Seeking Public Record of Landmark Hearing

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."

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