What the FISA Review Court Ruling Means

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:

Take the hypothetical example of a spy, a mole, in the U.S. intelligence community. He's charged with the transfer of classified documents. But the ultimate penalties depend on the nature of the documents, how highly classified they were. FBI agents could be onto the spy, could have gotten a FISA warrant to watch what he does. Now, they can go to the prosecutor early on, and he can tell them to make sure the documents to which the bad guy has access are highly classified. The agents then wait until the spy puts them in the bag and nab him. So they can structure the case to ensure greater penalties.

Or they can charge more with multiple counts, or choose a venue. The prosecutor noted that "this administration has already moved cases for death penalty purposes." If the FBI is merely following a suspect, they will make the arrest in the most convenient jurisdiction. But now prosecutors could say, for example, let's bring the case in Virginia, where the death penalty might be easier to get.

Or another hypothetical: suppose the FBI has some suspicions about a foreign group, like a Muslim charity. They get the State Department to put the group on its list of "foreign terrorist organizations." Once the group is a designated FTO, you can use FISA procedures to go after them, which of course were unavailable before it was on the list. In that regard, then, the standards have been lowered.

U.S. Attorney for Charlotte, N.C., Robert Conrad gave me his take on how greater cooperation between intelligence agents and prosecutors can increase efficiency.

He prosecuted the case of several defendants accused of having provided material support to the terrorist group Hezbollah. But he pointed out that for about two years the Bureau of Alcohol, Tobacco and Firearms had been pursuing the group for fraud and cigarette smuggling.

The ATF agents were in touch with Conrad's office, but it was difficult to know how to proceed with the case when the actual economic loss from the fraud had been incurred in Michigan, and, moreover, there were obvious potential problems bringing a cigarette smuggling case to a North Carolina jury.

Then finally the FBI brought its FISA case to him, and he learned that it had been pursuing the same group for the much more serious charge of supporting a terrorist group. FBI Deputy General Counsel Bowman agreed that the North Carolina case was an excellent example of how the court's new approach can help. Previously, said Bowman, the agent running the FISA investigation would have to worry about any crimes committed by the target, and whether or how he could pass them on, because it might jeopardize his FISA.

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