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Foreign Intelligence Surveillance Act (FISA) faces scrutiny

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Director of National Intelligence, John Negroponte walks in the hallways of the National Security Agency in suburban Fort Mead, Maryland. President Bush met with NSA employees in January after criticism emerged of his domestic surveillance program. (Photo by PAUL J.RICHARDS/AFP/Getty Images)
President Bush has faced a lot of criticism over his administration's domestic spying activities. The chief complaint is that it never sought warrants through the so-called FISA court. But the FISA system itself has faced other criticisms, particularly from defense attorneys whose clients are accused of working with suspected terrorists.

Minneapolis, Minn. — During the 1960s and 1970s, the FBI, CIA and the IRS had tapped phones and spied illegally on political activists, Vietnam War protesters, and civil rights leaders such as Martin Luther King, Jr.

Americans didn't learn of this domestic spying until it was revealed during congressional hearings in the 1970s. The public was incensed, and demanded reform.

Former Vice President Walter Mondale served on the Senate Select Committee on Intelligence Activities, also known as the Church Committee for its chair, Sen. Frank Church. That committee drafted a law known as FISA, which stands for Foreign Intelligence Surveillance Act.

The legislation required intelligence agencies to get FISA court approval before they could spy on Americans suspected of communicating with foreign enemies. Congress passed it in 1978.

Mondale says the law added a check on the president's power to spy under the auspices of national security.

"I think everybody on that committee believed that if you give the executive branch unlimited authority to use these powerful tools, it's just irresistible to people, presidents and the rest, not to do it," said Mondale. "So we wanted to draw a line that would leave the government strong enough to protect us but would prevent these abuses."

The FISA court system is steeped in mystery. Its judges meet secretly; they decide cases secretly; and they view the most highly classified material the government has to offer. That court requires intelligence agencies such as the CIA and FBI get warrants before monitoring phone conversations or emails between Americans and foreigners.

The FISA court reportedly gave government officials permission to tap Mohammed Warsame's phone calls. Court documents allege Warsame, a Minneapolis college student, wired money through a Pakistani bank to people he met at two al-Qaeda training camps. He supposedly taught English to al-Qaeda members, and attended a camp where he listened to lectures and ate with Osama Bin Laden.

Warsame's lawyer David Thomas says the FISA court is unfair to defense attorneys. It does not allow them access to why the government sought the warrant in the first place.

Without that information, he says, a defense lawyer cannot know whether the government's reasons were based on accurate or valid information.

"The only way to determine whether those requirements have been met -- I mean the first step -- is obviously to see what they told the Foreign Intelligence Surveillance court. But that's exactly where you run into the first catch-22," said Thomas.

In traditional courts, defense attorneys have access to how the government justified the search. If the defense finds mistakes, it can challenge the warrant as illegal. If the court agrees, the government cannot use evidence from that search against the defendant.

In terrorism cases such as Warsame's, the attorneys and staff must obtain high security clearances before the case even begins. That is because they view highly sensitive information. Attorneys cannot even share that information with their client, because the client does not have a security clearance.

So it begs the question as to why the same defense attorneys who have high security clearances to argue the case, aren't allowed to see the government's search warrant application.

"I don't think there's a very good answer to that question," said Patricia Bellia is an expert on electronic surveillance and constitutional law who worked in the Department of Justice's Office of Legal Counsel during the Clinton administration. She is currently a professor at Notre Dame Law School. She also clerked for U.S. Supreme Court Justice Sandra Day O'Connor.

Bellia says sometimes even a high security clearance is not high enough to view the applications. She says it is possible that one of the reasons for keeping defense attorneys out of the process is the theory that they cannot look at FISA applications in isolation without compromising other investigations.

"Sometimes the information in the FISA application can be so sensitive in terms of the context it reveals about a far broader investigation, that a defense attorney may come into possession of information that they don't really understand the significance of -- and that it could compromise the broader investigation," Bellia said.

Supporters of the current FISA process say there are two checks on the legality of those searches. First, the FISA court judges whether the government's application is valid. Second, the federal judge in the defendant's criminal trial also has access to that information. The federal judge may choose to allow the defense to see the information.

Nevertheless, other problems have surfaced within the FISA system.

A declassified document from the FBI's counterterrorism division in 2000 cautioned field offices about mistakes related to warrants. Two years later, the FBI told a member of Congress it had instituted new procedures to guard against such mistakes.

Attorney Ken Bass has been concerned about the mistakes on FISA warrants, and testified before Congress with a solution. Bass, a senior lawyer in the Office of Legal Counsel during the Carter administration, also headed the office of Intelligence Policy and Review.

Bass suggests amending the statute to allow an independent attorney to act in the defense counsel's place.

"That lawyer would not know the identity of the target of the surveillance. He would just know the allegations as to why the individual was believed to be an agent," said Bass. " Counsel who are experienced in the area and who know what goes on in the intelligence community may be able to see holes in some of these applications that the judges may not."

There is another wrinkle in Warsame's case. In addition to the FISA surveillance, it is possible that he was also the target of the Bush administration's warrantless searches. If so, it is possible Warsame could become one of the first legal challenges to that program.

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