All they have to do is show that, and then they can wiretap that person, they can search his home and it's done entirely in secret. The person is never notified that he was subject to the search. Even if they ultimately decide that they have found evidence of crime and want to prosecute the person in using that evidence in court, the individual is not able to attack the legality of the search, because he never gets access to the application, the original application which justified the warrant in the first place. ...
This system was set up 25 years ago, these two tracks?
And particularly for the intelligence gathering, because there's been a history of abuse, right?
Absolutely. It was set up because, in the name of foreign intelligence gathering, the FBI, the National Security Agency, the CIA, had engaged in a whole range of domestic surveillance on the theory that foreign agents were infiltrating U.S. groups. U.S. domestic groups were wiretapped, were searched. There were black bag jobs, which were secret searches of their offices. A whole host of abuses targeted at domestic political groups with the excuse, "Well, they might be infiltrated by a foreign agent and therefore we need to infiltrate them in order to determine whether they're infiltrated." So they got searched. They got wiretapped, they put informants into these groups and more.
So this secret court, as it's known, was set up to regulate that?
Essentially to regulate that, to say, "There is a role for foreign intelligence gathering. But we want to make sure that it is limited to foreign intelligence gathering, and that this power doesn't get abused and doesn't become a kind of way for the government to engage in political spying on its critics."
Or a way to back-door gathering information for a criminal investigation.
Absolutely, absolutely. The whole idea of foreign intelligence surveillance is that it was for foreign intelligence, not for criminal law enforcement. So the requirement, the statute required that the purpose of the investigation be foreign intelligence gathering. Because if the purpose was criminal law enforcement and you were looking to put a person behind bars, the idea was the Fourth Amendment protection of privacy, which extends to all criminals in law enforcement, applied. You couldn't search somebody's home or tap their phone without probable cause of criminal activity.
But the logical question is, what happens if I'm investigating a terrorist organization in the United States connected to Al Qaeda and I find a criminal act of some kind is happening? It may not be blowing something up. It might be. But it might be some other crime -- to raise money or whatever.
What do you do with that information?
Under the Foreign Intelligence Surveillance Act, prior to the Patriot Act, there was no bar on using information that you lawfully obtained through the foreign intelligence surveillance warrant or tap in a criminal investigation. That is, if it was a legal investigation and you came across evidence of crime you could use that evidence in criminal prosecutions. FISA information was used in criminal investigations prior to the Patriot Act.
What the head of the FBI, what the Justice Department and FBI officials in general say to us [is] that's true in theory. But it was so difficult to share information [because] they had put in place guidelines, procedures to make sure there was no mixing, easily mixing of these two things; that, practically speaking, you didn't do it.
Well, you know, I'm not sure. I'm not an FBI agent. But there certainly have been insiders who said that the bars to information sharing were not this particular provision of the Foreign Intelligence Surveillance Act. They were the cultures of the FBI, the CIA, the NSA, the State Department, who didn't trust each other, who were competing for priority and who didn't want to share their information; that, coupled with the fact that there's a general disinclination of anyone who has confidential information to share it very widely, because there's a risk that your source will become exposed.
So in my view, the barriers to information sharing that were exposed after 9/11 were much more cultural and bureaucratic than they were legally required.
What the president has said, what the director of the FBI says and the Justice Department, is that to break that culture down, they had to change the law and they had to change, if you will, the procedures.
But I just don't find that very convincing. I think if you actually go through the Patriot Act and look at what in the Patriot Act broke down the wall, so to speak, between law enforcement and intelligence, there are really only two provisions that are even marginally related. One is directly related, and that is a provision that allows criminal prosecutors doing a grand jury investigation, if they come across information that's relevant to international terrorism, they can share that now with the CIA and with intelligence. So it's law enforcement to intelligence, not the only way around. That's the only provision that directly addresses the wall.
The other provision is this provision that they fought very hard for and got, which allows them to use the Foreign Intelligence Surveillance Act as an end run around the Fourth Amendment requirement of probable cause of criminal activity in criminal investigations. The law prior to the Patriot Act did not bar criminal prosecutors from talking to CIA people, and it didn't bar CIA people from talking to criminal prosecutors.
