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The Secret Court of Terror Investigations

Congress votes this week on legislation making permanent nearly all of the USA Patriot Act. One focus of the bill is a little-known institution that has grown in power since the Sept. 11 attacks: the Foreign Intelligence Surveillance Court.

The court authorizes surveillance of suspected spies and terrorists. It is viewed with great suspicion by civil liberties groups concerned about the secrecy that shrouds the court's proceedings. Now, new documents show that FBI agents are also complaining about the process that the court oversees. These agents say that undue concern about civil liberties makes it too hard to conduct surveillance.

FISA Court Prompted by Nixon's Abuses

The Foreign Intelligence Surveillance Court was supposed to put an end to the kinds of wiretaps that were placed on the phones of enemies of President Nixon, such as Morton Halperin. The White House ordered the tap on Halperin to find out whether the former White House staffer had leaked information about the secret bombing of Cambodia. For nearly two years, Halperin says, the tap picked up everything that he and his family said.

"For example, I was working on the Muskie campaign for president," Halperin recalls. "They picked up calls about that. They picked up many personal calls. My little kids were on the phone and they got those. My wife's phone calls -- everything was intercepted."

There was no need for the White House to obtain court approval. All President Nixon had to do was say that the tap was needed for "national security." The need for reform was clear.

In 1975, Senate hearings helped expose just how lawless the national security apparatus had become. To reform the process, Minnesota Sen. Walter Mondale said the country would have to decide "whether we're going to step beyond the stone line permitting investigative agencies to go beyond matters of law enforcement into matters of so-called 'internal security.'"

Congress agreed that the president needed the ability to wiretap to protect national security, but lawmakers made sure the White House would have to jump through some hoops. Congress created the Foreign Intelligence Surveillance Court to authorize wiretaps against "agents of a foreign power," even if they're not suspected of a crime.

According to Jim Dempsey of the Center for Democracy and Technology, that concept worked well in the context of the Cold War, when these so-called "FISA" warrants were part of the "spy v. spy" world.

"Governments claim reciprocally the power to spy on each other, to gain a leg up in diplomatic matters, in trade negotiations, for military purposes," Dempsey says.

Targets May Never Know They Were Tapped

But now, FISA warrants have become important tools for fighting terrorism as well. The number of FISA search and wiretap warrants has nearly doubled since the attacks of Sept. 11. And the civil libertarians who once viewed the court as a protection against civil liberties now fear it could be used to authorize unwarranted surveillance once again.

Kate Martin of the Center for National Security Studies says that in contrast to wiretaps used in criminal cases, FISA warrants are usually kept secret forever. "If the government investigates a person under FISA and that person turns out to be innocent and he never is indicted as a terrorist or a spy, he will never be told that the government listened to his telephone conversations," Martin says. "[He] will never be told that the government was inside his house."

These concerns grew with the passage of the USA Patriot Act, which helped break down the wall between intelligence and criminal investigations. Civil liberties groups worry that the FBI will favor these FISA warrants, since they are seen as easier to obtain than standard criminal search orders.

FBI Agents Say FISA Warrants Difficult to Obtain

But new documents released under the Freedom of Information Act indicate that, in fact, many FBI agents have found the process of getting these warrants far too difficult. In e-mails and in official reports, these agents complain vociferously about the Office of Intelligence Policy and Review, the division of the Justice Department that takes these cases to the Foreign Intelligence Surveillance Court.

Marcia Hoffman of the Electronic Privacy Information Center fought the FBI in court to obtain the internal FBI documents. She says they "definitely suggest that there is tension within the department."

In the documents, FBI agents generally praise the Patriot Act for making their counter-terror efforts easier. But agents complain about lawyers in the Justice Department whom they accuse of setting up unnecessary hurdles before sending requests to the Foreign Intelligence Surveillance Court.

Agents are particularly frustrated that they cannot get approval to use Section 215 of the Patriot Act, called the "library provision" by Patriot Act critics because it could be used to search library or any other business records.

One FBI e-mail from 2003 complains that the Office of Intelligence Policy and Review (OIPR) "should be embarrassed that the FBI has used this valuable tool to fight terrorism exactly ZERO times."

The e-mail goes on: "The inability of FBI investigators to use this seemingly effective tool has had a direct and clearly adverse impact on our terrorism cases. While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us."

For the Justice Department, this internal debate proves that the system is working. Spokesman Brian Rohrkasse says these documents show that FBI agents are being "held to a very high standard" in complying with procedures put in place to protect civil liberties.

A Move Toward More Transparency

For privacy advocate Marcia Hoffman, the documents do uncover a problem with the court: Because it is so secret, the court remains a mystery to the public, and apparently, to different departments within the government as well.

"The FISA process is complicated and confusing," Hoffman says. "To the extent that the public could know more about it, I think that this certainly is a process that would benefit from some public debate."

Whatever legislation Congress passes this week, it's expected to provide more transparency into the FISA process. The Justice Department will have to submit more information to the court about why it is asking for business records under the so-called "library provision." The court will be required to publish more information about its proceedings and will have to tell Congress more about how often surveillance has been authorized. And the Justice Department will have to limit the amount of information that is gathered and stored in certain searches.

While civil liberties groups welcome those changes, they are still uneasy about the government's growing reliance on this secret surveillance process. Jim Dempsey of the Center for Democracy and Technology is opposed to the government's stated eagerness to use evidence gathered through the FISA process in criminal proceedings.

"If we're going to be using FISA to fight terrorism," Dempsey says, "then we need to fully bring those prosecutions fully within the Bill of Rights, which means the ability to confront evidence against you and to challenge the basis for the government's case."

But those who've worked on terror and espionage cases say that unless these investigations are kept secret, they are useless. Michael Woods, the former head of the FBI's National Security Law Unit, welcomes the FISA reforms before Congress. But he says long-term surveillance cannot be an open process.

"There has to be some capacity of the government to conduct searches and surveillances in this national security context," Woods says. "There are simply situations in which we need to be able to act in that environment of secrecy. Yet we need some kind of supervision."

The court will continue to play that supervisory role, since even critics of the court have not proposed an alternative.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

United States & World Morning Edition
Larry Abramson is NPR's National Security Correspondent. He covers the Pentagon, as well as issues relating to the thousands of vets returning home from the wars in Afghanistan and Iraq.