B  U L  L E  T I  N

of the American Society for Information Science and Technology         Vol. 29, No. 3        February/March 2003

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Breaking Developments in Domestic Intelligence
by Lee S. Strickland

Lee S. Strickland is visiting professor in the College of Information Studies at the University of Maryland. He can be reached by e-mail at leess@ucia.gov

On November 18, 2002, the debate over domestic intelligence continued and sharpened when the U.S. Foreign Intelligence Surveillance Court of Review, currently comprising three senior Circuit Court Judges, spoke for the first time in history. In doing so, it overturned the unanimous opinion of the seven Foreign Intelligence Surveillance Court (FISC) judges that earlier this year had rejected the proposal by the Attorney General to allow direct use of the Foreign Intelligence Surveillance Act (FISA) by criminal law enforcement prosecutors. Readers will recall (Bulletin of the American Society for Information Science and Technology, December/January 2003) that the FISC had held that such use would violate the statutory, foreign intelligence basis for FISA orders and suggested that the result would present significant 4th Amendment concerns given the lower standard for such orders – probable cause that the subject is an agent of a foreign power and not probable cause of a crime.

Statutory review: The 52-page Court of Review opinion acknowledges the paradox in the government’s argument – that legally there has never been a limitation on law enforcement use of the FISA but that the USA Patriot Act substantially removed such limitation by changing the intelligence predicate from “primary” to “significant” purpose. And it bravely attempted to resolve that conflict by granting the Attorney General most but not everything requested. In doing so, it interpreted the FISA foreign intelligence predicate as imposing no limits on who may use the authority provided that the information sought is broadly defined as “foreign intelligence information,” that the target is deemed an agent of a foreign power and that the purpose must include something more than solely a national security-related criminal prosecution such as a terrorism-type crime. What this means is that criminal prosecutors have carte blanche use of the FISA provided only that there is a scintilla of separate intelligence interest and that the investigation and prosecution do not focus solely on ordinary or street crime – although noting that crimes like credit card fraud or bank robbery could be inextricably intertwined with foreign intelligence and/or terrorism activity and thus qualify for FISA investigation.

Constitutional review: In addition to construing the FISA in statutory terms, the Court of Review also considers its constitutionality – comparing the FISA with established 4th Amendment law. In doing so, it acknowledges the differences in probable cause standard, the standard of judicial review and the required particularity showing. In the end, however, it avoids a definitive statement by deeming the question “close” and conceding that “a FISA order may not be a warrant contemplated by the Fourth Amendment.”

However, that was not the end of the inquiry given that there are many circumstances where the government may proceed without a warrant and the question in all such circumstances is one of reasonableness. Here, the Court of Review found that the government is presented with “special needs” and recognized as most courts have that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information (although the exact parameters have never been decided by the U.S. Supreme Court). As such, it found that the FISA passes Constitutional muster consistent with other cases that have drawn distinctions between ordinary crime and extraordinary situations and that have led to the approval of even warrantless and suspicionless searches in schools, in apprehending drunk drivers and in securing the national borders.

The implications and the future: In practical terms, Justice Department officials have stated that they expect the pursuit of warrants for secret FISA wiretaps and searches will grow substantially but may not reach "staggering” numbers (USA Today at www.usatoday.com/news/washington/ 2002-11-18-spy-court_x.htm.). It is, therefore, now ever more important for information-centric businesses to adopt the necessary policies and training to meet this certain demand.

In legal terms, many believe that the statutory interpretations draw an arbitrary line at best – why require some scintilla of separate intelligence interest if a legal prosecution satisfies the intelligence purpose? And, many of the legal critics also believe that the Constitutionality was not adequately supported by the Court – how can the “special needs” justification that is typically based on a very limited intrusion applied uniformly to a group of citizens be applied to FISA where the intrusion and application is quite the opposite? Whether the ACLU and other amici will be able to position a further judicial challenge such as an appeal to the U.S. Supreme Court is an open question. What may be more likely is a political challenge given that members of the House and Senate judiciary committees from both parties were and remain concerned as to the civil liberties implications of the USA Patriot Act in general and the FISA authorities in particular.

