Tuesday, November 6, 2001

It meets for a few days each month in a windowless room in the Justice Department basement, a highly secretive court that can shape how the government spies on some U.S. residents.
Already viewed warily by civil libertarians, the court will grow more powerful as a result of the tougher anti-terrorism laws President Bush signed into law last month.
The court considers requests, almost always from the FBI, for warrants and searches related to foreign-intelligence operations inside the United States. Little is known of the proceedings except that the warrants typically allow the government to listen in on suspected spies or terrorists.
Civil liberties and privacy watchdogs say the court established by the Foreign Intelligence Surveillance Act will now be free to approve more wiretapping against a wider range of people. The government may never have to disclose who has been targeted, or why.
“FISA already had just the minimal trappings of a judicial process,” said David Sobel, a lawyer with the Electronic Privacy Information Center. The anti-terrorism measures “chip away at the very minimal procedures that currently exist.”
Established by Congress in 1978, the court was intended to police the kind of surveillance abuse seen in the Nixon era, by requiring the FBI to go before a judge to get a national security-related warrant. Previously, the Justice Department or the White House could order such surveillance directly.
“It acts as a brake on people acting imprudently,” former Attorney General Richard Thornburgh said.
Yale international law professor Ruth Wedgwood agreed the court imposes discipline on the Justice Department.
“There is a careful process of scrutiny before the warrants are approved,” she said, “and I have met intelligence agents who have had their warrants rejected” as too thin to pass the court’s scrutiny.
Civil libertarians have always been uneasy with the law and the court, because FISA allows the government to do things in the name of national security that would be illegal or unconstitutional if done as part of a regular criminal investigation.
Under FISA, domestic surveillance can begin once the government has shown that a suspect is probably a “foreign power or agent of a foreign power.”
Law enforcement must meet a higher standard probable cause that a crime was committed to get an ordinary criminal warrant for wiretapping or other electronic intrusion.
The different standards were permitted because secret FISA surveillance is supposed to help protect the country rather than gather information that could be used against a particular person in court.
The new anti-terror laws effectively eliminate that distinction, said Kate Martin, director of the Center for National Security Studies.
FISA used to allow secret domestic surveillance if “the purpose” was foreign intelligence. The Bush administration wanted the wording changed to “a purpose,” and Congress settled on “a significant purpose.”
“They are going to say every [warrant application] has that as a significant purpose,” said Miss Martin. That would mean the government could ask for a FISA warrant when it would not have been able to get a criminal warrant, she said, adding, “We think it renders the statute unconstitutional.”
The court will expand from seven federal judges to 11 under the new laws. The judges sit in panels of three, and the larger pool will make it easier for the court to meet more often. All the judges are chosen by Chief Justice William H. Rehnquist.

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