So they talk to each other quite often, actually.
They talk. And they internally did develop a set of procedures -- which may well have been unnecessary -- that added to the cultural barriers against information sharing.
The Bush administration and Attorney General Ashcroft have gotten rid of those procedures.
They no longer exist?
What the FBI director and others tell us is that they still have the oversight of a federal judge. Even in these secret proceedings, there is a check on what they can do. The attorney general himself, personally, along with the FBI director, approves the transfer of this information from one side to the other. So what's the complaint?
The compliant is that when you're using this foreign intelligence route in a criminal investigation, there are some real serious problems. At the end of the day, a warrant application under the Foreign Intelligence Surveillance Act is never tested in an open adversarial setting. That is, the government goes into a judge, but presents its information ex parte, without the other side there. They get the warrant, they conduct the search.
If they find evidence of criminal activity and prosecute the individual using that evidence, the defendant has no ability to get access to the original application for the warrant. Without access to the original application for the warrant, there's no adversarial testing of that critical first step. And without that kind of testing government, officials are much less likely to be careful about not overstepping their bounds.
So you're relying entirely on a one-sided secret process. Yes, there's a judge. But the judge acts only hearing from one side, only hearing from the government. I think the sort of procedure that we saw in this appeal that came out of the Patriot Act and amendments is an illustration of that.
Now wait. Maybe you need to explain this. I mean, the Patriot Act gets passed. Right? It breaks the walls down somewhat.
It arguably breaks the walls down, although the government says that the pre-existing wall didn't require a wall anyway; it was just something that they instituted. But the Patriot Act is enacted. The government decides, "OK, we're just going to do away with any kind of separation between criminal prosecutors and the intelligence. We're going to allow criminal prosecutors running criminal investigations to use FISA and to avoid the probable--"
Use information gathered in this secret process?
Well, to use the process to gather information. Instead of going through the constitutionally required process of showing probable cause of criminal activity, they now can conduct wiretaps and conduct searches of individuals and criminal investigations without any objective basis for believing that the individual is actually engaged in criminal activity.
What the administration did was said, "OK, now there's no reason to separate these two." And the Foreign Intelligence Surveillance Court, the judges who issue these warrants, said, "No, that's [not] OK, because in our experience, there's been a lot of abuse, and we think it's very important that we maintain separation." The only separation they imposed was that the criminal prosecutors could not run foreign intelligence surveillance warrant applications. They could use that evidence, the information could be shared, but they just couldn't direct the foreign intelligence surveillance application process. That's all.
But the government didn't like that ruling, so it appealed. It was a one-sided appeal. In other words, the government lost before this judge, but they appealed. It was a one-sided appeal before a secret court that had never been instituted, because the government had never before lost in the foreign intelligence court. They have this three-judge court of judges, all appointed by Chief Justice Rehnquist -- very conservative judges. It hears [the] argument in secret from only the government in a totally one-sided appeal. And lo and behold, the government wins, with nobody on the other side.
That is, I think, reflective of this entire Foreign Intelligence Surveillance Act process. That is, the people who get searched, the people whose phones are tapped, never get to have their voice heard in the process. There's never any adversarial testing of the legality of the searches in the first place.
But what they're saying in response is, "Wait a second. There was 9/11. Such a thing as international terrorism going on. We're trying to defend the United States. We're at war, basically. These are extraordinary means. However, we still have a judge involved and we're trying to protect the United States. So what are [you] complaining about?"
What you're complaining about is that what we have seen in the past, the government always acts -- well, not always, but it generally acts -- out of good motives. It often conducts its worst abuses when it's trying to prevent terrible things from happening.
In World War I, we sought to prevent undermining of the war effort, and we prosecuted 2,000 people for speaking out against the war. In World War II, we sought to prevent sabotage, and we locked up 110,000 people because of their race. In the Cold War, we sought to prevent the Communist Party from overtaking the United States government by force and violence, and we ruined thousands and thousands of Americans' lives, based solely on their political associations.
