Secret court is center of controversy

ALLENTOWN, Pa. —  In the late 1980s, the U.S. government undertook an investigation in Bethlehem that was so sensitive to this nation’s foreign affairs it required the approval of a secret court.

So the FBI sought approval from the little-known Foreign Intelligence Surveillance Court to place eavesdropping devices on a Montclair Avenue house. The court granted approval, leading to the prosecution of five people in an international weapons conspiracy.

Today, this court is at the center of the effort to rid the country of terrorists since the Sept. 11 attacks. But due to the court’s secrecy, questions have arisen about possible violations of civil liberties.

“When you have a legal system operating in the dark, it’s ripe for abuse,” said lawyer Cary Hansel of suburban Washington, D.C., who has represented defendants accused of spying.

Congress created the court in 1978 after discovering widespread abuses by intelligence agencies. The court was designed to place checks and balances on the intelligence agencies while not compromising the confidentiality of their investigations.

Located at the Justice Department headquarters, the courtroom looks more like a large vault than a courtroom, according to a former official who’s been inside. That’s to prevent national secrets from being stolen.

“There’s … no question that the greatest fears of the U.S. government are revealed directly or indirectly in this court,” said Jonathan Turley, a law professor who has handled national security cases.

It is not a court in the traditional sense. It has no trials, no defense lawyers, no court crier announcing to the public each morning that court is in session.

Its sole purpose is to secretly review search and surveillance applications from intelligence officials who hunt for spies and terrorists.

Last week, at the urging of Attorney General John Ashcroft, Congress amended the law that governs the court, giving even more flexibility to investigators. President Bush signed the bill Friday.

“This law will give intelligence and law enforcement officials important new tools to fight a present danger,” Bush said.

Until now, intelligence investigators needed separate approval to wiretap each telephone used by a suspect. The new provision allows agents to use “roving wiretaps’’ -- to tap any phone used by a targeted person -- making it more difficult to evade surveillance.

Frederick Baron, a former Justice Department official who helped create the secret court, said roving wiretaps are a good idea.

“If you have a terrorist moving from place to place, the government has to be able to keep up,” he said. “The government has to be able to play man-to-man defense and to be able to move as rapidly as the terrorists are moving.”

To deal with a growing caseload, the new law also expands the court from seven to 11 judges, picked from U.S. district courts across the nation. And it extends the time period that court orders can remain in effect for searches and surveillance.

Rarely does the public learn about surveillance and searches approved by the secret court. That happens only when criminal charges are filed.

And only about 90 times in the court’s history have criminal charges been filed -- less than 1 percent of all applications, a Justice Department official wrote in 1998.

The Bethlehem case is one of those rare instances. It turned out that the FBI found people in the Lehigh Valley working for the Irish Republican Army, trying to develop high-technology weapons.

The suspects wanted to shoot down British helicopters, develop bomb detonators and acquire a long-range rifle. Their goal: to drive the British government from Northern Ireland.

Using evidence gathered from the surveillance and searches, all five defendants received prison terms. One defendant received a 10-year sentence.

Federal intelligence agencies have a nearly perfect record in the Foreign Intelligence Surveillance Court.

Only once since 1978 has one of their applications for a search or surveillance been denied, according to Justice Department records. And in that denial, the court allowed the department to file a revised application, but officials later withdrew the application as moot.

That stellar record -- and the lack of any adversarial proceeding in the court -- makes civil libertarians nervous.

Hansel calls the court a “rubber stamp’’ for federal officials.

“If the judiciary was proactive in protecting people’s rights … we’d see some denials,” he said.

But he doesn’t blame the judges. He considers them to be high caliber.

Instead, he faults the law -- the Foreign Intelligence Surveillance Act -- which he unsuccessfully challenged in federal courts. The law requires a judge to approve surveillance of a person if there’s probable cause to believe the person is an “agent of a foreign power.”

With such a low standard of proof, the court would be required to approve surveillance of an innocent janitor for the Canadian Embassy because, technically, that janitor is an agent of a foreign power.

“That’s an absurd example but it’s an example of how low the standard is,” Hansel said.

