This week, a federal court of appeals declared that "democracies die behind closed doors" and demanded that Attorney General John Ashcroft open up the immigration hearings for suspects connected to Sept. 11 roundups. But wherever the courts open one door, Ashcroft and the Bush administration manage to close another. And so we find ourselves in peril of losing the right to search warrants granted by real judges in real courts, as the attorney general again attempts to drag the Constitution into dark caverns and windowless towers.
The Fourth Amendment guarantees that "the right ... against unreasonable searches and seizures … shall not be violated." Two hundred years of case law and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provide that if the government wants to eavesdrop on your conversations or search your possessions for the purposes of bringing criminal charges, it must first provide a judge or magistrate with evidence of "probable cause" that a crime has been committed. No probable cause, no wiretap, no warrant, and no quickie search just for the fun of it.
The exception to this principle arises with respect to presidential authority and national security. Presidents from Roosevelt to Bush have asserted the constitutional right to authorize surveillance without a warrant, where national security—as opposed to crime control—is at issue. Courts generally agreed, and it wasn't until after Richard Nixon gave a whole new meaning to both surveillance and national security that Congress, in 1978, enacted the Foreign Intelligence Surveillance Act, allowing the executive branch to still conduct surveillance and searches for foreign security purposes, but only subject to the oversight of a supersecret FISA "spy court." First mistake: ensuring presidential openness and transparency by creating a secret court.
The FISA court permits warrantless government surveillance so long as the primary purpose is to obtain foreign intelligence information. Under FISA, the government needn't show probable cause that a crime has occurred; FISA surveillance orders are valid for 90 days as opposed to 30 days for ordinary search warrants; the target of surveillance is never advised of this surveillance; and the application itself and supporting affidavits are filed under seal so that neither the target nor his attorney can ever see the allegations against him. The Foreign Intelligence Surveillance Court is comprised of 11 federal district court judges secretly selected by the chief justice of the United States. These judges preside in a secret windowless courtroom, behind elaborately locked doors on the top floor of the Department of Justice on Washington's Pennsylvania Avenue NW. James Bond, Austin Powers, and Underdog take turns guarding the door.
Following Sept. 11, Congress scrambled to enact legislation to prevent future terrorism. In the six weeks lawmakers gave themselves to enact the USA Patriot Act, they had just enough time to rubber-stamp John Ashcroft's Christmas wish list with scant scrutiny of the legal necessity or constitutionality of his myriad requests. That flapping noise we are now hearing about secret courts is the sound of these chickens coming home to roost. The Patriot Act amended FISA so that foreign intelligence gathering need no longer be the "primary" purpose of the surveillance, so long as it's a "significant purpose." In other words, thanks to the Patriot Act, the primary purpose for a warrantless FISA wiretap or search can now be evidence collection for criminal prosecution or the fact that someone just looks kind of creepy.
The tussle between John Ashcroft and the secret court followed Ashcroft's secret request last March that this provision of the Patriot Act—lowering the "firewall" between DOJ prosecutors and foreign intelligence investigators—be enforced. He asked the court to give him what Congress had already promised: the right to use FISA searches to circumvent the Fourth Amendment warrant requirement in every criminal prosecution tangentially related to "national security." He wants the criminal division to direct all future FISA/fishing expeditions and to reconfigure FISA as a prosecutorial—rather than surveillance—tool. He asked, in other words, for FISA to become his surveillance bitch.
In a hugely unprecedented Memorandum Opinion released last week by the secret court, the judges refused Ashcroft's request. This same court that has never released an unclassified opinion, that has granted over 10,000 FISA surveillance applicationsand rejected none over 23 years, this court that operates outside the norms of adversarial proceedings, and which thus ends up OKing virtually every document that flutters across its secret desk, this court refused to allow Ashcroft to tear down the wall between foreign investigation and criminal prosecution. Finding that "the collection of foreign intelligence information is the raison d'etre for the FISA," the court refused to allow the criminal division to swallow the FISA court whole. Ashcroft—who appealed the decision last week to a super-duper-secret FISA appeals court that has never before been convened—claims that an inability to share information between investigators and prosecutors hamstrings his ability to fight terrorism. But the court pointed out that there are already ample mechanisms for "controlled" information sharing between the FBI and criminal divisions; it's simply that the criminal division "may not direct or control FISA investigations."
The part of the opinion that gained the most attention was the "FISA lies," although they were not really relevant to the court's decision. It seems that in September 2000, the government came forward and reported that it had made about 75 material misstatements of fact in its FISA applications, including a false certification that a FISA target was not under criminal investigation. Virtually every false statement involved misstatements about information-sharing between the criminal and intelligence divisions. These misstatements happened in the Clinton administration, not Bush's. Most troubling: Had the Justice Department not come forward, the FISA court would never have learned of these lies.
No one should be surprised that misrepresentations were made: The reason we have an adversarial system in the first place is to test the truth of prosecutors' claims. The only thing the FISA court proved was that when wolves are guarding the henhouse, they eat a lot of coq au vin.
While the FISA court sidestepped the constitutional question before it, the court held fast to the premise that warrantless searches may be used only for national security purposes. But does it really matter whether there is a firewall between criminal prosecutors and FBI investigators or which of them directs government surveillance? Evidence is evidence, right? Who cares where it comes from? The framers cared a little. Just because evidence is needed to prosecute crimes doesn't make obtaining evidence an end in itself. The point of the warrant requirement was to keep the state from inventing/planting/hypothesizing evidence without allowing you to contest it. By putting probable cause on the record, testing it before a neutral judge, and advising the target of its existence, we guard the wall between reasonable searches and government harassment. And this is why the government's 75 FISA lies are so important: They are more or less an "I told you so" postcard from the framers.
Ashcroft points out that the Patriot Act itself authorized the destruction of the wall between collecting foreign intelligence and criminal prosecutions. It did. The Patriot Act also authorized possibly unconstitutional roving wiretaps, "sneak and peak" warrants, and an expansion of FISA searches from "foreign powers or agents" to U.S. citizens and lawful residents. Ashcroft himself has unilaterally asserted the constitutionality of eavesdropping on attorney-client conversations, indefinite detentions of suspected terrorists, and closed military tribunals. Thankfully, it's not for Congress or John Ashcroft to declare unconstitutional laws constitutional. That job belongs to the courts.
Whether or not the courts will preserve the wall between reasonable searches and unreasonable ones, whether they care about the wall between foreign surveillance and domestic prosecution remains to be seen. The courts have tended to defer to the executive branch in wartime. But the courts also know why they are in business. And "secret courts" by their very nature undermine what's best about the judiciary: They do away with openness, legitimacy, published opinions, judges with names, and adversarial proceedings. Without open courts, you might just as well just flip a coin.