The Further Dangers of Secrecy: A Federal District Court Interprets the Foreign Intelligence Surveillance Act to Allow Spying on Those Who Are Neither Spies Nor Terrorists

By JENNIFER VAN BERGEN
Tuesday, Sep. 05, 2006

Last December, a New York Times article revealed the existence of an NSA domestic spying program. Also that month, the Bush Administration admitted that, indeed, the NSA was wiretapping Americans' overseas phone calls, when the calls were placed to phone numbers or people the government suspected of having a terrorism connection. (A recent decision in a lawsuit against AT&T, which cooperated in the program, indicates that the program may have even wider reach.)

Previously, President Bush had claimed that his Administration did not wiretap without "getting a court order before we do so" - presumably from the court created by the Foreign Intelligence Surveillance Act (FISA), enacted in 1978 to regulate and limit presidential spying. The Administration's December 2005 admission, however, showed that, in fact, it was bypassing the FISA Court - and bypassing Congress, which enacted FISA. As a result, many observers argued that the President had violated the constitutional separation of powers by infringing on Congress' territory, and potentially violated the Fourth and First Amendments as well, by infringing on people's privacy and rights to free speech and association.

It was in this context that an August 14 decision by Judge T.S. Ellis III of the U.S. District Court for the Eastern District of Virginia was handed down. If other courts follow this decision, then there may be little reason, anymore, for the Administration to even bother to bypass FISA - for the ruling broadens a critical definition in FISA to such a degree that one wonders whether the law offers much limitation any more. In so doing, the ruling betrays both FISA's intent, and, like the NSA program, the First and Fourth Amendments.

FISA: The Basic Fourth Amendment Problem

Before Congress passed the USA PATRIOT Act, FISA seems to have been fairly strictly applied, as was Congress' original intention, to investigations that involved primarily foreign intelligence. There was a clear division between criminal investigations, which required a showing - borrowed from Fourth Amendment jurisprudence -- of probable cause of criminal activity to obtain a warrant, and foreign intelligence investigations, which did not require that showing.

Foreign intelligence investigations did and do, however, require a showing of probable cause that the target is a foreign power or an agent of a foreign power - or is aiding and abetting such a person. Even so, this showing may not comply with the Fourth Amendment.

The Fourth Amendment protects "the right of the People . . . [to] be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and guarantees that "no warrants shall issue but upon probable cause." The phrase "probable cause" in the Fourth Amendment has consistently been interpreted since the American Revolution to mean "probable cause of criminal activity." Moreover, while the Fourth Amendment guarantees a "right of the People," the "People" may extend beyond U.S. citizens, to residents and visitors. No wonder, then, that the FISA Review Court noted in a 2002 opinion that "a FISA order may not [after all] be a 'warrant' [as] contemplated by the Fourth Amendment."

The FISA Review Court defended FISA warrants, nonetheless, by noting that "the main purpose of ordinary criminal law is to punish the wrongdoer and deter other[s]" and that punishment under foreign intelligence investigations "is really a secondary objective; indeed, punishment of a terrorist is often a moot point." But the fact is, FISA warrants do often lead to punishments and jail time, and even terrorists may be caught at the plotting stage (as in the recent U.K. liquid explosives conspiracy) - so the FISA Review Court's defense of FISA warrants is quite unconvincing.

At a minimum, FISA was skating on thin Fourth Amendment ice when it allowed searches and seizures in the absence of traditional probable cause: probable cause as to criminal activity. And the Fourth Amendment - of central importance to the Framers - cannot be taken lightly: British abuse of searches and seizures in the Colonies during the 1760's was a "primary goad to the Revolutionary War," writes constitutional scholar Jethro K. Lieberman in his encyclopedic A Practical Companion to the Constitution.

The Post-9/11 Amendments to FISA

Ironically, even as the Administration has insisted on bypassing FISA, Congress twice amended the law, post-9/11, to broaden its scope and adapt it to the war on terror. It is particularly troubling that the Bush Administration secretly bypassed Congress by simply ignoring FISA when Congress had proven itself ready and willing to amend FISA.

In 2001, via the USA PATRIOT Act, Congress amended FISA so that it could also be applied to information that was not primarily foreign intelligence. The unfortunate result was that the government could pick and choose which probable cause standard would apply - and thus had the ability to make an end-run around the Fourth Amendment's standard of probable cause as to criminal activity, even in cases that did not involve primarily foreign intelligence. Here, the Fourth Amendment ice got much, much thinner; indeed, in the opinion of many critics, it cracked.

Another post-9/11 expansion of FISA came with the 2004 Intelligence Reform and Terrorism Prevention Act (IRTPA), which enacted a "lone wolf" provision to expand the definition of "agent of a foreign power" to include any non-United States person who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power." This expansion was much less troubling than the PATRIOT Act's expansion of the FISA "primary purpose" standard, however, for the IRTPA applies only to foreign persons committing crimes - a focus that is consistent with the original focus of FISA.

The Increasing Expansion of the "Agent of a Foreign Power" Definition"

Again, the standard under FISA for a foreign intelligence investigation (or, since the USA Patriot Act, an investigation with a "significant" foreign-intelligence purpose) is probable cause that a target is a foreign power or an agent of a foreign power (or an aider or abettor thereof) - not probable cause that a crime has been or is being committed.

It's possible that the target who falls under this definition may be committing a crime, since the definition of "agent of a foreign power" includes any person who "knowingly engages in clandestine intelligence gathering activities on behalf of a foreign power . . . in violation of the criminal statutes of the United States," whether at the direction of a foreign intelligence service or not, as well as those who aid or abet any person conducting such activities.

But importantly, it's not necessary that the target who falls under this definition is committing a crime. He, she, or it may simply be a foreign power, a faction of a foreign nation, a foreign-based political organizations, or an officer or employee of a foreign power.

That's where last month's court decision comes in. In brief, in that decision, the court interprets the definition of "agent of a foreign power," in FISA, to include individuals who are, well, NOT agents of a foreign power.

In the case before the court, the targets of surveillance were lobbyists who allegedly broke a U.S. law by passing on "national defense information" to "persons not entitled to receive it," including members of the media, foreign policy analysts, and certain foreign officials. But the government concedes that while the lobbyists are claimed to have passed on material to agents of a foreign power, they were not themselves agents of that power.

One lobbyist was additionally charged with aiding and abetting the communication of national defense information to persons not entitled to it - simply because he provided a fax number to which a DOD employee (a co-defendant in the case on the other charges) could fax a document the employee had prepared which contained "national defense information" that was not itself classified but was derived from a classified document.

The next step on the slippery slope? It could be warrantless surveillance of reporters like the ones who allegedly received the lobbyists' information. After all, this is an Administration that has threatened criminal investigations of leaks to the New York Times.

If this happens, the Fourth Amendment warrant requirement will have become entirely meaningless.

Indeed, if President Bush can continue to direct the NSA to engage in domestic spying on citizens without any warrants at all, FISA or otherwise, perhaps the Fourth Amendment - and maybe the whole Constitution - should just be jettisoned.


Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law. Her book, ARCHETYPES FOR WRITERS, about the characterization method she developed and taught at the New School University, will be out in 2007. She currently teaches English at Sante Fe Community College in Gainesville, FL and will speaking on "Accountability Day" at Camp Democracy (www.campdemocracy.org) on Sept. 17 in Washington, D.C. She can be reached at jvbxyz@earthlink.net.

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