RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. I'm Renee Montagne.
STEVE INSKEEP, host:
And I'm Steve Inskeep.
Congress votes this week on legislation to make permanent nearly all of the USA Patriot Act. One focus of that national security legislation is a little-known institution that has grown in power since the 9/11 attacks. It's the Foreign Intelligence Surveillance Court. The court authorizes surveillance of suspected spies and terrorists. It is viewed with great suspicion by civil liberties groups concerned about the secrecy that surrounds the court's proceedings. Now new documents show that FBI agents are also complaining about the process that the court oversees. The agents say undue concern about civil liberties makes it too hard to conduct surveillance. NPR's Larry Abramson reports.
LARRY ABRAMSON reporting:
The Foreign Intelligence Surveillance Court was supposed to put an end to the kinds of wiretaps that were placed on the phones of Nixon enemies like Morton Halperin. The White House ordered the taps to find out whether the former White House staffer had leaked information about the secret bombing of Cambodia. For nearly two years, Halperin says, the taps picked up everything that he and his family said.
Mr. MORTON HALPERIN (Former White House Staffer): I mean, for example, I was working on the Muskie campaign for president. They picked up calls about that. They picked up many personal calls. My little kids were on the phone and they got those. My wife's phone calls, everything was intercepted.
ABRAMSON: There was no need to get court approval. All President Nixon had to do was say that the eavesdropping was needed for national security. The need for reform was clear.
(Soundbite of congressional hearing)
Unidentified Man: Our witness this morning is the Honorable Edward H. Levi, the attorney general of the United States.
ABRAMSON: In 1975, hearings led by Senator Frank Church helped expose just how lawless the national security apparatus had become. To reform the process, Minnesota Senator Walter Mondale said the country would have to answer a tough question.
(Soundbite of congressional hearing)
Senator WALTER MONDALE (Democrat, Minnesota): Whether we're going to step beyond the stone line permitting investigative agencies to go beyond matters of law enforcement into matters of so-called, quote, "internal security."
ABRAMSON: Congress agreed the president must be able to wiretap in order to protect national security, but lawmakers made sure the White House would have to jump through some hoops. They created a court like no other, the Foreign Intelligence Surveillance Court. The court authorizes wiretaps against agents of a foreign power even if they're not suspected of a crime. According to Jim Dempsey of the Center for Democracy & Technology, that concept worked well in the context of the Cold War, when the so-called FISA warrants were part of the spy-vs.-spy world.
Mr. JIM DEMPSEY (Center for Democracy & Technology): Governments claim reciprocally the power to spy on each other to gain a leg up in diplomatic matters, in trade negotiations, for military purposes.
ABRAMSON: But now, FISA warrants have become important tools for fighting terrorism as well. The number of FISA search and wiretap warrants has nearly doubled since 9/11, and the civil libertarians, who once viewed the court as a protection against civil liberties abuse, now fear it could be used to authorize unwarranted surveillance once again. Kate Martin of the Center for National Security Studies says that in contrast to wiretaps used in criminal cases, FISA warrants are usually kept secret forever.
Ms. KATE MARTIN (Center for National Security Studies): If the government investigates a person under FISA and that person turns out to be innocent and he never is indicted as a terrorist or a spy, he will never be told that the government listened to his telephone conversations, has tapes of his telephone conversations, will never be told that the government was inside his house.
ABRAMSON: These concerns grew with the passage of the USA Patriot Act, which helped break down the wall between intelligence and criminal investigations. Civil liberties groups worry that the FBI will now favor these FISA warrants, since they're seen as being easier to get than standard criminal search orders. But new documents released under the Freedom of Information Act indicate that in fact, many FBI agents have found the process of getting these FISA warrants too difficult. In e-mails and in official reports, these agents complain vociferously about the Office of Intelligence Policy and Review, the division of the Justice Department that takes these cases to the Foreign Intelligence Surveillance Court.
Ms. MARCIA HOFMANN (Electronic Privacy Information Center): These documents definitely suggest that there is tension within the department.
ABRAMSON: Marcia Hofmann of the Electronic Privacy Information Center fought the FBI in court to get these documents. In them, FBI agents generally praised the USA Patriot Act for making their counterterror efforts easier, but they complain about lawyers in the Justice Department who they accuse of setting up unnecessary hurdles before sending requests to the Foreign Intelligence Surveillance Court. They are particularly frustrated that they cannot get approval to use Section 215 of the Patriot Act, called the library provision by Patriot Act critics, because it could be used to search library or any other business records. One FBI e-mail from 2003 howls that the Office of Intelligence Policy and Review, or OIPR, quote, "should be embarrassed that the FBI has used this valuable tool to fight terrorism exactly zero times." The e-mail goes on, "The inability of FBI investigators to use this seemingly effective tool has had a direct and clearly adverse impact on our terrorism cases. While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us," unquote.
For the Justice Department, this internal debate proves that the system is working. Spokesman Brian Roehrkasse says these documents show...
Mr. BRIAN ROEHRKASSE (Justice Department Spokesman): No matter how difficult or time-consuming the process, that the FBI special agents are held to a very high standard in complying with the necessary process and procedures that are put in place in order to protect civil rights and civil liberties.
ABRAMSON: For privacy advocate Marcia Hofmann, these documents do uncover a problem with the court. Because it is so secret, the court remains a mystery to the public and apparently to different departments within the government as well.
Ms. HOFMANN: The FISA process is complicated and confusing, and to the extent that the public could know more about it, you know, I think that this certainly is a process that would benefit from some public debate.
ABRAMSON: Whatever legislation Congress passes this week, it's expected to provide more transparency into the FISA process. The Justice Department will have to submit more information to the court about why it's asking for business records under the so-called library provision. The court will be required to publish more information about its proceedings and will have to tell Congress more about how often surveillance has been authorized. And the Justice Department will have to limit the amount of information that's gathered and stored in certain searches.
While civil liberties groups welcome these changes, they are still uneasy about the government's growing reliance on this secret surveillance process. Jim Dempsey of the Center for Democracy & Technology is opposed to the government's stated eagerness to use evidence gathered through the FISA process in criminal proceedings.
Mr. DEMPSEY: And if we're going to be using FISA to fight terrorism, then we need to fully bring those prosecutions fully within the Bill of Rights, which means the ability to confront evidence against you and to challenge the basis for the government's case.
ABRAMSON: But those who've worked on terror and espionage cases say these investigations must be secret, or else they are useless. Michael Woods is former head of the FBI's national security law unit. Now in the private sector, Woods welcomes the FISA reforms before Congress, but he says long-term surveillance cannot be a completely open process.
Mr. MICHAEL WOODS (Former FBI Official): There has to be some capacity of the government to conduct searches and surveillances in this national security context. There are simply situations in which we need to be able to act in that environment of secrecy. Yet we need some kind of supervision.
ABRAMSON: The court will continue to play that role, since even critics of the court's role haven't really proposed any alternative.
Larry Abramson, NPR News, Washington.
INSKEEP: You can read what FBI agents have to say about surveillance powers under the Patriot Act at our Web site, npr.org, where you will also find stories about how the law has been used so far.
It's MORNING EDITION from NPR News.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.