Determining What's Legal in Domestic Spying

The Foreign Intelligence Surveillance Act of 1978 created a legal process for authorizing wiretaps. But the intelligence community has resisted legal restrictions, especially related to the war on terrorism.

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The White House and Congress have long battled over the extent of presidential authority to conduct surveillance for national security purposes. Congress thought it had solved the issue when it passed the Foreign Intelligence Surveillance Act of 1978 and created a legal process for authorizing wiretaps. But, as NPR's Larry Abramson reports, the intelligence community has resisted legal restrictions, especially when it comes to the war on terror.

LARRY ABRAMSON reporting:

When Congress passed the Foreign Intelligence Surveillance Act of 1978, lawmakers figured they'd put a leash on the executive branch and the lawless wiretaps of the 1960s would stop. But, in fact, presidents still wondered whether the commander in chief could do what was needed to protect the country. Ken Bass worked for the Justice Department in the late 1970s, and here's what he told President Carter.

Mr. KEN BASS (US Justice Department): What we advised the president of, consistent with well-established Supreme Court cases, was that if the president ever acted in a way that was contrary to the Foreign Intelligence Surveillance Act, he did so, if you will, at his lowest ebb of executive authority.

ABRAMSON: In other words, if the president ever decided to wiretap without the approval of the Foreign Intelligence Surveillance Court, he would do so at his peril. But other lawyers in the intelligence community remain convinced that the president's power as commander in chief could be used to seek a wiretap on people within the United States without a warrant. Jeffrey Smith, general counsel for the CIA in the mid-1990s, says he would have told the president unauthorized wiretaps may be unpopular but they're not clearly illegal.

Mr. JEFFREY SMITH (General Counsel, CIA): If somebody finds about it, if we are sued, the Supreme Court may rule against you. But, at the moment, the Supreme Court has not said you do not have this power.

ABRAMSON: The administration's decision to authorize these wiretaps came just months after Congress passed the USA Patriot Act in 2001. That anti-terror law lowered the threshold for getting wiretap permission from the Foreign Intelligence Surveillance Court.

The FBI and the National Security Agency go to that court to verify that the target of an investigation is, in fact, an agent of a foreign power. That's not always easy to determine, especially in a fast-moving terror investigation. Michael Woods, former head of the FBI's National Security Law Unit, says the bureau often felt the NSA moved too cautiously in these cases.

Mr. MICHAEL WOODS (Former Head, National Security Law Unit): Where there was indications that there might be useful information in NSA holdings and that the legal hurdles at that time to get that information into the hands of the FBI for domestic use were viewed as too high.

ABRAMSON: Conducting warrantless wiretaps immediately after the domestic spying scandals of the 1960s would have created a political firestorm, but now the administration's eagerness to fight the so-called war on terror seems to have changed the calculus. The law does envision exceptions for wartime. Jim Dempsey of the Center for Democracy and Technology says the FISA statute allows the president to wiretap without court permission for up to two weeks in time of war.

Mr. JIM DEMPSEY (Center for Democracy and Technology): But this went on for years and there's really no justification not to go to the court and not to use that kind of check and balance week after week, year after year.

ABRAMSON: The administration may have been reluctant to appear in court to justify these wiretaps, but now the White House will have to explain them before Congress. Senate Judiciary Chairman Arlen Specter says he wants to hold hearings on the issue as soon as possible.

BLOCK: That's NPR's Larry Abramson, who's here with us in the studio.

And, Larry, we just heard Jim Dempsey talking about there not being a reason not to go to the court. How cumbersome is it to go to the FISA courts to get a warrant for this kind of eavesdropping?

ABRAMSON: Well, I think a lot of FBI agents feel like it is fairly cumbersome, particularly in cases where, you know, they know they have somebody who is a spy or a suspected terrorist and they're simply trying to confirm that. There is a division at the Justice Department called the Office of Intelligence and Policy Review, and recent FBI documents that were released show that the process can be quite difficult for FBI agents and that FBI agents have complained loudly about the difficulty they've had in getting warrants, particularly under the Patriot Act. You've heard about the library provisions, Section 215, that allows the FBI to get business records. Many agents have complained that they would like to use this provision more often but they can't get past this division of the Justice Department that demands certain proof that they're dealing with an agent of a foreign power.

On the other hand, I think that most civil liberties groups say this is not as demanding a standard as you face in criminal court, where you have to show that there's probable cause to believe that a crime is being committed and that these warrants are easier to get. And that's why they've argued for keeping a high standard for getting these warrants in the Patriot Act, which is before the Senate right now.

BLOCK: Now if you were a target of one of these wiretaps, say, and you wanted to challenge that in court, how would go about doing that?

ABRAMSON: Well, it wouldn't be easy because you're not supposed to know about it. This is a secret court. It's a secret process. Of course, you don't want a terrorist knowing that you're investigating him, and these taps can go on for years without any notice to the target. The only way you would find out that you were a target of a FISA tap is if somehow it was introduced in court against you. In most cases, criminal charges are not brought against these people. You now, the case of Sami Al-Arian in Florida, who was recently found not guilty on a bunch of terror charges, they did introduce FISA-related wiretaps in his case. But usually people just don't know that this sort of thing is going on about them and so they'd have no way to know that they should be filing a lawsuit.

BLOCK: And, again, at least according to The New York Times report, there were hundreds of these ongoing at any given time.

ABRAMSON: That's right. I mean, this was not--as some people I talked to said, this was not an occasional exception where they knew they had, you know, Osama bin Laden or somebody under surveillance. This appeared to be a programmatic use of these warrantless searches and a clear feeling that they did not have to observe this particular law in order to fight the war on terror.

BLOCK: NPR's Larry Abramson, thanks very much.

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