He’d prefer the standard be similar to the Fourth Amendment -- that there be probable cause to believe a person has committed a crime or is about to commit a crime.

Much of the apprehension about the court exists because evidence from these searches and wiretaps can be used against people in criminal cases, even though it was not subjected to traditional constitutional scrutiny.

Patrick Poole, former deputy director of the Center for Technology and Policy, a conservative think tank, said it is unlikely the framers of the Constitution, who enacted prohibitions against unreasonable searches, would have approved of the activities of the secret court. When they wrote the Constitution, they carried “fresh reminders of intrusive searches” by the British government.

The court “has become a political weapon against the citizenry, and for the safety and protection of our country its reign must be overthrown,” Poole wrote in 1998.

Turley, a professor at George Washington University Law School, said no evidence has been made public that the court violates civil liberties. But he understands the fears.

“It certainly goes against the grain for a free society to have a secret court,” said Turley, who was in the courtroom as a National Security Agency staffer.

But Baron, who analyzed the court for former Attorney General Janet Reno, said he was impressed with the judges and Justice Department lawyers who review applications.

“I have no reason to believe the judges are reluctant to ask tough questions,” he said.

To ease concerns, several legal experts familiar with the court said more information about the court’s activities should be made public without disclosing information about specific cases.

Turley suggested that an advisory body be created to review cases and report each year whether the court is being used for its original purpose. The panel, which would be sworn to secrecy, would have lawyers and law professors with national security backgrounds, members of Congress and other government officials.

Now, only the number of applications and approvals is required to be made public each year. Turley said other information that could help allay fears would be the number of search versus surveillance approvals, the number of U.S. citizens versus foreign nationals investigated and the number of investigations that involved criminal charges.

Lee Tien, a lawyer for the Electronic Frontier Foundation, a civil liberties organization, said consideration also should be given to eventually making public some of the court’s cases so the court could be scrutinized.

And Poole suggested a “citizen’s advocate” be used at the court to remind the court and intelligence officials to respect people’s civil liberties.

Though there are questions about whether the court respects civil liberties, it was created to protect them. In the 1970s, a congressional committee concluded that the executive branch had allowed the intelligence agencies to stray from their national security missions.

Their activities included conducting improper surveillance on Americans involved in the civil rights and anti-war movements. The questionable conduct also included the Watergate burglaries authorized by the Nixon White House.

“The bill sent a message to the White House that Congress no longer recognized executive branch ‘inherent power’ to violate the privacy of Americans in the name of national security,” according to a 1978 edition of CQ Almanac, which monitors Congress.

All of the nation’s intelligence agencies and the American Civil Liberties Union supported the court’s creation.

When Congress created the court, it also created the Foreign Intelligence Surveillance Court of Review to hear appeals. But the Court of Review has never met. With the Justice Department’s near-perfect batting average in getting applications approved, there has been no need for an appeal.

In 1997, Royce Lamberth, presiding judge of the Foreign Intelligence Surveillance Court, gave a speech about the court to an American Bar Association committee. It was probably the first public talk by one of the court’s judges.

He denied that the court is a rubber stamp.

“I ask questions. I get into the nitty-gritty. I know exactly what’s going to be done and why, and my questions are answered in every case before I approve an application,” he said.

He said “geniuses” were at work in creating the court.

“I don’t know how a better system could be devised and I have not heard one proposed by our critics,” he said. “The age of spying is not over … and the age of terrorism is just dawning, really.”

He also said he was proud to serve on the court.

“One judge told me it was the most fascinating thing he ever did as a judge and I probably would agree with that.”

False information has been spread about the court, perhaps because its proceedings are confidential, giving the court a mystique.

For example, one Web site publication says the court’s judges are anonymous. Another states that the federal government will not acknowledge the court’s existence.

Both statements are false.

The names of its judges are listed in federal government handbooks. And each year, the attorney general issues a public report giving the number of applications the court handled the prior year.

Turley called some of the distortions “grotesque,” like something from a James Bond movie.

“There have been a lot of silly or alarmist things written about the court,’’ he said. “There’s been a tendency to demonize this court.”

Allentown Morning Call librarian Ruth Burns helped with research for this report.