Star Chamber
Few Americans realize that in 1978, the United States government created a secret court with no public records and no accountability, but with the power to approve secret charges and secret searches against any American, provided that law enforcement officials show that issues of national security are at stake. Thus was born the Foreign Intelligence Surveillance Court (FISC).
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This court was created as part of the Foreign Intelligence Surveillance Act (FISA), a compromise worked out in the wake of Watergate, when it was discovered that the government had been engaged in widespread domestic spying on Americans for decades. Citizens were outraged and wanted reform, but law enforcement wanted to keep things the way they were.
Prior to FISA, most presidents claimed to have the implicit constitutional authority to approve warrantless searches as part of the executive branch's powers to conduct foreign policy. Unfortunately, this "authority" was extensively abused in efforts to spy against anti-war demonstrators, union organizers, civil rights leaders, and others found to be subversive to the status quo.
FISA was sponsored by Senator Edward Kennedy (D-MA), who wanted to regulate the power of such warrantless searches and government surveillance. For him and others, it was important to hold the FBI and NSA to standard procedures and force them to obtain the court orders normally required in criminal investigations. Federal agencies, however, wanted to remain completely autonomous.
The creation of FISC bound the NSA and FBI to seek a judicial review for their attempts to conduct surveillance in cases of national security. Consisting of seven federal judges picked by the Chief Justice of the Supreme Court, each serving a single seven-year term, the court meets in a secret, windowless room in the Department of Justice.
And just how effective has this court been in limiting the ability of the government to spy on Americans? Reportedly there have been almost 12,000 requests for covert surveillance and searches over the court's first twenty-one years, and it is alleged that one of those requests was actually denied, but that does not appear to be certain.
I suppose that it is possible that the existence of the court serves to create "self-censorship" on the part of federal agencies, causing them to hold back requests which they know won't be approved but which they would act upon if they did not have to submit to judicial review. Yet just how likely is that, really?
Originally, the court's jurisdiction was only over surveillance and wiretapping, but that changed in 1995 due to the Aldrich Ames espionage case. For months, Ames had been under surveillance by the FBI for suspected acts of espionage, and finally Attorney General Janet Reno approved a request to search his house and car.
Unfortunately, the Attorney General did actually have the authority to permit warrantless searches - no one did, and all searches had to be approved by a court. Fortunately for the government, Ames settled the case out of court, and the constitutionality of their actions did not receive judicial scrutiny.
In order to avoid similar situations in the future, Congress obliged a Department of Justice request and expanded the powers of the FISC in the Intelligence Authorization Act of 1995. With that, not only could the FISC now approve warrantless searches of Americans conducted by the FBI, but the Attorney General could as well.
So, have you ever donated money to any "subverisve" groups? Have you read any magazines or newsletters from the "wrong" organizations?
Although the purpose of these searches, like the surveillance, is only supposed to be for the purpose of counter-intelligence, any evidence gathered in this manner can be used in criminal proceedings without violating the Fourth Amendment. Even worse, all information regarding the order and the evidence itself are permanently sealed and marked "Top Secret," effectively preventing accused citizens from reviewing the evidence being used against them or from learning the basis for the search order.
In addition, those targeted do not have to be under suspicion of committing any actual crimes. On the contrary, they can be investigated based upon a "probable cause" which is assumed solely from their associations or status - for example, because they belong to, or somehow aid, any organization deemed a threat national security. So, have you ever donated money to any "subverisve" groups? Have you read any magazines or newsletters from the "wrong" organizations?
Although the FISC was used little during the Carter Administration, the number of requests they approved shot up during the Reagan and Bush years, and actually got even higher during the Clinton administration. Particularly odd is the fact that during 1996 and 1997, this single court approved more surveillance and search requests than the entire federal judiciary!
FISC vs. Civil Liberties
Nearly half of the Bill of Rights is undermined by the existence and use of the FISC. Under the FISA, American citizens can be investigated because of legal, but unpopular, political statements and activity, despite the protection of the First Amendment we are supposed to have for free speech and assembly.
Because of the FISC, Americans are having their homes and property searched without reasonable cause and without warrants that are subject to public scrutiny, something which cuts the heart out of the Fourth Amendment. Do you know if your home has been searched? If it has been searched, how would you know - until you are arrested, that is?
The Fifth Amendment is supposed to guarantee us the right against self-incrimination. That, however, becomes a hollow promise when the government can engage in covert surveillance of our conversations without probable cause and without proper justification, all in the name of "national security." If federal agents have a good reason to spy on an American, and they gather evidence which leads to a criminal prosecution, there is no reason why they should not have to meet the same burdens of proof and justification as is required in standard criminal cases.
Finally, the Sixth Amendment right to confront accusers becomes lost when an accused person has no right to review the evidence against him or to review the reasons why an investigation was ever launched in the first place. Not even the accused's lawyers are allowed to review the evidence collected under FISC orders. Even juries cannot see the evidence, and are instead instructed to trust the testimony of the judge presiding over the case.
But what are the real risks to security, and are they high enough to justify continued abridgements of our most basic civil liberties?
Part of the problem here is that investigations under FISA are not supposed to be part of criminal probes. They are instead simply supposed to be part of counterintelligence efforts conducted under the aegis of foreign policy. Yet so far, over 90 criminal cases have resulted from evidence gathered under FISC orders.
Obviously the use of FISC approval is appealing. For one thing, there are no worries of real congressional or judicial oversight. There are also no problems with defense lawyers, because they cannot review or challenge anything done once the FISC approves of it - and of course, there are no advocates for the accused when the FISC considers any requests.
Another problem is the ease with which the interests of "national security" are invoked to justify these breaches of civil liberties. Granted, national security is important, but at no point are unambiguous standards of "national security" ever laid out so that people can know what they are and if necessary, challenge them.
It is also true that no one wants to run the risk of further incidents like the terrorist attacks of September 11th. People's fears of more attacks will be used not only to justify the existence of this secret court, but perhaps also to expand its powers even further. But what are the real risks to security, and are they high enough to justify continued abridgements of our most basic civil liberties?
It is instructive to look at what else we tolerate in society in the name of freedom. How many people die each year because we tolerate the legality of cigarettes and alcohol? How many people die each year because we tolerate having speed limits set higher than 55 mph? How many people die each year because we tolerate private gun ownership?
Surely our rights to public and fair trials, to freedom of speech and assembly, to being secure in our homes and papers, and to being free from covert spying from government agents are more important than any rights to smoke, drink, or drive 63 mph down the highway.