August 23, 2002

2:43 PM

Secret Court Rebuffs Ashcroft: A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance Act (FISA) alleges that Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

Maybe the system actually works.

Thanks to Dack for the link.
posted by mark13 (10 comments total)

How do you figure? It can't work without actual consequences.
posted by rushmc at 4:11 PM on August 23, 2002

The consequences are that we build a more secure nation without obliterating constitutional freedoms, and that USA Patriot Act does not trash the 4th amendment, and that Ashcroft needs to take a chill pill.

Of course, there's always the appeal.
posted by jellybuzz at 4:33 PM on August 23, 2002

Same newspaper...editorial page.

"Attorney General John Ashcroft is not blamed for these transgressions. Most or all of the misstatements appear to have taken place during the prior administration and the court notes that the department and bureau wrote new rules last year to ensure the accuracy of FISA applications. The judges, moreover, appear to have no complaints about the quality of applications since September 11."
posted by revbrian at 4:53 PM on August 23, 2002

rushmc I'm not sure what your statement about consequences means, but I can be dense sometimes. Care to elaborate further? I do think that it is interesting that the FISA Court, which seemed to rubber stamp every request for a warrant brought before it except for one (and there were more than 10,000 of those), issues its first public opinion in 23 years. The court is attempting to continue, as required under their mandated jurisdiction, as a place were requests for the gathering of foreign intelligence information remains their focus. Before the USPATRIOT Act, that may have been their primary focus. Under the Act, it is still required that foreign intelligence information be a significant part of any investigation where surveillance is requested.

Revbrian, the order goes beyond the deficiencies in warrants and sets a new administrative rule to be followed:

Rule 11. Criminal Investigation in FISA Cases

All FISA applications shall include informative descriptions of any ongoing criminal investigations of FISA targes, as well as the substance of any consultations between the FBI and criminal prosecutors at the Department of Justice or a United States Attorney's Office.

The opinion explains the reasons for this pretty well. The editorial focuses only on one small part of the opinion.
posted by bragadocchio at 5:28 PM on August 23, 2002

The FPP would be more accurate if it read "Secret court rebukes Janet Reno."
posted by MattD at 5:46 PM on August 23, 2002

rushmc I'm not sure what your statement about consequences means, but I can be dense sometimes. Care to elaborate further?

I mean that it's one thing for a court to tell the executive branch to stop doing something, but something else entirely for the exective branch to acknowledge the court's jurisdiction over them and actually stop. As we've seen recently, this administration seems to feel little responsibility to abide by court rulings against it. So if the courts tell them to do something, they refuse, and nothing happens...no consequences, so no change.
posted by rushmc at 5:58 PM on August 23, 2002

There's an institutional component here, and a political one. The institutional is that the FBI has consistently tried to push the boundaries for years.

The first political aspect is that this may have been exacerbated by the uncooperative relationship between FBI Director Freeh and Attorney General Reno. (This probably created inter-agency friction that arguably also contributed to later intelligence failures.)

The second political aspect is that the FISA had been putting its foot down. The argument that they rubber-stamped every application but one must be tempered by the judicial standard at work, which I think is merely "reasonable suspicion". We don't know how many proposals were not brought before the court in an attempt to stay within the boundaries. Yes, that requires believing that at least some in the FBI and Justice Department are honest Americans who believe in the law, but I'm sure that fits at least some. Given the risks to civil liberties, and the FBI's sordid history under prior management, I'd be much more concerned if the FISA court were rejecting warrants willy-nilly. To the contrary, the record as indicated suggests professionalism in the vast majority of cases.

The third political aspect is the USA PATRIOT act, and Ashcroft's defense of its new provisions, as noted by bragadocchio -- and where rushmc's point comes in, if I interpret it aright. The concern is that the FISA appeals court will overturn the ruling from May which has just been made public, thus opening up the rules to a broader interpretation as Justice is seeking. If that happens, I believe procedurally the memo is nullified, and we'll have to wait for a future criminal case, with an actual defendant, to be appealed.

The FISA appeals court has, they say, never been used in 23 years. Its makeup, however, is essentially drawn from the same pool of federal judges. My hunch is that they'll have similar feelings about the situation and rule accordingly in favor of their fellow judges. This would set up a situation where Justice would have to appeal to the Supreme Court (unless I'm mistaken, that's the only level higher than FISA Appeals). The Rehnquist court is somewhat pro law'n'order but also skeptical of federal power. I've always expected that should they see USA PATRIOT law in their court, there are quite a few provisions that would get chewed up along the way.
posted by dhartung at 6:11 PM on August 23, 2002

Good points, rushmc and dhartung.

You both have me wondering if the release of the memo as an unclassified document might have been related to those issues. Would the Court present the new rule in that manner to try to increase the likelihood that it would be followed, or to draw attention to any possible appeal of their decision? The rule does present a greater hurdle than just the reasonable suspicion standard that FISA follows, by requiring more information. It allows the judges to make a more informed decision, and provides a filtering mechanism for those who would use the Court to circumvent a probable cause standard in another court. Did they hope to also involve the legislature and the court of public opinion? I could be barking up the wrong tree. What other reasons might there be for it's public release?
posted by bragadocchio at 6:58 PM on August 23, 2002

Attorney General John Ashcroft is not blamed for these transgressions. Most or all of the misstatements appear to have taken place during the prior administration.

True, in fact 74 of the 75 happened under Janet Reno.

Ashcroft brought them to the attention of the Court, and was thanked for doing so. Nice Spin on this one.
posted by Steve_at_Linnwood at 9:28 PM on August 23, 2002

Steve, you can't ignore the fact that Ashcroft wants the administrative freedom to mix intelligence and criminal investigations, which is precisely what the court has chosen to block, "reinstating the bright line" between them. It is definitely a rebuke to Ashcroft. It's not 100% clear to me that Ashcroft's desired policy and the Congressional law fully conform with one another.

brag: The release of the opinion was through the Judiciary committee, with bipartisan support (e.g. Grassley, Leahy). The timing is clearly related to the choice of Justice to appeal the decision.

rush: The government is granted the right to appeal in the FISA law, which right they are exercising. I'm not certain what you would view as "consequences" in this instance. The court has already told the FBI to clean up its act, and apparently it has done so. If the memo is upheld, and not appealed, the administration won't be able to get the warrants it wants. The law already grants them the ability to do secret surveillance; the FISA court isn't about to shut itself down. That's in the hands of Congress.
posted by dhartung at 10:35 PM on August 23, 2002