Time to open secret court to scrutiny

March 22, 2001|By Cary J. Hansel

THE SENSATIONAL espionage allegations recently levied against FBI agent Robert Hanssen in connection with charges that he spied for the Russians are shocking to Americans. But even more disturbing is the insight provided by such cases into a secret court operating outside of the strictures of the Constitution.

The affidavit filed by the FBI in support of the criminal complaint against Mr. Hanssen relies on information gathered by order of the Foreign Intelligence Surveillance Court. This clandestine court, created by the Foreign Intelligence Surveillance Act of 1978 (FISA), is authorized to order electronic surveillance and physical searches targeting U.S. citizens without meeting constitutional standards.

The court meets in a restricted area behind closed doors in the Justice Department.

Its seven judges hear only applications for search orders made by Justice Department attorneys. None of this court's orders or other records are public.

The Fourth Amendment requires a search warrant supported by probable cause to believe that a crime has been committed before the government may invade our privacy, our homes or our property. But the court orders sophisticated surveillance and physical searches based only on the allegation that an individual is acting on behalf of a foreign power.

The federal government routinely uses this technique to gather information about its citizens absent any allegation that a crime has been committed in violation of the Constitution.

FISA search orders are granted without a host of other protections familiar to Americans.

For example, under a FISA order, there is no requirement that law enforcement officials make their presence known when entering a dwelling that may be occupied. Nor is there an obligation to notify individuals after the fact that they were the target of one of these invasive searches.

Even in cases in which the search has led to the criminal prosecution of the target, the legality of FISA orders may be reviewed by federal courts without the participation of the defendant.

The government does not release to the accused its application for a search order, the order itself or any of the evidence gathered. Without such information, it is impossible to measure the government's conduct against constitutional standards. This effectively eliminates the defendant's right to due process under the Fifth Amendment and the right to counsel under the Sixth Amendment.

Despite the startling powers of this court, the government has shown little restraint in using its orders to avoid constitutional requirements.

Since 1978, Justice Department figures indicate that more than 11,000 FISA search and surveillance orders have been issued. In 1994, the number of FISA wiretaps was greater than the total number of all wiretaps conducted pursuant to conventional search warrants issued by all other federal courts combined.

Finally, information gathered under the Freedom of Information Act demonstrates that the number of FISA orders has risen nearly every year since the court's creation. In 1999, the last year for which statistics are available, 880 such orders were issued.

In the more than 20 years of its existence, the court has denied only one FISA order. And even this denial came at the request of the government.

Based on a Justice Department brief, the court did refuse to order a physical search at a time when the statute only covered electronic surveillance. The Justice Department then used this refusal to lobby Congress for expanded authority to conduct physical searches under FISA. In 1994, Congress acquiesced and FISA was expanded to include physical searches despite the objections of civil liberties organizations.

And suspected spies are not the only targets.

In the mid-1980s, more than 1,000 political and religious groups were the targets of unwarranted FISA scrutiny for more than two years for what the Senate Select Committee on Intelligence later characterized as the "peaceful political activities of domestic groups." No charges ever were filed as a result of this debacle, known as the CISPES case (the original target of the surveillance was the Committee in Solidarity with the People of El Salvador).

No challenge to FISA has ever reached the Supreme Court although it has been fiercely litigated in lower courts.

The tragic truth is that this final arbiter of our constitutional rights may never hear such a case. In espionage cases in which the use of FISA material is common, plea bargains are the norm. Espionage defendants such as CIA double agent Harold Nicholson and FBI agent Edwin Earl Pitts have pleaded guilty and debriefed the government to avoid the death penalty. Both were convicted and sentenced to prison in 1997.

Moreover, those with the strongest cases for challenging FISA are the innocent people subjected to unconstitutional invasions of their privacy. But these individuals are never told of the surveillance and physical searches conducted against them.

Many would dismiss FISA as a necessary evil to combat espionage. But as Supreme Court Justice Louis D. Brandeis said, "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Perhaps the Hannsen case will finally provide the understanding necessary to combat invasions of our liberties by the well-meaning men of zeal behind the Foreign Intelligence Surveillance Court.

Cary J. Hansel is an attorney with the Greenbelt law firm of Joseph, Greenwald & Laake. He was on a team that represented Harold Nicholson in a challenge to the Federal Intelligence Surveillance Act.

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