Thank goodness THEY have a feeling for what is right and WRONG with Ashcroft and the interior terror
Secret Court Decision Silently Overrules Provision of PATRIOT Act
by Jennifer Van Bergen
t r u t h o u t | Analysis
Sunday, 25 August, 2002
The Senate Judiciary Committee last week released a decision by a secret court that determines
issues arising under the Foreign Intelligence Surveillance Act (FISA). This court is known as the FISA
court. This is the first time since the FISA court was established that it has released an opinion. Major
news outlets covered the event, but these stories -- missing the core issue -- focused largely on the court's
mention of 75 cases in which the FBI and DOJ gave erroneous information to the court.
According to the New York Times, DOJ officials deflected the court's criticism about the 75 cases,
declaring that the criticism was directed mostly toward the FBI under the Clinton administration. This
deflection is a ruse, a red herring. It is not the central issue.
While it is certainly significant that government employees gave the FISA court wrong information, what
is more important is what Ashcroft is now asking the FISA court - and what the court declined - to permit.
The real core issue decided in the FISA court's opinion is whether (in the DOJ's words) the DOJ may
now use FISA "primarily for a law enforcement purpose, so long as a significant foreign intelligence
purpose remains."
This interpretation is a monumental distortion of FISA's meaning. It shows, furthermore, what the DOJ's
real agenda is: to undermine and subvert the Fourth Amendment. That the FBI and the DOJ have long
asked courts to interpret the FISA this way does not change the meaning of the DOJ's present act. Federal
courts have uniformly ruled against such interpretation.
The DOJ's argument also raises questions about the intentions of those who passed the provision in the
PATRIOT Act that the DOJ is now attempting to use.
Although it is nowhere stated in the FISA court opinion, the provision in question is Section 218 of the
PATRIOT Act. This provision amends a section of FISA which, before the PATRIOT Act, required that in
order for the FISA court to grant a foreign intelligence surveillance order the FBI must certify that "the
purpose for the surveillance is to obtain foreign intelligence information."
The PATRIOT Act changed this section to read: "a significant purpose," thus changing the weight of the
provision in favor of using it in criminal investigations, allowing it to be applied even where the acquisition of
foreign intelligences was NOT the primary purpose for the FISA surveillance. The shift has concerned the
ACLU and other civil rights organizations.
The purpose of FISA, which was enacted in 1978, is to keep foreign intelligence investigations separate
from criminal investigations. Why? Because foreign intelligence investigations are not meant to result in
criminal prosecutions. They are intended merely to gather intelligence about foreign operatives. They are,
therefore, not subject to the 4th Amendment.
Criminal investigations, on the other hand, are meant to lead to criminal prosecutions, and they are
subject to requirements of the United States Constitution, namely the probable cause requirement of the
search and seizure clause of the 4th Amendment. The 4th Amendment protects against unreasonable
searches and seizures without probable cause of criminal activity.
In other words, unless law enforcement has probable cause to believe you are engaged in criminal
activity, it cannot get a warrant from a court. This protects citizens from unreasonable searches and
seizures. It means that law enforcement cannot just come into your home based on, say, a rumor spread
by a nutty neighbor who thinks you should keep your windows cleaner. (This was an actual complaint I
heard made by a tenant to a building manager a few years ago, who was trying to get the manager to evict
her neighbor.)
The protection against unreasonable searches and seizures was considered so important by the
Framers that they put it in the Constitution. One could say that it is a central tenet of our republic. Without
the protection against unreasonable searches and seizures, one could question whether there is a republic,
right wing, left wing, or political bird of any feather. If government can come into your home anytime it likes,
on the basis of the slightest rumor (or even no rumor at all), forget the right to silence, the freedom to
associate, freedom of religion, the right to counsel, and so on. They are all out the window.
Foreign intelligence investigations are not required to satisfy 4th Amendment requirements, because the
information is not intended to be used to bring someone to justice. Intelligence is intended to find out what
our enemies are up to so we can take counter-measures.
Counter-measures exist in the realm of diplomacy, espionage, and meetings between heads of state.
They do not, cannot, exist in open court.
Likewise, the battle over national security does not belong in the courts. This is one reason why the
"national security" argument for secret evidence in criminal trials is bad. If the issue is national security,
why is the government bringing a criminal case? If it is a criminal case, the evidence should not rest on
national security issues. It should rest on clearly defined criminal conduct.
Likewise, in a case brought by a defendant against the government demanding the reasons for his
incarceration (known as a habeas corpus petition), or one brought by others seeking access to hearings or
the release of basic information about who is held and why,1 courts should not be required to decide a
case on the basis of national security. This forces the court to become the mere instrument of the
government, since the judge must then take the DOJ's word as to the weight of the evidence. This is a
breach of the independence of the judiciary.
The FISA court is the one exception. It stands in that no-man's-land between the two worlds of
espionage and criminal law enforcement and acts as protector of each. As the FISA court noted in its
opinion, it has "often recognized the expertise of the government in foreign intelligence collection and
counterintelligence investigations of espionage and international terrorism, and accorded great weight to the
government's interpretation of FISA's standards."
"However," the FISA court continued, "this Court" -- not the DOJ or the FBI -- "is the arbiter of the
FISA's terms and requirements." The court's job, according to the enacting statute, is to determine the
"need of the United States to obtain, produce, and disseminate foreign intelligence information."
In other words, the FISA court is saying, notwithstanding the USA PATRIOT Act's amendments to
FISA, which appear to blur the lines between foreign intelligence investigations and criminal investigations,
the FISA standards remain the same as prior to the PATRIOT Act.
Because of "FISA's preeminent role in preserving our national security, not only in the present national
emergency, but for the long term as a constitutional democracy under the rule of law" and because the
FISA court's entire purpose is to apply the FISA standards, which require the separation of foreign
intelligence from criminal investigation information, the FISA court is saying that FISA - even as amended
by the PATRIOT Act -- cannot be unconstitutionally and undemocratically intended to "be used primarily for
a law enforcement purpose."
The FISA court states that its decision "raises no constitutional questions." It states that its decision
"involves straight-forward application of the FISA" and is "based on traditional statutory construction of the
FISA's provisions." The court does not, therefore, overtly decide that the PATRIOT Act provision which
amended FISA is unconstitutional.
The decision is, nonetheless, a clear ruling against the PATRIOT Act.
CC
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