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RAY SUAREZ: Now a look into the intelligence court and its decision not to broaden the FBI’s spying abilities. Gregory Nojeim is the associate director of the American Civil Liberty Union’s national office here in Washington D.C.; Peter White is a former assistant U.S. Attorney in D.C., and in the eastern district of Virginia.
Peter White, what do you make of the FISA court’s ruling?
PETER WHITE: It’s a surprising decision in the wake of the passage of the U.S.A. Patriot Act in October of last year after September 11. That Act made it clear that the Congress wanted more sharing of information between the intelligence community and the criminal prosecution community.
They went both ways. They wanted prosecutors to have access to intelligence information, and intelligence operatives to have access to information that prosecutors got through grand jury processes. So it’s surprising that the court took steps to keep that sort of sharing from happening in the wake of that decision by Congress.
RAY SUAREZ: In addition to the sharing of information, didn’t the U.S.A. Patriot Act also look for a change in the rules that had been governing these kinds of surveillance techniques up until that time?
PETER WHITE: Up until that time, the intelligence gathering had to be the primary purpose for any surveillance done under the Foreign Intelligence Surveillance Act, any warrants received by this court. That act changed the law to say that it had to be a significant purpose. In other words, there could be other purposes, and the only other purpose, the purpose that Congress had in mine was criminal investigation.
So it’s clear that Congress had in mind that you could use a FISA warrant in a case where the primary purpose might be a criminal investigation, as long as the significant purpose of it was the gathering of intelligence information — again, the sharing idea between the intelligence and law enforcement communities.
RAY SUAREZ: Gregory Nojeim, what did you make of the ruling?
GREGORY NOJEIM: I think the court got it right. What’s at stake here is whether when the government suspects that a person is a criminal, that they’re involved in crime, whether it’s going to have to show strong evidence of crime before it’s allowed to read their e-mails, listen in on their telephone conversations, and rifle through their bedroom dresser drawer.
The stakes couldn’t be higher. What the court did was it said that the government can’t evade that requirement of showing evidence of crime by using this intelligence rubric. And we think that the court got it right, in that the decision will keep us both safe and free.
RAY SUAREZ: But Peter White was suggesting that the wider goals of the U.S.A. Patriot Act also included breaking down some artificial barriers that existed between agencies that needed to share information. Does this make that kind of law enforcement work, these kinds of investigations harder to do?
GREGORY NOJEIM: No. This case was not primarily about the sharing of information. It was about who directs the collection of intelligence information. The Department of Justice wants prosecutors to do that, the people who charge people with crimes, to do that. And the court is saying no, no, no, that is something that would happen, prosecutors directing the collection of information, in a criminal wiretap.
And there’s a whole different law about using criminal wiretaps. And the reason this is important is because when the defendant gets into court in a criminal case, he’ll get access to the information that supports that wiretap order. But in an intelligence case it’s all secret. And openness is one of the protections that the defendant has when he’s in court.
RAY SUAREZ: What do you make of that analysis?
PETER WHITE: I think that the one part that that misses is the clear intention of Congress. It’s important to keep in mind that when a Foreign Intelligence Surveillance Act wiretap is put up, the court has to find that there is cause to believe that the person who is going to be wire tapped is the agent of a foreign power. And that’s what, that’s the protection that still exists. When that case comes into court, in a criminal context, the criminal court has to find that it was reasonable for the court to act as it did and for the agents to act as it did.
This law, the Patriot Act, does not trump the 4th Amendment protection against unreasonable searches. And the courts have said in the past that the FISA court acts appropriately because there has to be cause to believe that someone is acting as an agent of a foreign power for them to issue a wiretap in the first instance. And it is reasonable for us to have wiretaps issued in those parameters and have them be secret.
RAY SUAREZ: You don’t share Greg Nojeim’s concern that it was becoming too easy to get those wire taps, that insufficient evidence of a commission of a crime had to be presented?
PETER WHITE: There’s no evidence that that’s happened. In the cases that have resulted in criminal prosecutions, and there aren’t many, there have been numerous times that district judges sitting over those case versus reviewed the wire tap applications, in camera, that being that the defendant doesn’t get to look at them.
And there’s never been a case where a district judge reviewing the work of the FISA court has said no they went too far here. The prosecutors have been careful, the Department of Justice attorneys have been careful in only presenting cases to that FISA court where they’re justified.
RAY SUAREZ: What about Greg’s suggestion that a defendant is in a much weaker position if the evidence generated against them is part of an intelligence operation rather than a criminal investigation?
PETER WHITE: That’s necessary because there are different matters, different issues at stake, different national interests at stake. We have a national interest that couldn’t be more acute than it is now, in maintaining the integrity of our intelligence operations and maintaining the secrecy of those operations.
And your typical criminal context where it is a drug case or a money laundering or something like that, where it is a purely domestic criminal context, you don’t have that concern. If you release the information that forms the basis for believing someone is an agent of a foreign power, in an open criminal court that’s going to create a substantial deficit for our intelligence community. That’s the hole that the FISA court fills.
RAY SUAREZ: How do you respond?
GREGORY NOJEIM: I think Peter just made a very good argument for not allowing intelligence wire tap product into courts because if the defendant can’t see the evidence against him, the evidence that was supporting that warrant, he can’t properly defend himself.
And it’s also inappropriate I think to rely on this notion that only agents of a foreign power can be subject to FISA surveillance because there’s a bill in Congress right now to delete that requirement for non-citizens who compose the vast majority of the targets of these FISA warrants. So that protection that Peter mentioned might not even be around in another month or so.
RAY SUAREZ: He also suggested that we’re in a different environment now. Zacarias Moussaoui is on trial, he’s often referred to as possibly the 20th hijacker. If American law enforcement agencies are looking for 21, 22 and 23, don’t they have to use some of these techniques that you’ve cast doubt on in order to generate information that could lead to their capture?
GREGORY NOJEIM: No, because they have adequate techniques already in the criminal context. The Moussaoui case was really about a failure to connect the dots. It was a failure to put together the Phoenix memo with the information about Moussaoui and other information that the government had. What’s at stake here is whether, as we fight terrorism, we will maintain the checks and balances in our system that have protected rights throughout our history.
We think it’s very important to maintain that, but time and time again, the Department of Justice has tried to erode them, to get around them. This is one of the times when the courts have stood up and said no, and we think that there will be more and more occasions when the courts say we can maintain a free society while we have a more and more secure society.
RAY SUAREZ: Some of these questions rest on the outcome of the appeal, I guess.
PETER WHITE: They certainly do, and it’s interesting this will be the first time that this appeals court has ever convened to review an opinion of the FISA panel. But one point that Greg made I think is important to keep in mind: A defendant who is ultimately charged with the evidence that arises out of a FISA wire tap gets to review that evidence, they get to review all the evidence that’s going to be used against them. They get to review the tapes of the conversations they had, the videotapes of the meetings they had perhaps, whatever evidence there is that’s been gathered through the wire tap. All they don’t get access to is the intelligence information that the United States government had before they sought that wire tap.
So the defendant is in a perfectly good position to defend himself, because he can defend what happened on those tapes that are being presented in court because he was there when that happened. What he is not in a position to do is to pick apart the United States intelligence system that went into getting that wire tap, and that’s what’s essential to the security of our country and the security of the intelligence system itself.
RAY SUAREZ: Greg Nojeim, Peter White, thank you both.