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Ashcroft Seeks To Boost Power Of Secret Court By EDMUND SANDERS Los Angeles Times Published: Oct 1, 2001 WASHINGTON - Meeting in a windowless, bug- proof chamber deep inside the U.S. Justice Department, a secretive U.S. court wields extraordinary power to approve government requests to listen in on citizens' phone calls or to break in their homes to seize evidence. The court's seven judges just can't seem to say no. Since it was established in 1978, the court has approved thousands of government wiretap and warrant requests - and denied only one. And it's all done in proceedings so classified that even those Americans who are targeted for surveillance have no right to know about it, much less to challenge it. Now, following the Sept. 11 terrorist attacks, the Bush administration is asking Congress to extend the reach of this little-understood federal court, whose specialty is overseeing the government's surveillance of spies, terrorists and agents of foreign powers. But the proposal is threatening to upset the delicate post-Watergate balance between protecting national security and spying on Americans. The court was created by the 1978 Foreign Intelligence Surveillance Act in response to the Nixon administration's practice of using its intelligence-gathering powers to spy on its political enemies. The Bush administration says the need for beefed-up covert surveillance was highlighted by the attacks on New York and the Pentagon. ``Law enforcement needs a strengthened and streamlined ability for our intelligence-gathering abilities to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations,'' Attorney General John Ashcroft told Congress last week. One of the most controversial proposals in Ashcroft's package of antiterrorism legislation would allow the government to use the court for other types of investigations, including criminal cases not chiefly related to gathering foreign intelligence. But would such a revision allow the government to use the law to pursue cases that do not affect national security, thereby dodging constitutional protections ordinarily enjoyed by individuals against surveillance? ``It's a slippery slope,'' said Morton Halperin, a former State Department adviser who helped write FISA, as the law is known, while at the American Civil Liberties Union. ``The law is supposed to be used for intelligence, not for criminal investigations.'' Because FISA wiretaps and warrants must clear a lower legal hurdle than criminal ones, Halperin worries that the FBI might be tempted to use FISA as an ``end run'' around the Fourth Amendment, which restricts surveillance of U.S. citizens in criminal investigations. The low-profile FISA court, whose seven active and semiretired judges are selected by the chief justice of the Supreme Court, has probably been working overtime amid the massive investigation into the attacks in New York, Washington and Pennsylvania. Last year, the court granted more than 1,000 wiretaps and search warrants, double the number of a decade ago, according to the Center for Democracy and Technology, citing Justice Department figures. Today, FISA warrants are nearly as common as wiretaps for all criminal inquiries combined, including drugs, gambling and organized crime. On the one occasion when the FISA court denied a government warrant request, it was because the request fell outside the court's jurisdiction, said David Sobel, attorney for the Electronic Information Privacy Information Center. Critics say the recent surge in FISA warrants suggests they are being used for purposes beyond intelligence- gathering. ``FISA is designed to deal with espionage and terrorism, but there are always concerns that it is being used for other crimes, such as drug conspiracies,'' said Jonathan Turley, a George Washington University law professor who observed FISA proceedings in the 1980s while working for the National Security Agency. But proving misuse is virtually impossible, Turley said, because the proceedings are never disclosed. A FISA request begins at an intelligence or national security agency, but it is the FBI that is responsible for implementing the program. The Justice Department must sign off on every application, which can run as long as 40 to 50 pages. Although it's called a court, the process is less like a trial and more like an administrative hearing. There is no court reporter, and few written records. The only witnesses are government employees; there is no adversarial process. Unlike wiretaps issued under criminal law, FISA applications do not require showing a crime occurred. The government must demonstrate only the target is likely to be an agent of a foreign government or power. FISA may be used only when foreign intelligence gathering is ``the'' purpose of the investigation. The Justice Department wants to change the language so intelligence gathering may be only ``a'' purpose or ``a significant'' purpose. Legal experts say that would open the door to FISA warrants in criminal investigations, as long as intelligence gathering was a component. Congress has rejected Ashcroft's call to approve his proposals this week, indicating it will take a more cautious approach. ``The expansion of FISA is a good idea,'' said Sen. John Edwards, D- N.C., a member of the Senate Intelligence Committee. ``But we are going to have to make sure we are doing it within the limits of the Constitution.'' Subscribe to the Tribune and get two weeks free! <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! 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