judge acquitting him on that charge. He was talking to a friend named Derrick Shareef and a government informant with only “implicit” references that he had given classified information to suspected terrorists. The informant conveyed this information to his handlers. At that point the FBI had sufficient probable cause to apply for wiretapping warrant from a federal judge or magistrate. But the FBI did not have any legitimate basis for turning what was no more than a criminal investigation into a “foreign intelligence” case by securing a FISA warrant.
It is cases like the Abu-Jihaad case, and the Second Circuit’s cavalier response to it, that has us concerned about our government’s comingling of criminal investigations with intelligence-gathering investigations. Legitimate foreign intelligence gathering requires much lesser standards of probable cause for surveillance than internal criminal investigations. And it is maintaining distinct constitutional lines between these two divergent governmental objectives that protects our private lives from lawless governmental intrusion and spying so prevalent under the Republican administrations of Richard M. Nixon, George W. Bush, and to a lesser extent, under the Democratic administration of Bill Clinton.
As has been said many times by those fighting for our civil liberties and the integrity of our great Constitution, if the terrorist have forced us to voluntarily give up our fundamental constitutional protections and liberties as free people, then they have won a might battle indeed.
We do not like “government spooks” in our private lives. We had enough of that from the CIA in the 1960s and early 1970s; and we detest even more those cops like the late J. Edgar Hoover who used unlawfully obtained surveillance information to maintain his corrupt hold on power for decades. Unfortunately, the spying days of the panty-wearing Hoover, the rogue electronic surveillance of our intelligence agencies against Americans and the “communists brain-washing of our children” of those like Joseph McCarthy are back in vogue—and too few courts seem willing to halt this cavalier trampling upon the civil and constitutional rights of law-abiding citizens spawned by the overzealous fear-mongering “war on terror” advocates similar to those of bygone eras.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair