[In 1978] Congress set up a separate court outside the framework of the constitution whose sole purpose was to receive applications from government agencies seeking authority to intercept foreign intelligence communications. Appropriately named the Foreign Intelligence Surveillance Court, it has the power of a court, but in practice is a court in name only. It doesn't sit in a courthouse. It meets in a windowless office on the Sixth floor of the Justice Department and receives applications for electronic surveillance from Justice Department attorneys who appear in secret proceedings without opposition. Its proceedings are secret and its office has guards posted at the door. It issues no opinions and is made up of seven federal judges who are hand picked by the Chief Justice (himself a former Justice Department attorney who knows a team player when he sees one). Of the first 10,000 applications for authority to wiretap, not one was refused.

[The FISA court] authorized 11,950 wiretaps in its first 21 years, more wiretaps over the same period of time than all the other federal district courts in the United States combined. These numbers are just the tip of the civil liberties nightmare it has become.

Initially it was believed that the Court's authority would be restricted to the gathering of foreign intelligence, presumably so effective countermeasures could be taken against diplomatic missions, etc. . . . There have been no less than 90 criminal cases brought on the basis of FISA information--Lynne Stewart's case being just the last of them. How does this happen? It's frighteningly simple. All that's required is for the attorney general to certify in a one-page form that he/she wishes to use the information in a criminal proceeding. That's it. Coupled with that is another provision authorizing the attorney general to certify that the information on which the FISA application was based should be kept from defense counsel "in the national interest." In each of the 90 criminal cases the attorney general did the double certification, thereby precluding any meaningful challenge to the actions taken by the FISA court. Defense counsel can't litigate what they can't see. Thus, using FISA secrecy as a shield, federal prosecutors opt for FISA investigations and prosecutions over one sin which defense counsel can mount a legal challenge to the application process. One can see how FISA became the favored weapon in the prosecution's arsenal, effectively negating the accused's Sixth Amendment right to effective assistance of counsel as well as his/her Fourth Amendment protection against unconstitutional searches.

At the outset it was also believed that the authority of the FISA court was very limited since it could only issue warrants for the purpose of gathering foreign intelligence. Foreign intelligence, it turns out, is a very expansive and flexible concept. The FISA court authorized the wiretapping of CISPES under the guise of gathering foreign intelligence. It seems that anything that smacks of "foreign" qualifies. Moreover, the federal courts have approved FISA warrants where the government's justification was that it was investigating a criminal case while at the same time gathering foreign intelligence. They reasoned that although foreign intelligence must be a "primary purpose" it need not necessarily be the only purpose. In a case I will discuss in a moment two Americans are serving 21 1/2 years and 17 years, respectively, as a result of a so-called "dual purpose" FISA investigation. Now the USA PATRIOT Act has greatly expanded FISA's reach by eliminating the "primary purpose" requirement altogether and replacing it with a more lenient standard: that of having foreign intelligence as a "significant factor" in the application process. In recognition of the newly expanded authority Congress enlarged the Court from 7 to 11 judges. If CISPES became a target under the old standard any group or organization that opposes American foreign policy could conceivably become a target under the new.

Moreover, FISA, as amended by the new USA PATRIOT Act, erases the "wall" between law enforcement and the intelligence community, allowing the sharing of "foreign intelligence information" gathered by the FBI with the CIA, NSA and other intelligence agencies, including those in the Pentagon. The Nixon administration tried to get the authority to build this super law enforcement/intelligence network but Congress rejected it.

Added to this is the newly announced mission of the Justice Department under Ashcroft. It used to be, for better or worse, that the Department was involved in the investigation and prosecution of crimes which had occurred. Now, the new mission is to deter crimes before they are committed, which means these new, expanded resources and powers will be directed at investigating those groups and individuals who are perceived by Justice to be potential wrongdoers--those whose interests touch on foreign issues as a "significant factor" in their work. I leave it to your imagination to guess who the likely targets might be, but the immigrant community and activists engaged in opposition to U.S. foreign policy are sure to be on the list. While it is important that we understand these new threats, it is essential that they not inhibit us from opposing the current policies of this administration. History teaches that vigorous and widespread opposition and resistance carries its own protection. Moreover, the loss of basic freedoms to an abusive and encroaching Big Brother cannot help but build the movement.

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