How Do We Know FISA Is Working?
Every President since Franklin D. Roosevelt has abused the power to use electronic surveillance in national security matters. In an attempt to impose restraints on this power, Congress passed the Foreign Intelligence Surveillance Act of 1978 (FISA) Since the law was signed by President Carter five years ago this month, some stock-taking seems in order.
Like most reform legislation, FISA was passed in the wake of a scandal. When hearings in 1975 before Senator Frank Church's committee investigating intelligence agencies revealed the myriad outrages perpetrated by U.S. intelligence agencies in the name of national security, civil libertarians jumped at the all-too-rare opportunity to impose some controls. The Ford and Carter Administrations agreed to some restrictions for fear that outraged public opinion would impel Congress to impose stricter ones. After almost three years of intensive negotiations involving Congress, both Administrations and civil liberties groups, a compromise was hammered out that allows electronic surveillance in this country for the purpose of gathering in intelligence about foreign powers and foreign agents Under FISA, the Justice Department must obtain an order from one of seven specially designated Federal judges who constitute a special court, authorizing any foreign intelligence electronic surveillance. Hearings on the government's applications are conducted in secret the law forbids eavesdropping on American citizens, except if they are suspected of engaging in intelligence activities for a foreign power that involve violations of criminal statutes.
Since FISA took effect, the judges have issued authorizations for nearly 1, 500 surveillances, but we have little idea of how well the law is working. What we do know however is disquieting.
§ During the nineteen months the Carter Administration used FISA, the government obtained 529 surveillance orders because some of them were extensions of earlier orders, it is difficult to determine how many bugs and taps were installed In those years, how many people were targeted and how many of them were Americans.
§ In 1981 and 1982, the first two years of the Reagan Administration, the number of surveillance orders granted by the judges rose to 433 and 475, respectively. Why? Were the additional taps and bugs used to eavesdrop on American citizens?
§ The judges have not denied a single government application. Is the special court a rubber stamp?
§ Reports of intelligence taps have surfaced in criminal cases, but the courts have done almost nothing to insure that FISA, which establishes looser procedures than are required for criminal prosecutions, is not being used for law enforcement purposes.
Because the special judges' proceedings are secret, it is hard to evaluate how well they are doing their job. The statute called for annual assessments by Congressional intelligence committees for five years to determine how it is working, but Malcolm Wallop says that the Senate Intelligence Committee of which he is a member, has never even "met to consider how FISA has functioned." Members of both the House and Senate committees have stated publicly that few Americans have been targeted, but the history of Congressional oversight in national security and foreign intelligence matters gives one little reason for confidence in those assurances. According to Senator Joseph Biden Jr., who gave some of those assurances, the Senate Intelligence Committee has never examined the special judges' authorizations in individual cases to determine whether the government's applications complied with the statute or whether the surveillance orders were properly issued; the House Intelligence Committee checked what it considered a "representative number'' of authorizations and pronounced itself satisfied.
To shed some light on how the law is functioning, Representative Bob Kastenmeler of the House Judiciary Committee held hearings on June 8 and 9. Testifying were a judge of the special court, a Justice Department representative and Morton Halperin and Mark Lynch of the Center for National Security Studies. Not surprisingly, most of the testimony was not very informative. What information did emerge from the hearings was not reassuring, however.
The Justice Department representative, counsel for intelligence policy Marv Lawton, disclosed little of consequence. Judge George L. Hart Jr. of the Federal District Court for the District of Columbia who served as the special court's first chief judge refused to say very much, but his testimony was still revealing.
Hart's appointment to the court exemplifies one of the main problems with FISA--the judges themselves. The members of the special court were chosen by Chief Justice Warren Burger, who showed a preference for government-oriented judges like Hart and the present chief judge, John Lewis Smith Jr. Morton Halperin, who played a key role in the enactment of FISA pointed out to the House committee that in making his appointments the Chief Justice did not consult as widely as he was expected to.
One indication of the special court's complaisant attitude toward government requests for surveillance orders is the fact that it has authorized physical searches. Shortly after FISA went into effect on October 25, 1978, the Justice Department asked Judge Hart for permission to conduct such a search, even though the act applies only to searches by an "electronic, mechanical or other surveillance device." Hart readily complied as did other special judges to subsequent requests. Upon learning of this expansion of the statute, the Senate Intelligence Committee criticized Hart and the other judges. After "further thought," as he put it, Hart decided he did not have the authority to issue break-in warrants after all. On June 3, 1981, the Justice Department sent him a formal memorandum along those lines, and a week later the judge issued an opinion declining the authority to authorize break-ins, which followed the reasoning of the memorandum.
