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:
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.
Now, says Bowman, the agent "can report the crime he sees," and can talk to prosecutors without jeopardizing the ongoing intelligence collection. More important: there's probably never going to be a realistic chance of prosecuting everybody in a group on terrorism charges, but they "could break up the cell with criminal prosecutions. The goal here is prevention" — preventing the terrorist act, through whatever means. The more options law enforcement has at its disposal, the better the chances of preventing something.
A senior Justice official well-versed in FISA matters agreed that now, "law enforcement can talk to intelligence without fear, without chaperones, without reporting every little jot and tittle to the FISC." And "without fear the coordination will undermine the legitimacy of the FISA and lose the authority."
This official pointed out that in most national security cases there will continue to be both intelligence and law enforcement interests at work. Even once the director decides to prosecute, say, a mole, on whom a FISA is bringing in great evidence, the intelligence officers are still going to want the information. They want to know what's his tradecraft, what kind of information is he selling, is it only to the Russians or also the Chinese? How do they pass info back to him, how do they pay him? Almost all these details are going to be useful for both law enforcement and intelligence — and ultimately they both have the same goal.
The truth is, this official maintained, that "even if we're all jazzed up about prosecuting a guy, we still want to collect the information for intelligence." Prosecution is still just one way to prevent terrorism. Yes, prosecutors can help shape a case; "the law enforcement perspective is the value added." He is completely comfortable shifting an intelligence target into a prosecution mode: is it really any worse to lock somebody up after giving him a lawyer and a fair trial? He is "not bothered at all that we prosecute terrorists rather than killing them."
And it's not likely that a FISA order will be used against a Tim McVeigh, Bonnie & Clyde, or John Gotti: "Ordinary red-blooded American criminals can sleep soundly tonight knowing they're not going to be surveilled under FISA."
In-Depth FISA Training
As if in response to John Martin's admonition, both the FBI and Justice have been crashing plans to set up in-depth training programs on FISA procedures for the agents and prosecutors in the field. Bowman pointed out that the agents who've been doing this all along will not have much problem adjusting; most FISAs come out of the 17 or so of the bureau's largest field offices.
But for the new agents, or the agents new to counterterrorism, or in the smaller field offices, some have not even been accustomed to working with classified materials. Bowman noted, "there's a whole bunch of stuff out there that is not well understood." The logistics of the training, bringing in a couple hundred people, away from their jobs, for several days at a time, can be very difficult. But there are videotapes, and there will be a move toward distance learning.
The information being imparted, too, is "new and somewhat arcane" so you can't try to dump too much on the unsuspecting agent all at once; "otherwise, his eyes will glaze over and you're done." But the lawyers under Bowman in the National Security Law Branch, and those in its newly-created FISA Unit, are "extremely service-oriented," and will be ready to respond to any and all calls from the field.
Similarly, a senior Justice official said plans are being made to train 93 assistant U.S. attorneys, one from each office, so that every office will have at least one assistant well-versed in FISA procedures.
He said experts from the FBI, Criminal Division, and OIPR would most likely conduct training sessions, likely of five days' duration, at the National Advocacy Center in Columbia, S.C.
For some it might be a refresher course — but there's nothing wrong with that.
I Told You and I Told You
Thursday's New York Times led with a piece on how FBI leaders are becoming frustrated with the failure of the rank-and-file to step up to the counterterrorism challenge.
The cynics among us wondered if this was a response to recent criticism of the bureau's efforts against al Qaeda, coupled with suggestions that a separate domestic intelligence agency, similar to Britain's MI-5, be created.
I have obtained a copy of the memo referenced in the story that FBI Director Robert Mueller sent out last week to all FBI employees in which he reminds all hands that the top priority of the bureau is "protect the U.S. from terrorist attack." I'm told the genesis of the memo was at least in part a recent inspection of the Denver field office.
According to one agent, the inspectors discovered "a ton of unaddressed counterterrorism work" at the same time as they learned that Denver was "throwing a lot of resources" at VCMO (Violent Crimes and Major Offenders) and other, lower-priority matters.
Thus the message dated Nov. 15 to all employees reiterating the10 priorities, with counterterrorism clearly No. 1. "By identifying our priorities we obligate the FBI to do certain things. First, we commit to working higher priority matters before lower ones. My expectation is that top priority matters will always be fully staffed before lower priority matters."
The director hastened to point out that his prioritizing doesn't mean that other matters have less value or that those assigned to them make a lesser contribution. But he closed with a forceful reminder that these "priorities of the FBI are universal for the entire organization. ... While every office will have different crime problems that will require varying levels of resources, the FBI has just one set of priorities. They are the priorities for Headquarters. They are the priorities in every Field Office and each Resident Agency. They are the priorities for Legats. These priorities have now been clearly stated and those at the top will be staffed first and worked first throughout the Bureau."
Attorney General to the Rescue
Actually the best defense of the FBI's role in remaining in charge of the counterterrorism battle here at home came not from anyone at the FBI this week, but rather from the attorney general.
At a press conference on the FISA Court of Review opinion, he was asked about the "proposal to create a domestic spying agency." Referring to the FISA ruling that allows more sharing of information between law enforcement and the intelligence community, he said that "frankly, that advances a theme, because we've felt that we need better integration, better communication, cooperation, collaboration, between our law enforcement and intelligence communities. ...
"It seems to me that the establishment of a separate, distinct agency would be to move in the other direction, instead of to integrate and cooperate and communicate ? And so, it would be a surprise to me to have it seriously considered ... [that our efforts] would somehow now be abandoned and that there would be some reversion to a segregated approach where we have this other agency that would be distinct and outside this relatively active now, flowing stream of information and cooperation which has been developed in response to the terrorism which was so damaging to America on September the 11th last year."
Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.