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The FISA Farce

by James Bovard

President Bush proudly announced last month that he is violating federal law. He declared that in 2002 he ordered the National Security Agency to begin conducting warrantless wiretaps and email intercepts on Americans. He asserted that the wiretaps would continue, regardless of the law.

Bush claims that he must ignore the law because the secret federal court created to authorize such wiretaps moves too slowly to protect U.S. national security. Amazingly, his claim has been treated with respect, if not deference, by much of the nation�s media. Much of the media has groveled to his claim the same way that the special court grovels to federal agencies.

In 1978, responding to scandals about political spying on Americans in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA created a new court to oversee federal surveillance of foreign agents within the United States.

The FISA court may be the biggest bunch of lapdogs in the federal government. The court approved almost every one of the 15,000 search warrant requests the feds submitted between 1978 and 2002, and it continues to approve more than 99 percent of requests.

FISA provides a judicial process only in the sense that the room where the political appointees convene is called a court. As national security expert James Bamford observed, Like a modern Star Chamber, the FISA court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The eleven judges (increased from seven by the Patriot Act) hear only the government's side.

Federal agencies can submit retroactive search warrant requests up to 72 hours after they begin surveilling someone. In 2002, for instance, Attorney General John Ashcroft personally issued more than 170 emergency domestic spying warrants; permitting agents to carry out wiretaps and search homes and offices for as many as 72 hours before the feds requested a search warrant from the FISA court. He used such powers almost a 100 times as often as attorneys general did before 9/11.

Congress set a very low standard for FISA search warrants. In federal criminal investigations, the government must show probable cause that a person is involved in criminal activity before being permitted to impose a wiretap. Under FISA, the government need show only that a person is suspected of being an agent of a foreign power or terrorist organization.

When FISA authorizes surveillance, the feds can switch on all the turbos. In a 2002 decision, the Foreign Intelligence Surveillance Court noted that after it grants a surveillance request,

After 9/11, the Justice Department vigorously lobbied for Congress to revise FISA to permit it to be used for spying on Americans with little or no relationship to foreign powers or terrorist plots. Ashcroft claimed that the reform was needed because FISA had impeded efforts to track terrorists. The dispute was not over whether foreign agents should be tracked: no one in Congress was opposed to that. The issue was whether the feds could launch massive surveillance operations against U.S. citizens on the pretext of fighting terrorism even though there was no evidence of their criminal wrongdoing. Congress acquiesced to Ashcroft's demands. Read the Full Article.

James Bovard's Archives which go back well into the Clinton years.