No License to Spy indiscriminately.(COMMENTARY)

Article excerpt


Newspapers are too often not the first drafts of history, but the originators of historical fables. That pejorative applies to many of the news reports of last week's decision by the United States Foreign Intelligence Surveillance Court of Review approving dual purpose spying.

The Court of Review concluded that neither the Fourth Amendment nor the Foreign Intelligence Surveillance Act (FISA) prohibits search warrants issued by a neutral magistrate to obtain foreign intelligence when a parallel or more important objective is the prosecution of espionage or terrorist-related crimes. Despite the tightly circumscribed holding, inexact and counterfactual news reporting raised the specter of a Gestapolike state. What do you think?

The Fourth Amendment customarily prohibits police searches unless a warrant is issued by an independent magistrate based on probable cause to believe evidence of crime will be discovered. When the government purpose is non-criminal, the standards for warrants are less exacting. The ultimate constitutional test is "reasonableness," informed by the vexing tradeoff in a free society between public safety and privacy from government snooping.

Under FISA, a warrant to conduct electronic surveillance to gather foreign intelligence is authorized if there is probable cause to believe the target is an agent of a foreign power and is using the places or facilities to be investigated. A foreign power is defined to include an international terrorist group, like al Qaeda or Hezbollah. FISA aims to confound international terrorism or sabotage or clandestine activities by foreign powers. Its chief mission is not criminal prosecution.

A U.S. person becomes subject to a FISA warrant as a foreign agent only by flirting with foreign intelligence crimes. The agent designation is triggered by knowingly engaging in "clandestine intelligence gathering activities ... which involve or may involve a violation of criminal statutes of the United States," or knowingly engages in "sabotage or international terrorism."

A warrant also requires a government showing that normal investigative techniques would be futile, and, that procedures have been established to ensure minimization of privacy intrusions consistent with the purpose of the surveillance.

Several years after its enactment in 1978, FISA came to be interpreted by the Justice Department and federal courts as authorizing warrants only when their "primary purpose" was foreign intelligence, as opposed to criminal prosecution. At that time, fears of global international terrorists a la Osama bin Laden and his al Qaeda fanatics seemed overwrought or exaggerated.

Traditional concerns for privacy - the sacred right to be left alone by government - trumped any relaxation of regular constitutional thresholds for spying on American citizens suspected of attachment to a foreign nation or terrorist organization with the goal of criminal punishment. And that resistance to lowering the Fourth Amendment bar developed despite its perverse consequences.

Suppose the government sought surveillance of a foreign agent both to prosecute a foreign intelligence crime and to collect intelligence about co-conspirators or foreign plots in order to shipwreck planned terrorism or espionage. …