Jun 22, 2004

Each and every weekday, 11 federal judges meet in secret in Washington and review FBI and Department of Homeland Security requests for warrants to spy on Americans. And, on average, the court approves seven warrants a day, according to records obtained under the Freedom of Information Act.

But while the numbers of warrants issued are obtainable (only after a long, bureaucratic battle with the Department of Justice), very little else is known about the Foreign Intelligence Surveillance Court, which meets in secure chambers at the Department of Justice Headquarters.

Some privacy groups refer to the court as a “Star Chamber,” a secret coven of judges who hold the future of Americans in their judicial hands. Although the court was created by the Foreign Intelligence Surveillance Act of 1978, it has become recent tool of the Bush Administration to wiretap, follow, investigate and harass Americans under the guise of the war against terrorism.

And the law allows the court to conduct its business in secret, with no oversight from any federal agency or legislative body, including the U.S. Congress.

“This secrecy is unnecessary and allows problems in applying the law to fester,” three U.S. Senators – one Democrat and two Republicans – told the chairman of the Senate Intelligence Committee in a letter last year.

The three – Sen. Patrick Leahy of Vermont, Arlen Specter of Pennsylvania and Charles Grassley of Iowa – say their own investigations have found widespread inaccuracies in warrant applications, breaking of the law by top government attorneys and outright sloppiness in executing the warrants.

“Without oversight and public scrutiny, there is no compelling reason for the court or the Department of Justice to follow the rule of law,” the letter said.

Errors in warrant applications have quadrupled since 2000, the senators found, and one FBI agent made so many repeated mistakes he was barred from ever appearing before the justices again.

Yet even with the mistakes, applications for warrants are routinely rubber-stamped by the court. Records obtained through FOIA show that of 3,887 applications for warrants submitted to the court from 2001-2003, only four were rejected (all in 2003). Before those four rejections in 2003, no application before the court had been rejected among the 12,612 processed between 1979 and 2000.

Before the 2001 terrorist attacks, the court reviewed between 500 and 700 applications per year. Since the attacks, the applications have more than doubled, with a record 1,724 applications submitted in 2003.

Legislation pending in both houses of Congress would grant the Department of Justice and the secret court even more leeway in approving wiretaps and surveillance. The Bush Administration wants the law expanded without any oversight by Congress but an increasing number of Representatives and Senators say they want to know more about the court’s activities.

Last year, the American Bar Association also urged more Congressional oversight, saying it is impossible to determine if the court is following the law or abusing it.

Specter says the record shows widespread abuse.

He and his fellow Senators say the FBI secretly videotaped a meeting even though the court didn’t authorize video, continued to intercept an American’s email even after the warrant expired and continued to tap a wireless phone that no longer belonged to the target and was, in fact, used by an innocent American not connected to the investigation.

They also found the supervisory special agent assigned to terrorism at FBI headquarters admitted under oath that he didn’t know the legal standard for obtaining a warrant from the secret court even though he was the one who approved the applications for the warrants.

In a closed hearing before the Senate Intelligence Committee, a top FBI attorney admitted he also did not know the legal standard to obtain a wiretap under the Foreign Intelligence Surveillance Act but still advised agents on how to prepare the warrant applications.

“Amazing,” Specter says. “Absolutely amazing.”

Specter and Grassley are not the only Republicans questioning the secrecy and abuse of legal power by the Bush Administration. Powerful Indiana Senator Richard Lugar and Virginia’s John Warner have begun to question the actions of the Justice Department under Attorney General John Ashcroft.

“We need answers,” Lugar said recently. “We’re not getting answers. That’s unacceptable.”

© Copyright 2004 by Capitol Hill Blue

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