- The Washington Times - Tuesday, August 27, 2002

In a publicly released Memorandum Opinion of the United States Foreign Intelligence Surveillance Court (FISA Court) filed last May 17, the Bush administration won an Austerlitzlike victory in its war on global terrorism.
The seven-member court unanimously opened the floodgates to an unprecedented sharing of foreign intelligence information concerning American citizens with criminal investigators and prosecutors; only a crumb of separation remains.
Conflating the two functions bolsters criminal law enforcement. It profits by gaining access to evidence obtained under the flaccid Fourth Amendment threshold established in the Foreign Intelligence Surveillance Act for initiating national security electronic surveillances and physical searches. Probable cause to suspect criminal activity is the customary constitutional standard for police intrusions on privacy.
The FISA Court's decision has been errantly portrayed in the media as a tart rebuke to Attorney General John Ashcroft's law enforcement aggressiveness in the wake of September 11. The opinion noted, en passant, that the government, in September 2000, confessed to material misstatements and omissions of material facts in 75 FISA applications.
The misleading representations included: an erroneous statement by the FBI director that a FISA target was not a criminal suspect; erroneous statements in FISA affidavits of FBI agents concerning a purported wall between intelligence and criminal investigations, and the unauthorized sharing of FISA information with FBI criminal investigators and assistant United States attorneys; and, omissions of material facts from FBI FISA affidavits concealing that a FISA target had been a subject of a prior criminal investigation. In March 2001, the government similarly confessed to several instances of noncompliance with a promised wall of separation between foreign intelligence-gathering and criminal prosecution.
But FISA court's supine response to these recurring violations spoke volumes, completely discrediting the canard that unelected federal judges are out to handcuff the Bush administration's war against international terrorism. Until Sept. 15 of last year, the FISA Court required Justice Department personnel in receipt of certain FISA information to certify an understanding of "wall" procedures mandating court approval before sharing incriminating evidence with criminal prosecutors. Since that date, the FISA Court has authorized the review of all FBI international terrorism files by criminal division trial attorneys, including FISA case files and mandatory reports from FBI personnel and Criminal Division attorneys describing FISA case discussions. Is this the language of upbraid or chastisement?
President Bush enjoys formidable powers under FISA to collect and disseminate foreign intelligence information concerning United States citizens. Highly intrusive investigative techniques targeting agents of foreign powers or terrorist organizations are authorized for protracted periods by showing probable cause to believe information pertinent to national security will be unearthed. Targets of FISA surveillances and searches are never notified after-the-fact unless arrested and prosecuted.
If a prosecution is forthcoming, the target is denied access to FISA applications and affidavits supporting the FISA Court's authorizations to challenge their legality because the statute mandates in camera, ex parte review by the district court "if the attorney general files an affidavit under oath that disclosure or an adversary hearing would harm the national security."
FISA weak-heartedly attempts to corral foreign intelligence gathering by requiring "minimization" procedures to alleviate privacy concerns. The government is required to discard information that an FBI case officer determines "could not be" foreign intelligence, a standard that only the dullest of the dull cannot surmount.
FISA's muscularity and curtailment of the right to be left alone, nevertheless, is a reasonable price for civilization. September 11 alerted us to unplumbed levels of savagery and barbarism that lurk abroad. But even national security is a matter of degree, corroborated by our refusal to contemplate a Gestapo. At some point, marginal gains in thwarting a September 11 reprise and successful criminal prosecutions are outweighed by additional intrusions on citizen privacy.
That point was reached in Mr. Ashcroft's proposal to the FISA Court to marry foreign intelligence gathering and law enforcement, although FISA permits only an engagement. Mr. Ashcroft urged permission for criminal prosecutors to direct and control FISA counterintelligence investigations to further law enforcement objectives, including advising FBI intelligence officials on the initiation, operation, continuation and expansion of FISA authority by the FISA Court. In other words, FISA should permit prosecutors routinely to exploit foreign intelligence information collected without probable cause to believe crime was afoot, despite the apparent sinning against the Fourth Amendment.
The FISA Court balked, but then largely capitulated. It substituted for Mr. Ashcroft's union of law enforcement and intelligence collection sweeping authority for the FBI, the Criminal Division, and the Office of Intelligence Policy Review to consult directly and to coordinate their efforts to protect against international terrorism or other grave hostile acts. They may exchange information, identify categories of needed intelligence, and take whatever action is appropriate to insure that overlapping intelligence and criminal law enforcement interests are equally vindicated.
The attorney general, however, remains unsatisfied with his FISA victory just short of unconditional surrender. He is demanding judicial docility in lieu of extreme deference in an appeal from the Memorandum Opinion. He resists seeking a congressional amendment to unify law enforcement and foreign intelligence under FISA.
The Bush administration and the Justice Department must learn that the executive is not the only branch of government fit to govern. It commands no monopoly on patriotism. Thus, our Founding Fathers enshrined a constitutional separation of powers for the ages undeluded by the fantasy that angels would win elections.

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