"The FISA Farce" by James Bovard -The Price of Liberty

The Future of Freedom Foundation

"The FISA Farce"
by James Bovard

Mission Statement
Revised 8.04.04

Editorial Policy Revised 3.19.04

See Reader's

Feedback

Reader's Forum

The Lightside

Commentary
on the News

Return to Home Page

February 06, 2006

President Bush proudly announced in December that he is violating federal law. Bush declared that, in 2002, he had ordered the National Security Agency to begin conducting warrantless wiretaps and email intercepts on Americans. Bush 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, Bush's claim has been treated with respect, if not deference, by much of the nation's media. Much of the media has groveled to Bush's 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 lapdogs in the federal government. The court approved almost everyone of the 15,000 search warrant requests the feds submitted between 1978 and 2002, and continue to approve more than 99% 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 over 170 emergency domestic spying warrants in 2002?permitting agents to carry out wiretaps and search homes and offices for up to 72 hours before the feds requested a search warrant from the FISA Court. Ashcroft used such powers almost a hundred times as often as attorney generals 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 only show that a person is a suspected agent of a foreign power or terrorist organization. The standard is different because Americans' rights are protected by the Fourth Amendment, while foreign agents do not receive the same shield from government intrusion.

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, "the FBI will be authorized to conduct, simultaneously, telephone, microphone, cell phone, e-mail and computer surveillance of the U.S. person target's home, workplace and vehicles. Similar breadth is accorded the FBI in physical searches of the target's residence, office, vehicles, computer, safe deposit box and U.S. mails where supported by probable cause."

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 relations 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.

A few months after the Patriot Act was signed, Ashcroft proposed new regulations to "allow FISA to be used primarily for a law enforcement purpose." The seven FISC judges unanimously rejected Ashcroft's power grab as contrary to federal law. The Bush administration appealed the decision, and a special FISA appeals court met in secret and only the Justice Department was permitted to argue its side. Steve Aftergood, editor of the Federation of American Scientists' Secrecy News, commented that the transcript of the hearing (released months after the fact) showed that "the judges generally assumed a servile posture toward the executive branch, even consulting the Justice Department on how to handle its critics." The FISA appeals court, in a November 2002 decision, gave Ashcroft everything he wanted.

Even though the FISA court is often a farce, providing only a facade of judicial procedure, any restriction on domestic spying was too much for the Bush administration. Or perhaps Bush believes that being obliged to request retroactive search warrants tarnishes his imperial majesty. There is an old saying about some people being too proud to fight. Perhaps George Bush is too proud to get a warrant before he spies on Americans.

It remains to be seen whether Congress or federal courts will hold the president liable for proclaiming that he is above the law.

James Bovard is the author of Attention Deficit Democracy (Palgrave, January 2006) and Terrorism & Tyranny (Palgrave, 2003), and is policy advisor at The Future of Freedom Foundation (www.fff.org).