In each instance the government said, "We have a very serious threat here. It's an emergency. We've got to take extraordinary measures." What we see is that, virtually in all those circumstances, we overreact. So you need a check,
and the check that our legal process has always relied upon is the adversarial system. What the Foreign Intelligence Surveillance Act does is eliminate the adversarial system. The people who are targeted never get to challenge the legality of the search that invaded their privacy. I find that to be a problem.
In the Lackawanna case, the government didn't have to worry about sharing information. They approached it as a unified government, intelligence arm, law enforcement arm. They had secret FISA warrants. They also had criminal investigators involved. In the past, the same people couldn't be in the same room. They got rid of all those procedures. They say that was critical to them assessing who these people were, trying to figure out a way to get them neutralized, if you will, or off the street and eventually making a case.
You know, I think information sharing is important. I think it's important that the right hand know what the left hand is doing, that CIA talk to FBI, that FBI talk to NSA, etc. All of that is important. I think that the barriers to that were cultural, not legal.
But the problems with the Foreign Intelligence Surveillance Act are not that it now allows them to talk to each other. It's that it allows the government, in a criminal investigation, to invade people's privacy, to tap their phones, to search their homes -- without probable cause of criminal activity -- which has always been the constitutionally mandated minimum threshold for invading a person's privacy in a criminal investigation. ...
Let me represent their point of view for a minute. First of all, one, the FBI director says he has to certify personally to this court that in fact this is for a foreign intelligence or counterterrorism purpose. That's his word. So he's swearing to that. This is not done lightly, and he's doing it with a federal judge.
But all he has to do is swear that it fits within the confines of the Foreign Intelligence Surveillance Act. All the Foreign Intelligence Surveillance Act requires is that the target, the person you're searching, be an employee of a foreign government, an employee of a foreign political party, an employee of any political organization that consists primarily of non-U.S. citizens. Amnesty International would do, or a terrorist organization. That's all he has to certify.
Then you've got a foreign intelligence purpose to the investigation. Even if it's a criminal investigation, they do an entire end run around the probable cause requirement, which is the constitutional protection that exists between us and the government. It is what protects us in general from having our phones tapped on a daily basis.
But in Lackawanna, we found no one complaining that their civil liberties had been abused. Have there been any complaints under this system of intelligence sharing and using this act and these warrants -- that it's been done unjustly?
I think, given what they knew about the Lackawanna defendants, they probably were justified in using the Foreign Intelligence Surveillance Act for surveillance. No, we haven't gotten complaints.
But the reason we haven't gotten complaints is because nobody knows if they're the subject of a foreign intelligence tap. You could be the subject of a foreign intelligence tap; I could be the subject of a foreign intelligence tap, and we will never know. The government is permitted to conduct searches of homes without ever telling the person that the home was searched and to tap phones without ever telling the person that the phone was tapped. That is very different from the ordinary course of business, where the government has to, at some point, tell you are the subject of a tap. Then you can challenge it.
But that's not the Patriot Act. That existed before the Patriot Act.
Right. That existed before the Patriot Act. But it's one thing to have that kind of authority, where the government is doing foreign intelligence gathering without looking to criminal law enforcement, where it's basically trying to find out what the Russian spies are doing here in the United States without necessarily seeking to criminally prosecute them.
It's another thing when you make this a tool of routine criminal law enforcement, and that's essentially what they've done. They've given prosecutors in criminal investigations an end run around the usual constitutionally mandated protection of people's privacy -- namely, the Fourth Amendment. ...
Again, to represent what they say, they say these wiretaps warrants that you're complaining about are gotten in secret. But so are criminal wiretap warrants. Grand juries operate in secret. Grand juries do investigations that sometimes never become public, and subpoena information and do all kinds of things that you may never know about. So the fact that it's in secret isn't unusual.
What's unusual is that it's secret throughout the process. Even at the end of the day, when the evidence is to be used against an individual to put him behind bars or to take his life in a criminal proceeding, he has no meaningful opportunity to test the legality of the government's actions in the first place in gathering that information.
If it gets that far.
If it gets that far.
It didn't [get that far] in the Lackawanna case. Everyone pled guilty.
Because they pled guilty, right. If they plead guilty, then the government never has to -- no testing is required at all.
