From the Future of Freedom Foundation website –
BUSH’S WIRETAP CRIMES AND THE FISA FARCE
by James Bovard
March 1, 2006
President Bush proudly announced last December that he is violating federal law. He declared that in 2002 he had ordered the National Security Agency to begin conducting warrantless wiretaps and email intercepts on Americans. He asserted that the wiretaps would continue, regardless of the law.
Bush claims that he must ignore the law because the secret federal court created to authorize such wiretaps moves too slowly to protect U.S. national security. Amazingly, his claim has been treated with respect by much of the nation’s media. Much of the media groveled at his claim the same way that the special court grovels to federal agencies.
In 1978, responding to scandals about political spying on Americans in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA created a new “court” to oversee federal surveillance of foreign agents within the United States.
The FISA court may be the biggest bunch of lapdogs in the federal government, even worse than the Fourth Circuit Court of Appeals. The court approved almost every one of the 15,000 search-warrant requests the feds submitted between 1978 and 2002, and continues to approve more than 99 percent of requests.
FISA provides a judicial process only in the sense that the room where the political appointees convene is called a “court.” As national security expert James Bamford observed, “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.”
This speeds matters up and minimizes procedural delays.
Congress set a very low standard for FISA search warrants. In federal criminal investigations, the government must show probable cause that a person is involved in criminal activity before it is permitted to impose a wiretap. Under FISA, the government need show only that a person is a suspected agent of a foreign power or terrorist organization.
When FISA authorizes surveillance, the feds switch on all the turbos. In a 2002 decision, the Foreign Intelligence Surveillance Court noted that after it grants a surveillance request, “the FBI will be authorized to conduct, simultaneously, telephone, microphone, cell phone, e-mail and computer surveillance of the U.S. person target’s home, workplace and vehicles. Similar breadth is accorded the FBI in physical searches of the target’s residence, office, vehicles, computer, safe deposit box and U.S. mails where supported by probable cause.”
Federal agencies can submit retroactive search-warrant requests up to 72 hours after they begin surveilling someone. In 2002, for instance, Attorney General John Ashcroft personally issued more than 170 emergency domestic spying warrants permitting agents to carry out wiretaps and to search homes and offices for up to 72 hours before the feds requested a search warrant from the FISA court. Ashcroft used such powers almost a hundred times as often as attorneys general did before 9/11.
After 9/11, the Justice Department vigorously lobbied for Congress to revise FISA to permit it to be used for spying on Americans with little or no relation to foreign powers or terrorist plots. Ashcroft claimed that the reform was needed because FISA had impeded efforts to track terrorists. The dispute was not over whether foreign agents should be tracked: no one in Congress was opposed to that. The issue was whether the feds could launch massive surveillance operations against a U.S. citizen on the pretext of fighting terrorism, even though there was no evidence of the citizen’s criminal wrongdoing. Congress acquiesced to Ashcroft’s demands.
Federal incompetence and Moussaoui
The USA PATRIOT Act changed the law to make it far easier to use FISA search warrants against Americans. During the PATRIOT Act mini-deliberations, the Justice Department claimed that the FISA restrictions had fatally delayed its efforts to secure a search warrant for Zacarias Moussaoui, the suspected “20th hijacker,” who was arrested in Minnesota on August 16, 2001. But, as a 2003 Senate Judiciary Committee report noted, the FBI had sufficient information to get a FISA wiretap before 9/11 but failed to do so because “key FBI personnel responsible for protecting our country against terrorism did not understand the law.” FBI agents in Minneapolis could also have easily gotten a regular search warrant from a federal judge — if they had not been hogtied by FBI headquarters.
FBI agents in Minneapolis asked FBI headquarters for permission to request a search warrant from a federal judge in Minnesota. FBI headquarters refused permission, instead insisting that the Minnesota agents file a FISA search request — which had to be handled by “experts” (who turned out to be nitwits) at FBI headquarters. FBI headquarters agents believed that, before a FISA wiretap could be granted, Moussaoui had to be linked to an organization that the U.S. government formally labeled as “terrorist.”
But that was not the case. Eleanor Hill, the staff director for the Joint Intelligence Committee investigation into pre-9/11 failures, observed, “The lesson of Moussaoui was that F.B.I. headquarters was telling the field office the wrong advice.”
A 9/11 commission staff report concluded, “A maximum U.S. effort to investigate Moussaoui could conceivably have unearthed his connections to the Hamburg cell [of 9/11 hijackers]. The publicity about the threat also might have disrupted the plot.”
Commission chairman Thomas Kean commented, “Everything had to go right for [the hijackers]. Had they felt that one of them had been discovered, there is evidence it would have been delayed.”
