What the secret court decision means for citizens

By LANCE GAY Scripps Howard News Service November 19, 2002

- Over the protests of civil libertarians, the courts are clearing the way for a massive expansion of police powers to wiretap and conduct surveillance on people inside the United States under the name of the war against terrorism.

Ruling for the first time in its history, the secret Foreign Intelligence Surveillance Court of Review this week gave the green light to police listening in on phone calls, reading e-mails and conducting "no-knock" clandestine searches of Americans' homes and offices to collect criminal intelligence on terrorist activities. The ruling came in response to a warrant turned down by a lower court.

There are only hints of how extensive this sort of snooping might be, and the public probably will never know how federal agencies are using the expanded powers that Congress gave the FBI in the wake of the Sept. 11 attacks in New York and Washington. The warrants for the snooping are issued in secret, and agents keep secret what they find and hear.

Many people who will come under government scrutiny may never know about it. The scope of government activity could emerge in court suits, but those instances are likely to be rare because government agencies are collecting intelligence - not evidence. Normal legal challenges to evidence collected by surveillance, which provide a wealth of information on police activities, aren't likely to crop up.

Here in question and answer form is a discussion of the issues raised by defenders and opponents of the process.

Q: Is government snooping constitutional?

A: Yes. The Supreme Court has held that police can conduct clandestine surveillance under warrants issued by courts without violating Fourth Amendment restrictions on search and seizure. In 1968, Congress set up the procedure police follow in domestic criminal investigations. A decade later, in response to Cold War spying, lawmakers passed the Foreign Intelligence Surveillance Act, which created a special court that sits in secret to hear requests for warrants when the government's "primary purpose" is tracking foreign agents. Last year, under the USA Patriot Act, Congress expanded the scope of that secret court, saying the government only had to show a "significant purpose" of the snooping involved foreign intelligence matters to obtain the warrants.

Q: How much snooping is going on?

A: The government made 934 requests for warrants from the secret court last year, but some requests could involve multiple individuals. Until this year, the court had never rejected a government request for a warrant to snoop.

Q: What sort of surveillance is approved?

A: The secret court can approve clandestine break-ins of people's homes; monitor how suspects use the Internet and the sites they visit; and use "roving warrants" to cover various phones suspects might use. The USA Patriot Act also allows police to collect financial, medical and library records of those targeted.

Q: Can material gathered under warrants issued by the special court later be used in a criminal trial?

A: Yes. Sen. Orrin Hatch, R-Utah, said the purpose of the USA Patriot Act was to break down a division between criminal and foreign intelligence surveillance activities, and enable police to carry out clandestine surveillance even of criminal suspects. This week's ruling by the special Foreign Intelligence Surveillance appeals court upholds using secret investigations in probes of criminal violations.

Q: How does the secret court differ from a normal court?

A: Under regular procedures, police have to show they have "probable cause" of a crime being committed before they can obtain a court warrant to snoop on individuals. Under these procedures courts also monitor what the police are doing to ensure any evidence collected is directly connected with what the government said it wanted. But under the special FISA court, warrants are sought from the secret court only under certification of Attorney General John Ashcroft that the warrant is needed. Unlike regular courts, the secret court does not supervise what data the government is collecting.

Q: Doesn't this give an awful lot of power to executive agencies?

A: That's a central complaint of civil libertarians, who contend the attorney general has been given extraordinary powers. Brooklyn Law School professor Susan Herman said Congress and the judiciary have very little role in the process, and the surveillance laws have transferred extraordinary powers to the executive branch.

Q: Can innocent Americans not a target of a government terrorist investigation be brought under scrutiny of a FISA warrant?

A: Yes. It's already happened. The Justice Department this year told Congress of a case where a target of a FISA investigation unexpectedly changed his cell phone number, and the conversations of the cell phone number's new owner were collected. Because the new owner of the number spoke in a foreign language, the intercepted conversations were kept. Innocent people could also be involved if the target of a clandestine probe moved around the country, using phones in homes of people he visited. The FBI could continue to collect and scrutinize conversations over those phones, even after the target left.

Q: Will Americans know they are being spied on?

A: No. The secret system is set up to prevent tipping off anybody that is under investigation. Congress could determine the extent of snooping in oversight hearings, but that's unlikely in the midst of a war. Historians may be able to judge from declassified records the extent of government surveillance, but that won't happen for 30 years or more.

On the Net: www.usdoj.gov

www.aclu.org

-- Anonymous, December 01, 2002

Answers

yeah, it sucks.

But if the feds are listening and watching there must be some reason. It's not like they have enough people to spy on every citizen.

-- Anonymous, December 01, 2002

But if the feds are listening and watching there must be some reason.

That's a foot on a real slippery slope, Barefoot.

The camel's nose is under the tent.

Surely you're not saying, "If I'm not doing wrong, why should I be concerned"?

Sure hope not.

-- Anonymous, December 01, 2002