The historic first argument before the Foreign Intelligence Surveillance Court of Review took place this past Monday morning (one official declared that the argument lasted most of the morning), and apparently Solicitor General Ted Olson was unable to satisfy the court on every point.
At any rate, I'm told, the court directed the Justice Department to file a supplemental brief responding to what one source termed "a number of questions."
The supplemental brief is expected next week; it is unclear if and when we will get a redacted copy. However, the signs are good in that regard, because the Review Court has told Sens. Patrick Leahy, D-Vt., Charles Grassley, R-Iowa, and Arlen Specter, R-Pa., it will make sure they get an unclassified copy of its opinion.
The three had written to Chief Judge Ralph Guy seeking not only the opinion but also an unclassified transcript of Monday's argument. They argued that the transcript, along with unclassified copies of any opinions or orders, "may assist the Congress in exercising appropriate oversight of the Executive Branch, this Article III court and the implementation of the USA PATRIOT Act."
In his reply, dated Sept. 11, Guy promised, "As soon as we have an opinion completed, I will be sure to see that you get an unclassified copy. An unclassified copy of the hearing transcript will be sent at the same time."
An interesting footnote: Guy was the U.S. attorney in Michigan some 30 years ago and oversaw the indictment of three individuals charged with bombing the CIA office in Ann Arbor. The defendants challenged the warrantless surveillance that had been carried out, and ultimately the case was decided by the Supreme Court in a landmark ruling against the government, U.S. vs. U.S. District Court, or sometimes referred to as the Keith case. In that ruling, Justice Lewis Powell essentially invited the Congress to construct legislation that became FISA.
Judge Guy told me, "In some respects, I've got a 30-year history" with these issues. He hastened to add, "No particular expertise, but a lot of history." Guy refused to say anything about this week's hearing but chuckled about the fact that after four years on the review court he finally had something to do. Up till now, he said, it's been "like being ambassador to the lost continent of Atlantis."
Wanted: Sunshine and Oversight
At a lively, if non-newsy hearing before the Senate Judiciary Committee this week, a couple of witnesses called for more light to be shed on the proceedings of both the Review Court and the lower FISA Court.
Syracuse University Professor William Banks lamented how little information is available on the whole system to outsiders. He noted that only bare-bones information is made available, in the form of an annual release of "a simple aggregate number of applications each year with no further detail. Why not report with appropriate breakdowns for electronic surveillance and searches, numbers of targets, numbers of roving wiretaps, how many targets of FISA were prosecuted, how many were U.S. persons? The reports should also be available more often than annually."
It was pointed out that the Review Court is hardly an ordinary appeals court when it hears arguments from only one side of a dispute. Morton Halperin, a witness, told me he wondered why the FISA Court had not hired a lawyer to defend its opinion; Banks and former DOJ official Kenneth Bass made the same point in their prepared testimony. However, the Review Court heard only the government's position. It's true that the ACLU has asked leave to file an amicus brief and is planning to do so in the next week or two. The Review Court has not yet granted permission to file, but did provide procedures to be followed in filing — surely a hopeful sign!
In addition to discussion of the lack of an adversarial process, there seemed to be a general acknowledgement at the Judiciary Committee hearing that there had not been sufficient congressional oversight of the court and the law. Ironically, the legislative history for FISA in 1978 maintained that "the bill provides for close and continuing communications with the congressional committees having jurisdiction …" That kind of communication would not be appropriate in a criminal case, "[b]ut in the absence of notice or frequent judicial review in subsequent prosecution, as with criminal cases, congressional oversight supplies a compensating check."
Sen. Mike DeWine, R-Ohio, expressed concern over "whether the current law allows sufficient congressional oversight." And he worried that unless we understand how it's working, and how the courts are interpreting it, we can't do our constitutional duty. He pointed out that with only two public opinions in more than 20 years, it's impossible to know how the law is working. He echoed the belief of some that in building up a "wall" between foreign intelligence gathering and criminal law enforcement through the years, that the court's interpretation of the law had become "stricter than Congress may have intended or would have allowed." He maintained the fact is that Congress didn't know that interpretation may have threatened our national security.
Back to the Wall
The main theme of the hearing, however, was whether DOJ had gone too far with the March 2002 new AG guidelines that proclaim that the Patriot Act changed FISA so that law enforcement may now become the "primary purpose" of a FISA warrant.
Longtime readers will recall that it was Sen. Dianne Feinstein, D-Calif., who last year proposed the new language demoting intelligence-gathering from being the primary to "a significant" purpose. She seemed quite troubled this week about the attorney general's new interpretation. She recalled that the committee wanted to help the government in situations such as that faced by FBI agents in Minneapolis in the (widely misconstrued) Moussaoui matter. However, she pointed out, nobody ever thought the answer to the problem was to merge Title III criminal warrants with FISA!
She recounted how she had queried Attorney General John Ashcroft about her proposed language, and he had agreed that "a significant purpose" would be an acceptable compromise. She read at length from Webster's the definition of "significant." She said, that was the definition we selected, "to lower the bar slightly, but not entirely." She concluded, "In my view, there has been a skewing, Mr. Chairman, of what we set up." Chairman Leahy agreed. Specter weighed in, asserting the new AG guidelines "would turn the Foreign Intelligence Surveillance Act on its head."
