A WEEK AGO, an obscure court in the nation's capital rendered a decision that has outraged certain civil libertarian groups and their friends in the commentariat. They protest too much. The decision by the awkwardly named Foreign Intelligence Surveillance Court of Review significantly strengthens the government's ability to prevent terrorism and thus horrific deeds--such as those of September 11, 2001--that destroy life and liberty.
The case involves the Foreign Intelligence Surveillance Act, which was enacted in 1978 and amended last year by the Patriot Act. The surveillance act requires the FBI to gain approval from a judge on a special court--the so-called FISA court--before it undertakes electronic surveillance (such as wiretaps) of a "foreign power" or "an agent of a foreign power."
Earlier this year, the FISA court, while granting an application the particulars of which remain secret, issued an interpretation of the law at odds with that advanced by the Justice Department in the wake of September 11. The department wasted no time in filing an appeal. At issue was the purpose the FBI may assert in seeking judicial sanction for electronic surveillance.
Under the law, the bureau must want to obtain "foreign intelligence information"--information that would help the government protect against foreign threats to the nation's security. But must that be the sole purpose? May the bureau have another purpose as well--criminal prosecution--and, if so, to what extent may that be the purpose of seeking wiretap authority? Indeed, can it be the primary purpose?
Before the Bush presidency, there had long been a tendency within the Justice Department to define "a foreign intelligence purpose" in terms that minimized actual law enforcement. In fact, the department routinely would take down a wiretap if criminal prosecution became the primary purpose of the surveillance. The FISA court adopted the department's procedures as law by effectively deciding that it should approve only those applications for surveillance that didn't have as their primary purpose criminal prosecution of foreign agents.
The review court found that the Justice Department and the FISA court had departed from the law's original meaning (a meaning not importantly changed by the Patriot Act). The review court cited some obviously pertinent parts of the law: "An agent of a foreign power" is someone "who knowingly engages in clandestine intelligence gathering activities . . . [that] involve or may involve a violation of the criminal statutes of the United States" or "knowingly engages in sabotage or international terrorism." And "international terrorism" encompasses "violent acts or acts dangerous to human law that are a violation of the criminal laws of the United States or any state."
All of those crimes may be called "foreign intelligence crimes," said the review court, and FISA clearly contemplates their prosecution. "It is virtually impossible to read the 1978 FISA," the court concluded, "to exclude from its purpose the prosecution of foreign intelligence crime." The government can have that as a purpose. Indeed, as the Justice Department now asserts, prosecution can be the primary purpose. And the reason is one that today is all too obvious. As the court stated, "Arresting and prosecuting terrorist agents . . . for a foreign power may well be the best technique to prevent them from successfully continuing their terrorist . . . activity."
It is an understatement to say the review court's decision has drawn objection. A typical denunciation was offered by The New York Times , which said in an editorial that the decision gives the government "broad new authority . . . to spy on ordinary Americans." That is wrong. The decision didn't expand surveillance authority to any new targets. The targets still must be either a foreign power or an agent of a foreign power. Moreover, it hardly is an "ordinary" American who might become the target of any surveillance but an American whom the government has probable cause to believe is "knowingly engaged in" or "prepar[ing]" to engage in "international terrorism" for or on behalf of a foreign power.
The review court's decision will facilitate what the Patriot Act contemplates: that intelligence and law enforcement officials won't have to remain strangers but can speak among themselves, coordinate their efforts as necessary and decide how best to proceed against foreign powers or their agents. The Justice Department's war on terrorism now can proceed as it should--in a way that fully utilizes its investigative resources.
Terry Eastland is publisher of The Weekly Standard.