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“We know that information we have been able to acquire about foreign
threats will help us detect and prevent attacks on our homeland,” President
Bush said upon signing the controversial legislation. “Mike McConnell, the
Director of National Intelligence, has assured me that this bill gives him the
most immediate tools he needs to defeat the intentions of our enemies. And
so in signing this legislation today, I am heartened to know that his critical
work will be strengthened and we will be better armed to prevent attacks in
the future.”
In the 1960s the FBI under the leadership of the late J. Edgar Hoover
conducted domestic intelligence gathering on prominent Americans which
was used by the director as “political blackmail” and to satisfy his own
prurient, deviant sexual interests. In the 1970s the CIA, during the corrupt
“Nixon era,” joined with the FBI in the nasty business of “domestic
surveillance” activities of American citizens. Anyone who dared speak
against the government, or the “Establishment” as it was commonly referred
to then, became a target of government surveillance. Not only were the
private lives of many Americans exposed for the wretched purpose of public
embarrassment and ridicule but some of the more “radical” antagonists were
framed for criminal prosecution while others were assassinated by
government agents.
While FISA was hailed as “reform” legislation, it was generally not too
friendly with the traditional notions of due process of law. For example, the
target of government’s surveillance could never challenge the many
necessary predicates for issuance of a surveillance warrant because he could
never learn what was in the government’s application that secured the
warrant. FISA provided that “if the Attorney General files an affidavit under
oath that disclosure or an adversary hearing would harm the national security
of the United States,” review of any motion to suppress evidence obtained
from the FISA surveillance “shall” take place in camera and ex parte. See:
50 U.S.C. § 1806(e).
The Fourth Circuit added that when the target of the FISA electronic
surveillance is a "United States person" as defined by the statute, the FISA
court may issue an order authorizing the surveillance only if the FISA judge
concludes that there is probable cause to believe that the target of the
surveillance is a foreign power (or agent of a foreign power) and the
following conditions are satisfied: 1) the proposed minimization procedures
are sufficient under the terms of the statute, 2) the required certifications
have been made, and 3) the certifications are not clearly erroneous. Id.
The Seventh Circuit rejected Ning Wen’s attempt to undermine Sealed Case.
The appeals court explained its position in detail:
The fourth amendment does not supply a better footing for exclusion.
FISA requires each intercept to be authorized by a warrant from a
federal district judge. See 50 U.S.C. § 1803(a). This brings into play
the rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82
L.Ed.2d 677 (1984), that the exclusionary rule must not be applied to
evidence seized on the authority of a warrant, even if the warrant turns
out to be defective, unless the affidavit supporting the warrant was
false or misleading, or probable cause was so transparently missing
that “no reasonably well trained officer [would] rely on the warrant.”
Id. at 923, 104 S.Ct. 3405.
At one time it was seriously questioned whether an intercept order is a
“warrant” for constitutional purposes, see Telford Taylor, Two Studies
in Constitutional Interpretation 79-88 (1969), but characterization
was settled in favor of “warrant” status by Dalia v. United States, 441
U.S. 238, 256 n. 18, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). And our
in camera review reveals that well-trained officers were entitled to
rely on this warrant. The Executive Branch did the right thing in
asking for a warrant. Suppose that FISA were the wrong source of
authority and that the judge should have turned the request down
because the investigation's domestic component overshadowed its
international aspect. Then the Executive Branch could have obtained a
domestic intercept order under Title III. The evidence narrated in the
affidavit establishes probable cause to believe that phone lines were
being used to discuss or plan violations of 50 U.S.C. § 1705(b). An
error about which court should have issued a warrant, under which
statute, does not support exclusion.
Probable cause to engage in surveillance under FISA exists the moment the
government believes that a foreign agent is communicating with his
controllers outside the nation’s borders. And the Seventh Circuit added that
“if, while conducting this surveillance, agents discover evidence of a
domestic crime, they may use it to prosecute for that offense. That the agents
may have known that they were likely to hear evidence of domestic crime
does not make the interception less reasonable than if they were ignorant of
this possibility.” Id.. at 898. The appeals court concluded that the only issue
was whether the intercept was “adequately justified,” and if so, evidence of
domestic offenses is legitimate matters for prosecution. Id., at 899.
It was during the early stages of the social and political upheaval which
followed 9/11 that the contentious issue of “probable cause” demanded by
the FISA court compelled the Bush administration to devise ways to
circumvent the court’s requirements. The Department of Justice following
9/11 soon found it increasingly difficult to show “probable cause” that the
targets it had selected for electronic surveillance were either engaging in
espionage or were part of a terrorist organization. FISA court judge James
Robertson quickly became alarmed by the Bush administration’s zeal to find
“terrorists” under every nook and cranny in the country. Judge Robertson
reportedly told FISA court colleagues that the administration was spying on
Americans and using the evidence obtained from these unlawful surveillance
activities to show “probable cause” to the FISA court without informing the
court about how the evidence had been obtained.
That may explain not only why the Bush administration bypassed the
court entirely, but why legislation [The Protect America Act of
2007]written by the White House that was passed by Congress last
week stripped the FISA court from the approval process and put
oversight into the hands of Gonzales and the Director of National
Intelligence, Michael McConnell, without requiring an independent
legal review.
Since 2001, the DOJ reports to Congress show the FISA court had
modified more wiretap requests from the Bush administration than it
had during the four previous presidential administrations combined.
