IN THE AFTERMATH OF THE TERRORIST ATTACKS on the World Trade Center and the Pentagon, the Bush administration has proposed a number of legal changes to improve the government's ability to investigate terrorists. The largest number of these changes involve the Foreign Intelligence Surveillance Act, a statute enacted in 1978 that governs the use of clandestine physical searches and wiretaps against spies and terrorists living in the United States. Although the suggested changes to FISA are probably useful, they are only marginal adjustments to a law that is deeply problematic and needs a serious overhaul. In other words, the administration and Congress seem content to fiddle even after New York has burned.
The changes the administration proposes to FISA are designed to bring the law into line with up-to-date technology. In 1978, the communications revolution was still years away; landlines and desk phones were the norm. Today, disposable cell phones and the Internet have transformed how we--and terrorists--communicate. Accordingly, the Justice Department wants to allow the government, for example, to seek a warrant for a "roving" wiretap, applicable to all the phones a given suspect might use; under current law, the FBI must obtain a separate warrant for every line it taps. As Attorney General John Ashcroft has argued, there is no attempt here to change the "underlying" law: "We are not asking the law to expand; just to grow as technology grows."
But it is precisely the underlying law that needs fixing. A bit of history will make this plain.
The
Foreign Intelligence Surveillance Act was enacted in the wake of newspaper headlines and congressional investigations in the mid 1970s detailing indiscriminate domestic eavesdropping by the American intelligence community. Until then, the constitutional presumption was that when it came to wiretaps and the like, presidents were free to collect intelligence as they thought necessary, both abroad and at home. Wiretaps for criminal investigations were different--since the potential consequences for a citizen's life and liberty were different. In criminal cases, the Fourth Amendment's requirement of a warrant and "probable cause" applied.
With the passage of FISA, however, Fourth Amendment protections were extended to electronic surveillance for intelligence purposes. Under the act, selected federal judges sit as members of a FISA court and review, in secret, requests by the attorney general for warrants authorizing searches or wiretaps to collect information about foreign intelligence agents or international terrorists. In making his case for a warrant, an attorney general must set out "a statement of facts and circumstances relied upon . . . to justify his belief that the target is an agent of a foreign power" or "engages . . . in international terrorism." The court may approve the warrant only when "there is probable cause to believe that the target" is an agent or terrorist. Broadly put, wiretaps and the like can no longer be used to collect mere intelligence or be directed against individuals unless the government is already pretty sure its target is an agent or a terrorist.
The difficulty with this standard is that for all practical purposes it means the FBI and the Justice Department have to be convinced that someone is dirty before they seek a warrant. The Bureau, then, uses electronic surveillance not so much to track down a spy or terrorist as to confirm that that is what he is. This helps explain why just over 1,000 requests for electronic surveillance or physical searches were made to the court last year and all were granted: By the time an application reaches the FISA court, so rigorous a level of proof has been reached, and so many bureaucratic hurdles have been cleared, that virtually every request deserves to be granted. Most of these warrants are for the purpose of covering foreign intelligence officers and their places of "business." The rest target only the most obvious candidates.
Val:Y
|
