Note: Our newshawk writes: What follows may seem off topic ... but I think
it is relevant as another assault on the Fourth Amendment. It comes from a
regular feature in Harper's Magazine called "Annotation," where a writer
comments on an authentic document.... This particular commentary was
accompanied by reproductions of two pages from a government document
outlining some procedures for a littleknown court within of the Department
of Justice that seems to enjoy fairly broad authority to spy on people
within the U.S.

UNMASKING THE COURT OF NO APPEAL

A Secret Federal Surveillance Tribunal Takes Exception To The Bill of Rights

A fundamental way the judiciary guarantees that it is properly balancing
individual rights against the needs of the state is by making its
proceedings public. But deep inside the Justice Department is a secret
tribunal that operates under a very different set of rules. The Foreign
Intelligence Surveillance Court, which decides whether intelligence
agencies can wiretap or search the houses of suspected spies. The only
journalist ever allowed access to the court's chamber, I passed through an
electronic door that renders the room completely bugproof. Security
precautions are not only physical; the court has never denied any of the
roughly 10,000 surveillance applications brought by intelligence agencies
and none of those applications has ever been declassified.

One of the few clues to the court's activities are these recently
declassified "minimization procedures," steps agents must follow to prevent
the courtauthorized surveillance from unduly jeopardizing Americans'
privacy rights. Before the Foreign Intelligence Surveillance Act of 1978,
the FBI regularly conducted national security surveillance against
Americans without first getting a court order and, under the infamous
COINTELPRO operation, infiltrated and disrupted leftist and civilrights
groups it deemed subversive. Once these abuses became known, Congress
created the FISA court to inject a measure of judicial protection into such
surveillance. Intelligence agencies must apply to the court for permission
to watch suspected spies and terrorists, and one of the seven federal
judges appointed to the FISA court by the chief justice of the Supreme
Court review the request in the court's highly secure environment. But does
the court with its nonadversarial process, extraordinary power, and
secrecy threaten the very rights it is supposed to safeguard?

The vast majority of FISA applications are uncontroversial requests to
snoop on foreign embassies and dignitaries. But when agents seek to spy on
citizens or resident aliens, unique civilliberties questions are raised,
because FISA applications are granted under lower standards than normal
criminal search warrants. FISA requires only that the government show
probable cause that the target is "an agent of a foreign power" engaged in
covert activities within the U.S. a nebulous definition. And unlike
normal warrants, FISA doesn't require that targets ever be informed of the
surveillance, abrogating their hopes of redress. Civil libertarians fear
these lesser standards are used to harass those with unpopular politics,
such as eight immigrants targeted under FISA for raising money and speaking
for a Marxist PLO faction activities protected under the First Amendment.
Citing a McCarthyera law, the INS arrested and tried to deport the
socalled L.A. Eight for espousing "world communism" yet refused to let
them review the FISA evidence. An appeals court ruled that using secret
evidence violated due process.

Intelligence agents must erase conversations recorded during FISA
surveillance unless they contain real counterintelligence information.
That's just one of the many civilliberties protections built into FISA,
say Justice Department officials, who claim that their perfect winloss
ratio is due to rigorous internal review that leaves FISA judges no cause
to turn down the applications. (Thus the FISA appellate court has never
been called to duty.) Each application, moreover, requires the signature of
either the attorney general or her deputy, and this ensures political
accountability. But is FISA being used as a back door for surveillance in
cases, such as the L.A. Eight, where the government lacks the evidence to
get a normal search warrant?

Still more disturbing is that although FISA applications are granted under
a lower standard than criminal warrants, the fruits of FISA searches can
nonetheless be introduced into criminal cases. As long as the primary
purpose of the surveillance is counterintelligence, not fighting crime,
intelligence agencies can pass along evidence of crimes to lawenforcement
agencies, which can present it in criminal court. (When FBI agents using
FISAauthorized surveillance heard a suspected operative of the Arab
terrorist group Abu Nidal stab his daughter to death for threatening to run
away, for example, they passed the recording on to surprised Missouri
prosecutors.) This might sound like a violation of the Fourth Amendment,
but it's probably constitutional. The Supreme Court has never ruled on
FISA, but several lower courts have, an none has ever found it invalid. The
courts are deferential to the executive branch in nationalsecurity
matters, and that is unlikely to change.

The public, too, generally approves of whatever means it takes to stop
espionage, and the handful of known FISA targets aren't very sympathetic
characters. But what about the other targets? Despite the end of the Cold
War, the court has granted a greater number of warrants each year a
whopping 839 in 1996, far more than the average annual number of federal
criminal wiretap warrants. The court's power has grown, too. Until 1994, it
only granted wiretaps; physical searches required agencies to apply for
warrants through normal channels. Then came the case of CIA double agent
Aldrich Ames. The FISA court had approved electronic surveillance of Ames,
but Janet Reno allowed the FBI to search his house without a warrant.
Seeking reduced charges for his wife, Ames never challenged the search, but
the snafu prompted an expansion of the FISA court's power to grant physical
searches. Counterterrorism laws passed last year created a related court
that makes it easier to deport FISA targets such as the L.A. Eight. The
government assures us that the FISA court is a check on not a return to
COINTELPROera tactics. Given the growing number of classified
applications, however, there is reason to fear that history could repeat
itself.