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.