IN THE AFTERMATH OF THE TERRORIST ATTACKS on the World Trade Center and the Pentagon, the Bush administration has proposed a number of legal changes to improve the government’s ability to investigate terrorists. The largest number of these changes involve the Foreign Intelligence Surveillance Act, a statute enacted in 1978 that governs the use of clandestine physical searches and wiretaps against spies and terrorists living in the United States. Although the suggested changes to FISA are probably useful, they are only marginal adjustments to a law that is deeply problematic and needs a serious overhaul. In other words, the administration and Congress seem content to fiddle even after New York has burned. The changes the administration proposes to FISA are designed to bring the law into line with up-to-date technology. In 1978, the communications revolution was still years away; landlines and desk phones were the norm. Today, disposable cell phones and the Internet have transformed how we–and terrorists–communicate. Accordingly, the Justice Department wants to allow the government, for example, to seek a warrant for a “roving” wiretap, applicable to all the phones a given suspect might use; under current law, the FBI must obtain a separate warrant for every line it taps. As Attorney General John Ashcroft has argued, there is no attempt here to change the “underlying” law: “We are not asking the law to expand; just to grow as technology grows.” But it is precisely the underlying law that needs fixing. A bit of history will make this plain. The Foreign Intelligence Surveillance Act was enacted in the wake of newspaper headlines and congressional investigations in the mid 1970s detailing indiscriminate domestic eavesdropping by the American intelligence community. Until then, the constitutional presumption was that when it came to wiretaps and the like, presidents were free to collect intelligence as they thought necessary, both abroad and at home. Wiretaps for criminal investigations were different–since the potential consequences for a citizen’s life and liberty were different. In criminal cases, the Fourth Amendment’s requirement of a warrant and “probable cause” applied. With the passage of FISA, however, Fourth Amendment protections were extended to electronic surveillance for intelligence purposes. Under the act, selected federal judges sit as members of a FISA court and review, in secret, requests by the attorney general for warrants authorizing searches or wiretaps to collect information about foreign intelligence agents or international terrorists. In making his case for a warrant, an attorney general must set out “a statement of facts and circumstances relied upon . . . to justify his belief that the target is an agent of a foreign power” or “engages . . . in international terrorism.” The court may approve the warrant only when “there is probable cause to believe that the target” is an agent or terrorist. Broadly put, wiretaps and the like can no longer be used to collect mere intelligence or be directed against individuals unless the government is already pretty sure its target is an agent or a terrorist. The difficulty with this standard is that for all practical purposes it means the FBI and the Justice Department have to be convinced that someone is dirty before they seek a warrant. The Bureau, then, uses electronic surveillance not so much to track down a spy or terrorist as to confirm that that is what he is. This helps explain why just over 1,000 requests for electronic surveillance or physical searches were made to the court last year and all were granted: By the time an application reaches the FISA court, so rigorous a level of proof has been reached, and so many bureaucratic hurdles have been cleared, that virtually every request deserves to be granted. Most of these warrants are for the purpose of covering foreign intelligence officers and their places of “business.” The rest target only the most obvious candidates. Anyone else–forget it. With the result that we may have missed a chance to prevent the attacks on the World Trade Center and the Pentagon. In August, according to news reports, the FBI asked the Justice Department to seek a FISA warrant to search the computer of a French Moroccan named Zacarias Moussaoui. This man had come to the attention of the Bureau when an instructor at a Minnesota flight school had alerted the Bureau that he was asking for lessons on how to steer a commercial airliner, though not on how to take off or land. Shortly thereafter, French intelligence informed U.S. intelligence that Moussaoui was on a terrorist “watch list” and was suspected of having trained in Afghanistan. Even so, Justice rejected the Bureau’s request for a FISA warrant on the grounds that it lacked “probable cause” to believe Moussaoui was a terrorist. Moussaoui is now being held as a material witness in connection with the terrorist attack and is suspected of being the missing fifth in one of the highjacked planes. Under FISA, moreover, it doesn’t matter how grave a suspected threat may be, how severe the potential loss of life or the potential damage to national security: The standard for getting a warrant remains the same. In the case of the scientist Wen Ho Lee, for example, the codes and databases he downloaded and removed from the nuclear weapons lab in Los Alamos were of such a nature that, according to his supervisor, “in the wrong hands, [they could] change the global strategic balance.” Nevertheless, there were deemed insufficient grounds for tapping Lee’s phone or examining his computer even though he was one of a small group of laboratory employees who (a) had access to the W-88 warhead design information secured by the Chinese, (b) had visited China in the period when apparently Beijing acquired the data, (c) had unusually amicable relations with Chinese scientists visiting the labs, and (d) had previously befriended a scientist working at another weapons lab who himself was under investigation for espionage. For years now, the FBI, the Justice Department, and Congress have told themselves that all is well with FISA. The law provides more than enough latitude to protect the country’s security, they have claimed, while also protecting the civil liberties of American citizens from intrusions by Big Brother. Accordingly, the Justice Department’s response to the events of September 11 has been to dust off proposals that have been knocking around for some time. What all parties avoid is the key question: Should the “criminal standard” reflected in FISA continue to govern the collection of intelligence against terrorists and spies operating in the United States? Does a standard that essentially bans surveillance of politically extreme groups and individuals until they are engaged in criminal activities–a standard that precludes any balancing of constraints on investigators against the relative risks to national security–provide the government the means it needs to protect the country? Until now, civil libertarians on the left and right have dominated this debate, opposing any alteration in the law that might degrade Americans’ civil liberties. Yet one wonders whether the strictures these purists defend–which so manifestly failed to protect the liberties of the Americans killed on September 11–actually served instead to protect the machinations of the terrorists. Gary Schmitt is executive director of the Project for the New American Century. October 15, 2001 – Volume 7, Number 5