What they pled guilty to in Lackawanna was the material support of a terrorist organization. One of the defense attorneys involved said that means basically if you go to an Al Qaeda camp and don't like it but you've stepped foot in it, you go to prison.
This is the truth. The material support for terrorist organization statute, which the Lackawanna people were, pled guilty to, is an extremely broad statute. In my view, it's essentially a resurrection of guilt by association, the watchword of the McCarthy era. What it does, is it says it is a crime for an individual to provide support, in any way, shape or form -- through his person, through making a donation, through offering training -- to any organization which has been blacklisted by the secretary of state as a terrorist organization. The government does not have to show that the individual intended to further any terrorist activity in the organization. They don't have to show any link between what the individual did and any terrorist or otherwise violent action of the recipient group.
So in the Lackawanna case, the government's claim is these guys are a secret terrorist sleeper cell, intending to attack American interests. The defense claim is these guys are a bunch of religiously over-idealistic young men who got caught up by a charismatic guy who brings them over and they find themselves in this Al Qaeda camp. They don't particularly like it. They leave. They come back to the United States and never take any action whatsoever.
The law is so broad, that whichever of those accounts is true, they're guilty. The law doesn't require any proof that an individual intended to further any kind of illegal activity of the group, and that's guilt by association. We're not holding them responsible for anything they did. We're holding them responsible for their association -- and here the association is merely going to a camp of a group that we don't like.
I can hear somebody out there saying, "That's exactly the status of the 9/11 hijackers prior to the events." They were here in the United States. They didn't do anything overt while they were [here]. They didn't attack anything, they didn't do anything. They had gone, in some cases, to Afghanistan to train, and they wound up being those hijackers.
Right. Well, the one difference is that they conspired to hijack airplanes and fly them into buildings, which happens to violate several federal laws. These [Lackawanna] guys, there's no evidence that they ever did anything other than attend this training camp, and they may not even have known what the character of the training camp was in advance.
But my point is simply they might be a sleeper cell. They might have been intending to engage in, and planning to engage in terrorist actions. In that case, they ought to be prosecuted. But they ought to be prosecuted for that activity. If they're just a bunch of idealistic young men who happened to find themself in this camp but never undertook any violent action, never undertook to conspire to attack America, we shouldn't be holding them guilty.
The law is actually written so broadly that not only attending a training camp is a terrorist crime under this law. If a Quaker were to send a book on Gandhi's theory of non-violence to Osama bin Laden or to the head of the Kurdistan Workers' Party, another designated terrorist group, in an attempt to encourage him to forego violence for non-violence, he would be guilty under the statute of providing material support -- the book, a physical asset -- to the organization. There would be no defense to say, "My purpose was to encourage non-violence." There would not even be a defense if you could show that the leader of the organization read the book, was convinced and gave up violence.
You are guilty under this law without regard to your purpose and without regard to the effect of your actions. As a result, what this does is send a tremendous chilling effect over all kinds of wholly legitimate political activity.
There are many in the intelligence community, in Congress, who are saying the FBI is not up to this job of counterterrorism; [that] what we need is a domestic intelligence agency, stand-alone agency, to deal with terrorism and espionage. Do you agree?
My view is that it is important to have domestic intelligence and domestic information gathering focused on crime. The FBI is focused on crime. Some people say that's a shortcoming of the FBI. I think it's a critical limitation on the power to spy, the power to surveil, because if they're not focused on crime, what are they focused on?
If you create a domestic intelligence entity which is not in the business of looking for criminal activity, it's very likely that they're going to be in the business of surveilling political dissent.
The director of the FBI and FBI officials we've interviewed say, "We understand and respect the Constitution of the United States. That's why we should be doing this job."
One hopes that they understand and respect the Constitution of the United States. But we've never rested our rights on the good faith of government officials. We have insisted that they be bound by constitutional principles, that they be held accountable in courts, that there is a public process, an adversarial process that assures that if they take action that goes over the line, they'll be held accountable. The problem with secret surveillance, the problem with one-sided procedures is that you don't have that kind of critical public check on the prosecutorial power.
Am I hearing you say that you would agree with Director Mueller and his colleagues that they should not lose jurisdiction over domestic intelligence operations?
