- The Washington Times - Tuesday, November 26, 2002

Newspapers are too often not the first drafts of history, but the originators of historical fables. That pejorative applies to many of the news reports of last week's decision by the United States Foreign Intelligence Surveillance Court of Review approving dual purpose spying.
The Court of Review concluded that neither the Fourth Amendment nor the Foreign Intelligence Surveillance Act (FISA) prohibits search warrants issued by a neutral magistrate to obtain foreign intelligence when a parallel or more important objective is the prosecution of espionage or terrorist-related crimes. Despite the tightly circumscribed holding, inexact and counterfactual news reporting raised the specter of a Gestapolike state. What do you think?
The Fourth Amendment customarily prohibits police searches unless a warrant is issued by an independent magistrate based on probable cause to believe evidence of crime will be discovered. When the government purpose is non-criminal, the standards for warrants are less exacting. The ultimate constitutional test is "reasonableness," informed by the vexing tradeoff in a free society between public safety and privacy from government snooping.
Under FISA, a warrant to conduct electronic surveillance to gather foreign intelligence is authorized if there is probable cause to believe the target is an agent of a foreign power and is using the places or facilities to be investigated. A foreign power is defined to include an international terrorist group, like al Qaeda or Hezbollah. FISA aims to confound international terrorism or sabotage or clandestine activities by foreign powers. Its chief mission is not criminal prosecution.
A U.S. person becomes subject to a FISA warrant as a foreign agent only by flirting with foreign intelligence crimes. The agent designation is triggered by knowingly engaging in "clandestine intelligence gathering activities which involve or may involve a violation of criminal statutes of the United States," or knowingly engages in "sabotage or international terrorism."
A warrant also requires a government showing that normal investigative techniques would be futile, and, that procedures have been established to ensure minimization of privacy intrusions consistent with the purpose of the surveillance.
Several years after its enactment in 1978, FISA came to be interpreted by the Justice Department and federal courts as authorizing warrants only when their "primary purpose" was foreign intelligence, as opposed to criminal prosecution. At that time, fears of global international terrorists a la Osama bin Laden and his al Qaeda fanatics seemed overwrought or exaggerated.
Traditional concerns for privacy the sacred right to be left alone by government trumped any relaxation of regular constitutional thresholds for spying on American citizens suspected of attachment to a foreign nation or terrorist organization with the goal of criminal punishment. And that resistance to lowering the Fourth Amendment bar developed despite its perverse consequences.
Suppose the government sought surveillance of a foreign agent both to prosecute a foreign intelligence crime and to collect intelligence about co-conspirators or foreign plots in order to shipwreck planned terrorism or espionage. The latter are legitimate intelligence objectives under FISA.
But under the crabbed construction of the statute embraced by the department and the courts, a FISA warrant and intelligence-gathering would be denied simply because prosecution was a more dominant objective and even though the fear of criminal punishment might "turn the agent."
Then came the September 11 abominations. Congress raced to enact the U.S. Patriot Act and to amend FISA to strengthen both intelligence collection and criminal prosecution. Warrants are now authorized if intelligence collection is "a significant purpose," even if criminal prosecution is the predominant objective. Further, foreign intelligence surveillants may consult with law enforcement officers to protect against hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign agents. In other words, intelligence collection and prosecution of foreign intelligence crimes under amended FISA are mutually reinforcing enterprises.
The Surveillance Court of Review, aided by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers challenge to the Justice Department in In re Sealed Case (Nov. 18, 2002), declared the amended FISA law constitutionally irreproachable.
In ordinary circumstances, a Fourth Amendment search warrant requires probable cause to suspect crime. Amended FISA, in contrast, authorizes warrants to search for foreign intelligence crimes without probable cause if a significant subsidiary purpose is foreign intelligence collection. But the discrepancy in the two standards is unalarming.
Nonforeign intelligence crimes are outside the ambit of amended FISA, and remain governed by the regular probable cause standard. And foreign intelligence crimes, i.e., terrorism, sabotage, or espionage, which stand at the apex of public danger, may be investigated only when the government establishes probable cause to suspect the target is an agent of a foreign power who might cross the line into criminality, a marginally less demanding threshold than probable cause to suspect criminality.
But that small difference in law may carry enormous consequences.
Before the Joint Hearing Before the Senate and House Intelligence Committees (Sept. 20. 2002), an FBI special agent submitted a statement that testified more powerfully to the constitutionality of amended FISA than might be discerned from countless Supreme Court precedents. A criminal investigation of two of the September 11 hijackers was stymied by a putative Chinese wall between intelligence and law enforcement. The special agent wrote to headquarters in prophetic frustration: "omeday someone will die and wall or not the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.' Let's hope the National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, [Osama bin Laden], is getting the most protection."

Bruce Fein is founding partner of Fein & Fein law firm in Washington.


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