I don't and won't hear you.....or Jallen or a number of other nuts
The Limits of Trust
Wahsington Post | Editorial
Friday, August 23, 2002; Page A26
SINCE THE SEPT. 11 attacks, the Bush administration has argued that law enforcement and
intelligence agencies can be trusted to wield broad new powers -- both those additional powers voted into
law last year and powers still under consideration. Officials have in many instances brushed aside
suggestions that accountability and openness should accompany these new authorities. And their "trust
us" mantra has largely carried the day as Congress has approved intrusive new powers for the executive
branch. So it is no wonder that the Justice Department did not hasten to produce to Sens. Patrick Leahy,
Charles Grassley and Arlen Specter a copy of an extraordinary May 17 opinion by the seven judges of the
Foreign Intelligence Surveillance Court. The work of this super-secret tribunal, which considers government
applications for search warrants and wiretaps in intelligence matters, almost never sees the light of day -- in
fact, this is the first opinion the full court has published since its creation in 1978. But in this instance, the
judges themselves, responding to a request by the senators, took action to make sure that the senators
and the public saw their unprecedented, unclassified opinion. The opinion, which the three senators
released yesterday, paints a disquieting portrait of the FBI's trustworthiness, or lack thereof, in some of the
most sensitive matters it handles.
The opinion was written in response to a Justice Department proposal to change the rules governing the
relationship between prosecutors chasing criminals and intelligence operatives chasing information. In
criminal cases, prosecutors generally must show probable cause of criminal activity before a judge will
allow them to wiretap or search a suspect. The Foreign Intelligence Surveillance Act (FISA) authorizes
such intrusive surveillance for intelligence purposes with a less rigorous showing. While this material can
end up being used in a criminal case, the lower standard is constitutional only because the statute's
purpose -- and the purpose of the surveillance -- is to gather foreign intelligence. So the FISA judges have
historically been careful to make sure that criminal prosecutors were not directing surveillance under the
law as a way of bypassing the strictures of domestic criminal rules. In the USA Patriot Act, Congress
substantially lowered the wall between intelligence-gathering and crime-fighting; the Justice Department
argued to the court that the new law meant the judges should ease up and stop insisting that prosecutors
not take over intelligence surveillance. The court said no. It cited a variety of legal considerations, but
underlying these was another factor: The judges report that the FBI has not played straight with them over
the role prosecutors have been playing in the process in the past.
In September 2000, the judges recount, the government "came forward to confess error in some 75
FISA applications related to major terrorist attacks directed against the United States." These errors
almost uniformly "involved information sharing and unauthorized disseminations to criminal investigators
and prosecutors." They included an "erroneous statement" by then-FBI Director Louis Freeh and
misrepresentations in the FISA applications of FBI agents concerning "the separation of overlapping
intelligence and criminal investigations." They also included "omissions of material facts from FBI FISA
affidavits relating to a prior relationship between the FBI and a FISA target." Furthermore, the judges
complain that they have yet to receive any explanation of how they came to be misled, despite the fact that
internal investigations have been ongoing "for more than one year."
Attorney General John Ashcroft is not blamed for these transgressions. Most or all of the
misstatements appear to have taken place during the prior administration, and the court notes that the
department and bureau wrote new rules last year to ensure the accuracy of FISA applications. The judges,
moreover, appear to have no complaints about the quality of applications since Sept. 11.But the fact that
dozens of FBI representations to a federal court handling issues of such sensitivity could turn out to be
false raises questions both about current proposals to expand the government's FISA powers and about
other situations in which the government asks judges and the public to accept its actions and statements
on faith. If the FBI can botch 75 affidavits in the famously rigorous FISA process, is it not possible that the
military might have made an error, say, in the spare two-page declaration it is using to justify the indefinite
detention of likely American citizen Yaser Esam Hamdi? And isn't some measure of oversight -- such as
the FISA judges and the senators are providing in this instance -- a healthy antidote?
The government has no experience with losing before the FISA court, which has never turned down a
surveillance request. This opinion, in fact, has produced the first appeal ever of a FISA court action -- and
thus the first case ever heard by a special FISA appeals court that has never previously had to convene.
Whatever happens in that uncharted territory, the FISA court has raised critical questions that Congress
needs to pursue before granting further new powers to the government. Members need to satisfy
themselves that the problems the FISA judges have identified have truly been corrected and that adequate
safeguards of openness and accountability are built into any enhanced surveillance powers.
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