Of the 6,000 or so surveillance applications the Bush administration
filed with the court since 2001, judges either modified and/or
requested more information for 179 of them - 173 between 2003 and
2004 alone. Moreover, the court either rejected or set aside at least
half-a-dozen applications for warrants in 2003 and 2004, the first time
in history the court issued a rejection, DOJ records show.
Judge Robertson did not wait for the arrival of The Protect America Act.
Two years ago he notified U.S. Supreme Court Chief Justice John G.
Roberts, Jr. that he was resigning from the FISA court. Judge Robertson’s
resignation came shortly after a December 2005 report by The New York
Times exposed a “warrantless wiretapping program” authorized by President
Bush shortly after 9/11. The highly respected judge simply could not
stomach the unilateral decision by the executive branch to spy on Americans
believed to have terrorism links without any “probable cause.” Bush and
Attorney General Alberto Gonzales defended the spying program that
circumvented the FISA court and influenced Robertson’s resignation by
saying the court’s warrant approval process was too “cumbersome.”
The DOJ's attempts to broaden the FBI's spying abilities after 9/11
became a major concern for the FISA court, so that in May 2002 it
secretly ordered then Attorney General John Ashcroft to scale back
his plans to expand the FBI's investigative powers because it infringed
on civil liberties, according to a May 17, 2002 Foreign Intelligence
Surveillance Court document.
"DOJ explained that this proposal was to address the threat posed by
a single foreign terrorist without an obvious tie to another person,
group, or state overseas. Yet, when asked to 'provide this Committee
with information about specific cases that support your claim to need
such broad new powers,' DOJ was silent in its response and named no
specific cases showing such a need, nor did it say that it could provide
such specificity even in a classified setting," the Senate Judiciary
Committee report states.
"In short, DOJ sought more power but was either unwilling or unable
to provide an example as to why," the report added.
The Bush administration, however, was not impressed with the Senate
committee’s suggestions. The following year the White House tried to
pressure former Attorney General John Ashcroft to authorize its so-called
Terrorist Surveillance Program (TSP) – a program that effectively allowed
the White House to bypass the FISA court. According to testimony last May
by the former Number 2 man at the Department of Justice, James Comey,
Ashcroft refused to succumb to the White House pressure. It can reasonably
be assumed that as the Attorney General of the United States Ashcroft was
mindful of the prior reluctance of the FISA court to summarily issue
surveillance warrants, as well as the political concerns from the Senate
Intelligence Committee about the Bush administration’s surveillance
activities, and did not want to be a party to any Nixon-era like unauthorized
covert domestic spying activities. Comey told Congress that the then White
House counsel Alberto Gonzales and former White House chief of staff
Andrew Card went to Ashcroft’s hospital bed late at night and, according to
Leopold, “tried to coerce a barely conscious” Ashcroft to approve the covert
spying program. Leopold set the scene the scene based on Comey’s
Congressional testimony:
With The Protect America Act of 2007 the Bush administration now has
authority independent of the FISA court to conduct its beloved “surveillance
activities.” Following the president’s signature on the legislative enactment
the White House issued a “fact sheet” that listed the four ways the new act
“modernizes” the 1978 FISA legislation:
There is simply no empirical evidence that The Protect America Act of 2007
will be used responsibly to detect real terrorist threats emanating from
abroad. Based on past experience not only with this administration but with
Nixon and pre-Nixon administrations, the “third parties” the government
plans to use will be rogues engaged in all sorts of illegal activities. And
while the FISA court may maintain some limited reviewing role in the
surveillance process, the White House has clearly circumvented the
longstanding constitutional concerns of the court on the issue of “probable
cause” with this new “protect America” legislation.
In a recent The New York Times op-ed piece, law professors Jeff Goldsmith
and Neal Katyal proposed what they called a “bipartisan measure” that
Congress create a “Terrorists Court.” The law professors wrote that “nearly
six years after 9/11, the government’s system for detaining terrorists without
charge or trial has harmed the reputation of the United States, disrupted
alliances, hurt us in the war of ideas with the Islamic world and been viewed
skeptically by our own courts.” Explaining their proposal, the professors
said “the two of us have been on opposite sides of detention policy debates,
but we believe that a bipartisan solution that reflects American values is
possible. A sensible first step is for Congress to establish a comprehensive
system of preventive detention that is overseen by a national security court
composed of federal judges with life tenure.”
The tragic truth is that the “terrorist” hysteria has become borderline
political insanity. In the aftermath of 9/11, Geneva convention mandates, the
“Great Writ” of habeas corpus, the FISA court, and sacred traditional
notions of due process of law lay shattered on the battlefield in the ever-
expanding “war on terror.” Preventive detention is an inevitable
consequence. After all the states of Kansas and Washington have already
embraced laws approved by the U.S. Supreme Court that authorize the
“preventive detention” of sex offenders determined to pose a “threat to
society” upon completion of their criminal sentences. So in this “crazy”
world of real and imagined “terrorists threats,” it only follows that law
professors like Goldsmith and Katyal would propose Congressional
legislation establishing “preventive detention” facilities for “enemy
combatants” and a “National Security Court” to deal with them.
The tragedy is that terms like “The Patriot Act” and The Protect America
Act” and “preventive detention” and the “National Security Court” have
been created to support both the knowing and unsuspected efforts of many in
this country to undermine our sacred constitutional system of government.