In policy terms, this opinion draws our focus ever more clearly to the general issue of domestic intelligence collection and, more specifically, the subsequent, unrestrained use and dissemination of that acquired information. Whether a new agency is formed – similar to the United Kingdom’s MI5 – or the FBI mission is reformed is not the critical issue although many question whether another organization or simply improved information focus and sharing would be more effective. The critical question is the role of domestic intelligence in a representative democracy – how we avoid the political abuses of the past yet acquire the needed information to protect citizens’ lives and property. Indeed, the debate on this question is underway in Washington, with the Attorney General’s directive earlier this year on overt surveillance, and is continuing currently in New York with a reconsideration of the decades old Handschu agreement that limited intelligence collection activities – surveillance – to circumstances where “… specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime” and established a three-person oversight board. (See, Handschu v. Special Services Division, New York City Police Department, 605 F. Supp. 1384 (S.D.N.Y. 1985), aff’d., 787 F.2d 828 (2nd Cir., 1986)).

In point of fact, this debate as to domestic intelligence collection is not so clearly black and white as many argue. The reality is that America is at war with a force that knows well how to exploit our liberties for evil and while the government requires the tools to address this threat, our Constitutional values must be vigorously protected by appropriate checks and balances and an informed citizenry. It thus follows that any debate on domestic surveillance presents three issues:

First is the threshold to focus on an individual or entity. Do we require specific external, validated information that an individual poses a specific threat? Do we expand our focus from individual threats to group threats? Do we make a political judgment that an individual or an entire group may be an appropriate target because of their views, statements and associations? Do we agree that although the First Amendment may preclude a criminal prosecution for even violent advocacy of anti-American views, it may still be appropriate to monitor such statements in order to prevent advocacy from developing into actual violence? Do we establish different rules for U.S. citizens and aliens? And how would such rules work effectively when we know that terrorism transcends national origin, religion, ethnicity and even citizenship? Or do we allow law enforcement to conduct ad hoc, even suspicionless surveillance in order to most proactively identify threats? If the threat were not political terrorism but drunk driving or gang activity, would we answer this question differently?

Second is the threshold to retain and disseminate information acquired through domestic surveillance. Do we severely restrict such information to that data which is relevant to terrorism? Or do we understand that the intelligence process proceeds from the collection and subsequent evaluation of many data points where relationships and hence value may not be discerned for some time? In the past several weeks the American Civil Liberties Union has documented in the form of released documents what it describes as a program by the Colorado Springs Police Department to spy on peaceful critics of government policy, such as anti-nuclear activists speaking on college campuses, and disseminate such reports to the Denver police for inclusion in its files. Beyond issues of appropriateness in terms of resource utilization, this vignette well focuses the concern that the line between effective intelligence to protect the nation from threats and unconstitutional intrusion is unfortunately easy to cross.

And third is the mechanism for oversight. There should be little debate that substantially empowered intelligence and law enforcement, necessary to protect the nation from this new threat, presents an inherent danger to our liberty and requires oversight and balance. Indeed, this inherent conflict between security and liberty has been recognized from the founding of our Republic where James Madison in the Federalist Papers cogently argued that “the accumulation of all powers …in the same hands … may justly be pronounced the very definition of tyranny” (No. 47, “The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts,” The New York Packet, Friday, February 1, 1788). Do we adopt a British model that provides for an Intelligence Services Commissioner, who reviews the issuance of intelligence warrants for legality and appropriateness, as well as an external Royal Investigatory Powers Tribunal that is composed of senior members of the legal profession or judiciary and is empowered to hear complaints from any member of the public who is aggrieved by any conduct of the intelligence services? What is certain is that a domestic intelligence process including a FISA court operating in substantial secrecy will not engender the necessary public support for an effective, defensive intelligence function. This is not to suggest, of course, that secrecy in such matters is inappropriate since disclosure of a specific inquiry will inexorably lead to the loss of potentially valuable intelligence. What it does suggest is the need to create organizations and processes where as much openness as possible is an important mission. Without this reasonable balance, the American public and political structures will not provide the necessary degree of support for the intelligence mission.

In sum, the Court of Review judgment is merely another, interim step in the ongoing public and governmental debate between effective national security and our constitutionally based right to liberty – a controversy where the policy and tools by which we collect, use, maintain and disseminate information will be central. It is an issue that will remain very much in the sights of citizens and information professionals in the coming months and years.

Editor’s Note: For related information, please see the report of the debate between the author and Thomas S. Blanton of the National Security Archive at the ASIST 2002 Annual Meeting elsewhere in this issue of the Bulletin.

Where to Find the Opinion

Lexis subscribers may find the opinion at 2002 Extra LEXIS 576; others may access a pdf copy as released by the Court at various sites including www.fas.org/irp/agency/doj/fisa/fiscr111802.html.

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