Going Around the FISA Court

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.

Need For Speed

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.

"The optimal way to achieve the necessary speed and agility is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, based on the best available intelligence information." Attorney General Alberto Gonzales said Tuesday before a forum at the Georgetown Law School. "You may have heard about the provision of FISA that allows the president to conduct warrantless surveillance for 15 days following a declaration of war," he said. "That provision shows that Congress knew that warrantless surveillance would be essential in wartime."

FISA Process: Probable Cause

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.

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