Secret U.S. court handed new power to fight terror

But some observers fear for civil liberties

October 29, 2001|By Scott Shane | Scott Shane,SUN STAFF

In the government's all-out campaign against terrorism, it is one of the least-known and most important fronts: a windowless, soundproof, cipher-locked room on the sixth floor of the Department on Justice in Washington.

Inside, the judges of America's secret court, the Foreign Intelligence Surveillance Act Court, rule on requests to tap the phones, bug the rooms and break into the houses of terror suspects on U.S. soil.

With President Bush's signing Friday of sweeping new anti-terror legislation, the secret court's jurisdiction has been widely expanded. Attorney General John Ashcroft said he would order investigators to immediately use the new wiretap powers to track down those responsible for the Sept. 11 and anthrax attacks and to prevent new acts of terror.

With authorities on highest alert, the FBI and the National Security Agency are casting a wide surveillance net, targeting suspicious foreigners in the United States. FISA court warrants are a key tool, because they can be issued on the basis of far less evidence than traditional criminal warrants.

Previously, the secret court could issue warrants only when the collection of foreign intelligence was "the purpose" of the bug or search. The new law allows the court to act when intelligence is "a significant purpose," allowing criminal investigation as a simultaneous goal.

Advocates of the change say it merely updates the original 1978 FISA law to cope with terrorism. Intelligence surveillance often grows into criminal cases, as wiretaps reveal plans for terrorism or other crimes. The new law merely acknowledges that fact, they say.

Stewart A. Baker, a Washington attorney who served as NSA general counsel from 1992 to 1994, says the expanded authority of the FISA court is justified and timely.

"Now there's almost no national security problem that doesn't have a law enforcement aspect," Baker says. "We're all aware there's a foreign terrorist gang operating inside the U.S."

Civil liberties concerns

But the court's new powers, which expire in 2005 if not renewed by Congress, disturb some civil libertarians. They say the change weakens constitutional protections by enabling the FBI to circumvent the requirements for criminal wiretap warrants.

"I'm as afraid of terrorism as the next person," says David Cole, a Georgetown University law professor who opposed the changes. "But if we give up our principles, what are we fighting for?"

Critics such as Cole were already unhappy with the court's absolute secrecy and history of granting virtually all warrant requests the FBI and spy agencies seek. Its scorecard since 1979: 12,178 warrants approved, 1 denied.

Even before the law passed, the FISA court had never been busier. Last year it approved a record 1,005 warrants for eavesdropping and covert entries, twice the number in 1993 and more than double the 479 wiretap warrants issued by federal judges nationwide in all criminal cases. Legal observers say that record will be shattered.

"We're likely to see an explosion in the number of foreign intelligence surveillance authorizations," says David L. Sobel, general counsel for the Electronic Privacy Information Center, a civil liberties group in Washington.

There is no way of knowing for certain what goes on in that sixth-floor chamber. The annual number of warrants applied for and granted is the only record made public. "No one knows very much about the FISA court because it's so secret," says Cole.

The court gets no mention on the U.S. judiciary system's voluminous Web sites. "It's a court that would a lot rather operate, and can operate more efficiently, without a lot of media attention," said David A. Sellers, a spokesman for the Administrative Office of the U.S. Courts. At The Sun's request, however, he did fax a list of the seven FISA court judges. Chief Judge Royce C. Lamberth and three other judges turned down interview requests.

The court's members, appointed to seven-year terms by the chief justice of the Supreme Court, are federal judges who work most of the time in their home states on criminal and civil cases. They come to Washington to sit in FISA court in two-week rotations, working alone to review warrant requests.

Despite its secrecy, the court has surfaced in dozens of important criminal cases, from the World Trade Center bombing of 1993 to the prosecutions of John A. Walker Jr., Aldrich H. Ames and Robert P. Hanssen for spying.

One 1998 espionage case, in which a married couple were charged with spying for East Germany, revealed the intensive surveillance possible with the court's sanction.

The couple, Theresa Squillicote and Kurt Strand, were the targets of telephone taps, an electronic bug in their bedroom, two clandestine searches of their house and a download of files from their home computer. Agents even listened in while they talked to their psychotherapists, according to documents made public when their lawyers unsuccessfully challenged the FISA statute.

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