Russ Feingold, D-Wis., the only senator to have voted against the Patriot Act, did his version of I-told-you-so: He noted, "This is just the reason I could not vote for the Patriot Act" because he had feared this very result. DeWine could offer only the weakest support for DOJ, saying he was "not convinced the government is wrong," but agreeing the matter must be settled.
Frankly, it appears that the situation is one in which DOJ believed the pendulum had swung way too far in terms of the wall; that the court and Office of Intelligence Policy Review (OIPR), the DOJ entity that deals most closely with the FISC, had become far too strict in regulating the coordination between law enforcement and intelligence-gathering.
There is some support for that view. I've mentioned in recent weeks that some members of the Judiciary Committee — notably including Chairman Leahy and Specter — believe DOJ was taking too narrow a view of FISA. There was also fascinating testimony this week from Bass, who was the first head of OIPR and remained at its helm during the early years of FISA. He strongly believes that the evolution of the "primary purpose" test in the courts and the creation of the wall — particularly heightened by the 1995 Reno regulations — reflects an erroneous view of the law and court decisions.
Without going into too much detail, he maintains that the term "purpose" has mistakenly in recent years been used to refer to the goal of the surveillance itself rather than the overall investigation. In this regard he echoed one of the most severe critics of DOJ and FBI procedures in recent years, Randy Bellows.
As you may recall, Bellows, a career prosecutor in the Eastern District of Virginia (who most recently prosecuted John Walker Lindh and Robert Hanssen), was chosen by then-Attorney General Janet Reno to conduct a comprehensive investigation of everything the DOJ and the FBI did wrong in the Wen Ho Lee debacle. His massive final report, written in May 2000 but not released in redacted form until December 2001, found much fault with both the DOJ and the FBI in many discrete areas. But one lengthy chapter dealt with "'Primary Purpose' and the Sharing of Intelligence Information Among the FBI, OIPR and the Criminal Division."
Bellows concluded that there had indeed developed "an unduly strict application of the 'primary purpose' rule." In recounting the history of that evolution, Bellows made clear that personality to a truly remarkable extent had ruled both policy and practice.
From 1984 until her death in 1993, OIPR was ruled by the truly legendary Mary Lawton. A chain smoker whose life was her work, Lawton was highly regarded — and/or feared — in both the intelligence and law enforcement communities. When it came to FISA, her word was literally law. During her tenure, according to Bellows, Criminal Division prosecutors were allowed to receive informal briefings from the FBI on foreign counterintelligence matters. Prosecutors knew they shouldn't "direct" the investigation, or use a FISA for law enforcement purposes. And at a certain point, they could determine, "This should go criminal now."
Bellows writes, "This system appears to have worked quite satisfactorily while Mary Lawton was the head of OIPR, both from the perspective of the Criminal Division and from that of the FBI." But when she died, she was replaced by another career prosecutor, Richard Scruggs, who was horrified by the lack of written guidelines governing contacts between prosecutors and FBI agents conducting intelligence investigations. Scruggs told Bellows, "It was a really sloppy operation under Mary."
Scruggs' elevation to chief of OIPR "coincided with issues arising from the investigation of Aldrich Ames." In short, Scruggs was concerned that contacts between the agents and prosecutors "could be used by defense counsel to cast doubt upon the 'primary purpose' of the FISA surveillance and thereby jeopardize the prosecution." He told AG Reno that she might even be called as a witness at trial since she had authorized the questionable searches. He "ginned her up," in the words of one Criminal Division official, Mark Richard. The Ames matter worked out; the former CIA officer pleaded guilty to espionage charges in order to obtain a better deal for his wife. But Reno ordered Scruggs to "make sure this did not happen again."
The result was the 1995 guidelines which all now seem to believe swung the pendulum way too far in the other direction.
What’s 20 Years?
DOJ's witness at the hearing was career prosecutor David Kris, who's considered so valuable in these matters he's actually handled them for both Reno and Ashcroft. Technically, he's an associate deputy attorney general. In both his testimony before the committee, and in the department's appeal brief, which he largely drafted, Kris maintained that under FISA the definition of "foreign intelligence information" includes information needed to protect against espionage and terrorism. And one way to protect is to prosecute; "[p]rosecution is not the only way, but it's one way to protect the country. As a result, information needed as evidence in such a prosecution is itself 'foreign intelligence information' …"
But he may have gone one step too far in quoting Leahy as having supported the idea that, as Leahy put it, "there is no longer a distinction between using FISA for a criminal prosecution and using it to collect foreign intelligence. That was not and is not my belief. Had the Justice Department taken the time to pick up the phone, I would have told them that is not my belief! … We sought to amend FISA to make it a better foreign intelligence tool. But it was not the intent of these amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool."
And when Leahy accusingly said to Kris, you're trying to change 20 years' way of doing things, Kris was in complete agreement: Yes, he replied equably, I do think we're trying to change — and we're pretty overt about it — 20-plus years; I do think that's what the Patriot Act allows.
Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice normally appears every Saturday, but will not appear for the next two weeks.