At the Kastenmeler hearings, Judge Hart refused to answer almost every question of substance on grounds of national security. He showed great deference toward the Justice Department, praising the "dedicated personnel" there for doing a "wonderful job" on their requests for surveillance orders. It seems never to have occurred to him that a member of the department might abuse the law or try to stretch it. He seemed oblivious to the department's record of flagrant surveillance abuses under almost every President since Woodrow Wilson. It was the Justice Department, after all, that authorized the Federal Bureau of Investigation to tap and bug Martin Luther King Jr. That occurred under Attorney General Robert Kennedy, a nominal liberal. But Judge Hart seems to have long had a tolerant attitude toward the department. When Richard Kleindienst came before him in 1974 to be sentenced for having perjured himself in testimony to a Congressional committee about Richard Nixon's effort to influence the department's handling of the I.T.T. antitrust case, Hart imposed a $100 fine and offered the Attorney General heaps of sympathy.
Judge Hart told the committee that the special court exercises no supervision after taps and bugs are installed. Consequently, there is no way of knowing if Federal agents observe the provisions in the act that limit the number of conversations they may overhear, record and disseminate to other Federal and state agencies and that seek to minimize the intrusiveness of a surveillance. Although FISA authorizes the judges on the special court to "assess the Government's compliance with the minimization procedures," Hart said that the court reviews only the Justice Department's general procedures and does not seek to determine if the government has complied with the law in specific surveillances.
Judicial diffidence in the face of the government's national security claims is responsible for another worrisome development. Prior to 1978, when FISA was enacted, criminal defendants would not infrequently discover that they had been overheard on so-called national security wiretaps. The government always claimed that the taps had nothing to do with the criminal case, but in some instances that claim was ludicrous. In the F.B.I. investigation of the Jewish Defense League, for example, a massive "national security" surveillance on every telephone line in the group's office continued for a month after the start of a criminal prosecution for bombing the offices of Amtorg, a Soviet trading firm in New York City, and ended only after the existence of the taps was revealed by the government.
FISA procedures are less stringent than those under the act authorizing law enforcement wiretapping. The enactment of FISA has thus not eliminated the incentive to use intelligence gathering authority improperly to obtain evidence for criminal prosecutions. The few courts that have dealt with this problem have made it so easy for the prosecution to successfully deny misuse of FISA that in this respect the government is under no restraints at all. These courts have made their decisions turn on ascertaining the government's "primary purpose," an elusive standard at best. Since the decisions are made without any participation by the defendants, the judges hear only the government's side, without its being subjected to cross-examination.
Some trial court rulings on such evidence have been simply implausible. In a case involving I.R.A. gunrunning in this country, for example, a Federal court in Brooklyn held that evidence obtained by wiretaps authorized under FISA would be admissible because the government's "primary purpose" in obtaining it had been to collect intelligence information, not to prosecute American supporters of the I.R.A. Yet, for some time before the taps were installed, the U.S. government had been pressed by the governments of Ireland and Great Britain to bring criminal proceedings against Americans who were supplying guns to the I.R.A., and the targets of the surveillance were indeed Indicted and tried.
Not even mentioned at the Kastenmeier hearings was the massive surveillance program carried out by the National Security Agency, which was exposed by the Church committee and discussed in James Bamford's book The Puzzle Palace. In the early 1970s, the N.S.A. participated in President Nixon's war on drugs and worked with the Central Intelligence Agency under Operation Chaos to spy on protesters against the Vietnam War. For thirty years the N.S.A. ran its own surveillance program, known as Operation Shamrock, under which international cable companies turned over all their cable traffic to the agency. The information thus obtained was then disseminated to other Federal agencies, including the Justice Department, which used it in criminal prosecutions. N.S.A. surveillances touched not only suspected drug dealers but also antiwar activists, civil rights workers, Cuban exiles and such prominent Americans as Dr. Benjamin Spock, Joan Baez, Martin Luther King Jr. and Jane Fonda.
After the Church Committee exposed its illegal activity, the agency promised to mend its ways. But by taking advantage of loopholes in FISA, it is still engaging in electronic monitoring. The extent of its activities and whether they involve abuses like those committed in the past are not known, partly because the courts have blocked inquiries into N.S.A. procedures by allowing the government to Invoke the "state secrets" privilege.
Obviously judicial scrutiny and legislative oversight of the administration of FISA are essential if the act is to achieve its purposes. Since there is no requirement in the act that targets of surveillance must be notified in all cases, there is little chance that anyone will challenge the legality of a tap or bug. Judge Hart's testimony, scanty as it was, provides little reassurance about judicial oversight. And Congress has not done what Morton Halperin has urged it to do: "insist upon a right of access, which...the statute clearly contemplated...insist upon seeing the full text of the whole record in some number of cases, randomly selected." More over, the annual reports by the House and Senate intelligence committees are no longer required by the act.
This is not to say there have been abuses. We just don't know. It may well be that most surveillance orders have been permissible under the law. The mere existence of FISA and its provisions for some external checks has probably forestalled some of the more egregious abuses. But the statute, with its elaborate provisions for judicial scrutiny and legislative oversight, was passed not just for easy cases but also for those where a careful look is both appropriate and necessary. As things stand, that hard look is missing.