But the FBI blew the Moussaoui investigation, perhaps costing thousands of Americans their lives. The Moussaoui debacle was typical of how the feds botched FISA cases. A 2003 Senate report noted, “In the time leading up to the 9/11 attacks, the FBI and DOJ had not devoted sufficient resources to implementing the FISA, so that long delays both crippled enforcement efforts and demoralized line agents.”
The 9/11 commission staff reported, “Many FBI agents also told us that the process for getting FISA packages approved at FBI Headquarters and the Department of Justice was incredibly lengthy and inefficient. Several FBI agents added that, prior to 9/11, FISA-derived intelligence information was not fully exploited but was collected primarily to justify continuing the surveillance.”
Besides, the intercepts often languished unused: “The FBI did not have a sufficient number of translators proficient in Arabic and other languages useful in counterterrorism investigations, resulting in a significant backlog of untranslated FISA intercepts by early 2001.”
FISA and the PATRIOT Act
The expansion of FISA-authorized surveillance in the PATRIOT Act was one of the clearest examples of rewarding federal incompetence and misconduct with greater power. In September 2000, the Justice Department notified the Foreign Intelligence Surveillance Court (FISC) that the FBI had made at least 75 false representations to the court about wiretaps. The court was so enraged that one senior FBI counter-terrorism official was forbidden to ever appear again before the court. A few months later, the Justice Department notified the court of another rash of false representations about how closely prosecutors were involved with FISA wiretaps. The Justice Department did not notify any member of Congress of its FISA-related misconduct, even though Congress has a statutory right and duty of oversight.
A few months after the PATRIOT Act was signed, Ashcroft proposed new regulations to “allow FISA to be used primarily for a law enforcement purpose.” The FISC judges unanimously rejected his power grab as contrary to federal law.
The Justice Department refused to provide senators with a copy of the FISC decision that rejected Ashcroft’s bid. Though the decision was a blunt rejection of his attempt to use FISA to unleash federal prosecutors to spy on Americans, the Justice Department believed that no one in Congress was entitled to a copy of the decision of the secret court.
The senators eventually got a copy of the decision directly from the court and released it to the public in August 2002. Ashcroft appealed the decision to the U.S. Foreign Intelligence Surveillance Court of Review — a special court that exists to hear cases in which the government loses in its first swing at a wiretap. The judges of this court (which had never met before) were picked by Supreme Court Chief Justice William Rehnquist, a jurist renowned for his minimalist interpretation of the Fourth Amendment.
The FISA appeals court met in secret and only the Justice Department was permitted to argue its side. Steve Aftergood, editor of the Federation of American Scientists’ Secrecy News, commented that the transcript of the hearing (released months after the fact) showed that “the judges generally assumed a servile posture toward the executive branch, even consulting the Justice Department on how to handle its critics.”
The FISA appeals court, in a November 2002 decision, unleashed the Justice Department and gave Ashcroft everything he wanted. He proclaimed that its decision “revolutionizes our ability to investigate terrorists and prosecute terrorist acts.”
The FISA appeals court decision encourages federal agents to seek FISA warrants even in cases where the links to terrorism or terrorist activity are very doubtful. American Civil Liberties Union lawyer Ann Beeson observed that the FISA appeals court decision “suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants.” Miami Attorney Neal Sonnett, chairman of an American Bar Association panel on terrorism law, observed that FISA “has now turned into a de facto domestic intelligence act. The line was blurred with FISA for a long time. And when [Congress] passed the PATRIOT Act, they wiped it out completely.”
Unfortunately, Americans are unlikely to learn how this domestic intelligence operation actually functions. Sen. Patrick Leahy (D-Vt.) proposed a bill entitled the Domestic Surveillance Oversight Act that would require that the Justice Department report the “aggregate number of FISA wiretaps and other surveillance measures directed specifically against Americans each year.” Leahy also sought to compel the Justice Department to reveal to Congress the secret rules by which the secret court operated. Because of staunch Justice Department opposition, Leahy’s measure was not enacted.
Breaking the law
Even though the FISA court is often a farce, providing only a façade of judicial procedure, any restriction on domestic spying was too much for the Bush administration. Or perhaps Bush believes that being obliged to request retroactive search warrants tarnishes his imperial majesty. It remains to be seen whether Congress or federal courts will hold the president liable for proclaiming that he is above the law.
Yet, despite the back-flipping bias of the FISA court, Bush would not bother seeking warrants for wiretaps of American citizens. He took a swing at critics shortly after he announced he was entitled to tap calls. Speaking after he had visited wounded soldiers in San Antonio, he declared, “The NSA program is one that listens to a few numbers called from the outside of the United States of known al-Qaeda or affiliated people.”
Except that the program also listens to calls from inside the United States to abroad. And, in some cases, it has wiretapped calls exclusively within the United States. And as for the notion “known al-Qaeda or affiliated people” — what is the Bush team’s definition of “affiliated”? Does it require something aside from being a Muslim? Newsweek reported that the warrantless program tapped 500 people a day.
