What the FISA Review Court Ruling Means

W A S H I N G T O N, Nov. 22 -- Even though the long-anticipated ruling from the Foreign Intelligence Surveillance Court of Review came down several days ago, longtime gentle readers surely knew I would be unable to refrain from commenting.

Actually the amount of misreporting on the Review Court's opinion has been overwhelming. In fact, this ruling does not, repeat not, mean that "new wiretap powers" were approved, or that "surveillance powers" were "expanded."

Rather, the court removed restrictions on sharing information between intelligence-gathering and law enforcement that the court rather breathtakingly proclaimed had never been justified.

That's right: the wall between the two sides that prosecutors have long lamented, the wall so assiduously maintained by rules and regulations and lower court opinions, the wall that Congress thought it was lowering with the Patriot Act but assiduously tried to keep intact — it turns out, it never existed!

OK, so what does it all mean?

I talked to several prosecutors and former prosecutors, and agents, about what difference this will make it practical terms, on the ground, where the agents actually have to do the work of fighting spies and terrorists.

John Martin, who for many years served as the head of the Criminal Division's Internal Security Section and was thus the chief prosecutor for espionage and terrorism, remarked that at last the court "had turned the clock back 20 years to the original intent of the FISA."

He also pointed out that during these 20-plus years, "no court has found any misuse of the statute; no court has reversed a conviction; no court has suggested any prosecutorial misconduct on the part of the government."

He reiterated that the barriers that had been put up had nothing to do with the original law, and everything to do with misinterpretations by former Attorney General Janet Reno's head of the Office of Intelligence Policy Review (OIPR), Richard Scruggs.

Martin said Scruggs' new interpretation during 1994-95 had "completely stifled all the interactions we had developed over the years with the intelligence community and the Bureau." He noted that the problems in the Wen Ho Lee case in the main "all hinged on sharing" — or the lack thereof.

But Martin strongly cautioned that the court's opinion "will not be useful to anyone unless it's properly implemented by the intelligence community, the FBI and OIPR." He said the ruling is the "most crystal-clear guidance that we've had in decades," but now it must be relayed to the agents and lawyers in the field "equally clearly and equally precisely."

A longtime career prosecutor with much experience working with intelligence matters thought the balance struck in the opinion is "just about right." He explained Justice's long deference and diffidence regarding FISA with an analogy. He said the culture at the department has been that when congress finally enacts laws at Justice's request, they must be very cautious in implementing them.

For example, for years, no U.S. Attorney's Office could bring a racketeer influenced and corrupt organization (RICO) case without the approval of a certain official in the criminal division; and his standard was, if we do this and congress finds out about it, they might take the power away from us!

This prosecutor was able to step back just a bit, however, and note that the whole point of having the wall was that "you couldn't get a wiretap on the theory the target was working for China when in fact he was involved in bank robberies." He noted, what the court touts is more cooperation, but "it's that synergy that could lead to abuses." Without the wall, he suggested, there are several ways that prosecutors could conceivably react: