Going Around the FISA Court

Jan. 24, 2006 — -- Behind a red sign that reads Court Chambers and through a series of electronically sealed doors lies a secret court that has approved wiretaps that target terrorists and foreign agents since 1979.

Domestic wiretaps have traditionally been approved by the secretive Foreign Intelligence Surveillance Court located on the sixth floor of the Justice Department. Known as the FISA Court, it has handled the most sensitive domestic wiretaps in national security investigations since it was set up under the 1978 Foreign Intelligence Surveillance Act.

In the wake of the Sept. 11 attacks, President Bush, White House attorneys and lawyers from the Justice Department and National Security Agency authorized a program that allowed wiretaps to be approved without the FISA Court knowing. The FISA Court had approved domestic wiretaps with warrants authorized by a federal judge after reviewing information presented by the FBI and the Justice Department's Office of Intelligence Policy and Review.

Internal Justice Department audits by the inspector general show that FISA warrants take anywhere from hours to weeks to get approved. After the 9/11 attacks, senior intelligence officials pushed for greater speed to intercept terrorist communications.

Bush approved the controversial eavesdropping program, referred to in recent days as the terrorist surveillance program, months after the 9/11 attacks and allowed the National Security Agency to perform warrantless electronic surveillance of suspected al Qaeda subjects in the United States. One reason the program was so important, government lawyers claimed, was the urgent need to intercept al Qaeda communications in the interest of preventing further terrorist attacks.

This intercepted information could come from cell phones or e-mails used by suspected terrorists. Intelligence officials know what channels to listen in on from cell phones and laptop computers that had been recovered from al Qaeda detainees, such as 9/11 mastermind Khalid Shaikh Mohammed.

To get a FISA wiretap the FBI must show probable cause to believe the target of the surveillance is a foreign agent or suspected terrorist. Once the FBI believes it can show probable cause, it has completed the first step of the application to a FISA Court judge.

The application includes three documents, including the request for the wiretap, a certification by the FBI director or executive branch official that states that the information cannot be obtained through normal investigative tactics, and an affidavit from an FBI supervisory special agent that contains a statement of fact on the target of the surveillance.

Once these documents are in order, they are brought to the Justice Department for review by Justice Department attorneys before the application is taken to the FISA Court, where it is presented to a federal judge. Currently 10 federal judges, who serve in judicial districts across the nation, sit on the FISA Court on a rotating basis. One judge, James Robertson, resigned shortly after the NSA program was first reported in the media.

According to government lawyers, some intelligence officials believed they needed greater speed and flexibility than the FISA process allowed. The NSA program was designed to quickly intercept critical al Qaeda communications that warned of an impending attack.

"If those same intelligence officers had to navigate through the FISA process for each of these intercepts," Gonzales said, "that would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system."

Deputy Director of National Intelligence Michael Hayden said earlier in the week: "The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: [It includes] only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates."

According to Justice Department officials, a bulk of the intercepts obtained under the Terrorist Surveillance Project would not fall under the FISA law. Georgetown University law professor David Cole said that's because the Justice Department "wants to do [the program] on less than probable cause."

Despite the establishment of this eavesdropping program, counterterrorism officials continue to aggressively seek wiretaps under the FISA process, increasing the number of FISA applications before the court by 85 percent since 2001. In 2004, the Justice Department applied for 1,758 FISA warrants compared with 934 warrant requests in 2001.

According to sources familiar with the FISA process, judges on the court often request more information or more details about the targeted communication (i.e.: phone or e-mail). In 2004, the court recommended 94 "substantive modifications" to applications presented by the government.

The FBI works closely with the CIA and NSA on designating terrorist suspects it believes should be monitored under the FISA process. Although the FISA procedure has been heavily criticized because of the secrecy of the FISA Court, the recent disclosures of the NSA program have outraged some civil libertarians and privacy advocates. Under the FISA procedure, a judge ultimately makes the decision to approve a wiretap, not an official at the NSA.

The judges currently serving the FISA Court were briefed by NSA and Justice Department officials on the program earlier in the month in a three-hour meeting at the Justice Department.