The president was not content with being able to totally stack the deck: instead, he resented the indignity of being required to deal with the courts and to tacitly concede that the federal government does not have an unlimited right to surveil Americans.
Former White House counsel John Dean observed, “There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons.” Dean suggested that Bush left Tricky Dick in the dust: “Nixon’s illegal surveillance was limited; Bush’s, it is developing, may be extraordinarily broad in scope.”
The response of the American people and the American legal and political system to Bush’s warrantless wiretaps will be a bellwether for the future of American liberty.
This article originally appeared in the March 2006 edition of Freedom Daily.
ILLEGAL SURVEILLANCE: A REAL SECURITY THREAT
by James Bovard
February 27, 2006
Americans seem to have forgotten why the Founding Fathers prohibited government from spying on them. Public opinion polls show that a rising percentage of Americans approve of the warrantless National Security Agency wiretaps of Americans that Bush ordered.
But such blind faith in government simply ignores the lessons of U.S. history. When the feds have unleashed themselves in the past, many innocent Americans’ lives were devastated.
During the 1960s and 1970s, the FBI carried out thousands of Counter Intelligence Program (COINTELPRO) operations, often combining illegal surveillance with efforts to subvert any opposition to the government. Covert FBI efforts sought to incite street warfare between violent groups, wreck marriages, portray innocent people as government informants, sic the IRS on citizens, and cripple or destroy left-wing, black, communist, or other organizations.
The FBI inflicted its wrath on speakers, teachers, and writers. A 1976 Senate report noted hundreds of COINTELPRO operations aimed “to get university and high-school teachers fired; to prevent targets from speaking on campus; to stop chapters of target groups from being formed; to prevent the distribution of books, newspapers, or periodicals; to disrupt news conferences; to disrupt peaceful demonstrations.”
The FBI smeared anyone they disapproved of, from Martin Luther King on down. In 1968 the FBI ordered field offices to gather information illustrating the “scurrilous and depraved nature of many of the characters, activities, habits, and living conditions representative of New Left adherents.” FBI headquarters commanded all FBI agents, “Every avenue of possible embarrassment must be vigorously and enthusiastically explored.”
Many Americans have shrugged off the recent controversy over illegal wiretaps because they assume that the government would never be concerned with people like themselves. But the FBI continually expanded its enemies list. Nixon aide Tom Charles Huston testified to Congress about COINTELPRO’s tendency “to move from the kid with a bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate. And you just keep going down the line.”
Boundless federal spying on Americans fundamentally changes the relation of the government to the people. The FBI’s efforts struck fear not only in average Americans but also in the members of Congress, who were supposed to oversee and check the FBI’s uses of its power. The House majority leader, Hale Boggs, explained in 1971, “Freedom of speech, freedom of thought, freedom of action for men in public life can be compromised quite as effectively by the fear of surveillance as by the fact of surveillance.”
Other federal agencies also trampled citizens’ privacy, rights, and lives during the late 1960s and early 1970s. The IRS used COINTELPRO leads to launch audits against thousands of suspected political enemies of the Nixon administration. The U.S. Army set up its own surveillance program, creating files on 100,000 Americans and targeting domestic organizations such as the Young Americans for Freedom, the John Birch Society, and the Anti-Defamation League of B’nai B’rith.
Many of these operations — like the current NSA wiretapping — scorned the Bill of Rights. The Fourth Amendment protects Americans against “unreasonable searches and seizures” and requires that government agents have a warrant based on probable cause issued by a magistrate “particularly describing the place to be searched, and the persons or things to be seized” before intruding. The purpose of the Fourth Amendment was to prevent government officials from having “dictatorial power over the streets” and elsewhere — to restrain the arbitrary power of officials vested with the coercive power of the state.
Federal Judge Gerhard Gesell, in a 1974 ruling on illegal Nixon administration searches, observed, “The American Revolution was sparked in part by the complaints of the colonists against the issuance of writs of assistance, pursuant to which the king’s revenue officers conducted unrestricted, indiscriminate searches of persons and homes to uncover contraband.” Unfortunately, the revolutionary spirit now animating Washington is fighting to replace the right to privacy with the right to intrude.
If Americans permit their rulers to intercept their phone calls and email messages, then is there any abuse that people will not accept from Washington? Does the fact that someone works for the government automatically entitled him to know what his neighbors are saying and thinking? If Americans permit the feds to exempt themselves from the law, then the only freedom left in this country will be freedom to obey and applaud politicians, no matter what they say or do.
Illegal wiretaps will pave the way for other government crimes. The more information government gathers on people, the more power it will have over them. The more expansive and secretive government intrusions become, the easier it becomes for government to rule by fear.