Yes. What I'm saying is that I think there's a real danger in creating an intelligence agency that has a kind of roving warrant to conduct surveillance over individuals without a focus on criminal activity. If what we're concerned about is terrorism, it's a crime. It seems to me that if the FBI is charged with investigating crime and the FBI focuses on people who may be engaged in crime, may be conspiring to engage in crime, might have evidence of criminal activity -- all of which terrorism fits into -- that they ought to be able to do that job.
I'm not convinced that another separate agency would do a better job. I am concerned that a separate agency -- if it were sort of severed from the focus on crime -- would quickly sort of slip into a focus on politics, on religion, on ideology, just as J. Edgar Hoover did with the FBI.
In fact, an intelligence official who we interviewed has said the FBI used to be very good at domestic intelligence gathering. It put the Communist Party in the United States out of business.
That what you really want to know when you're dealing with a threat, a conspiracy like Al Qaeda, is you want to know what they're planning to do. That is not a law enforcement function; that is an intelligence function.
I don't buy that. We want to know what the Mafia is planning to do. So we get informants and we get inside and we find out what they're planning to do, and we bring them to justice. We wanted to know what Sheik Omar Abdel Rahman was planning to do. We got an informant, got inside there, and ended up bringing to justice the sheik and a number of other people for allegedly planning to conspire to bomb the tunnels and bridges around Manhattan. That was criminal law enforcement activity focused on crime.
What we don't want, it seems to me, is either the FBI or some other entity going into a mosque just because it's a mosque. Or conducting surveillance of this organization because it's a left-wing organization and it's criticized John Ashcroft. Or investigating this organization because it appears to have some radical elements who believe strongly in environmental justice.
It seems a far cry from terrorism to that. But it seemed a far cry from communism to that, and we saw when these kinds of restraints weren't in place in the McCarthy era and the civil rights era that followed it, the government slid from a focus on criminal conspiracies to a focus on political ideology and information gathering on wholly lawful, nonviolent political activity. I don't think we want our government doing that.
The thing that protects us from that is the Fourth Amendment, the requirement of probable cause of criminal activity and the focus of crime. So what concerns is that a domestic intelligence agency, if the idea is to sever it from the FBI because the FBI is too focused on crime -- it's a dangerous idea, because the focus on crime is the protection that we have. ...
On a practical level, what we understand is that getting one of these warrants, these secret warrants, is pretty difficult. FBI officials, people in the field say you have to go to this court that only meets in Washington D.C. and meets one day a week, and there's a whole process through FBI headquarters through another agency, the Justice Department, back and forth before it even gets presented to the court...
Well, look at the numbers. One way of looking at the numbers is looking at the numbers of warrant applications that have been denied, and in 20 years Foreign Intelligence Surveillance Courts have denied, have turned down one warrant application for a search and zero warrant applications for wire taps. So what that suggests is that there is not a very meaningful check here in their initial application process. The total numbers of foreign intelligence surveillance taps and searches have gone up. My guess is that they will continue to go up because it's an easier way of getting information in criminal investigations. And now that we've opened the door to criminal prosecutors, whenever there's a foreign person or a person connected with a foreign entity involved in the investigation to take this easier route, my prediction is that we're going to see increasing reliance on this kind of process.
Finally, when we hear FBI officials talking about the Constitution and how they understand the Constitution and they're the people that continue doing this inside the United States because of that, should we believe them?
I don't think so. I think J. Edgar Hoover would have told you the same thing. He understands the Constitution. He takes an oath to abide by the Constitution. He's trying to protect us from a very serious threat; trust me. In fact, for most of J. Edgar Hoover's career, we did trust him. He was a hero for most of his career. It was only when sort of the floodgates opened and the doors opened on the kind of abuses that he had engaged in the name of protecting us, in the name of the Constitution, did we recognize that we need to put some constraints on political spying by our enforcement agencies and by our intelligence agencies. ...
You're complaining about the Patriot Act. But the government is saying it has been essential to their success, there hasn't been an attack in two years, and they need more power to help ensure that.
First of all, I think that their claim that it has been essential to the success is dubious. They have not pointed to any particular indictment and shown that the Patriot Act was critical to that indictment. It is not clear that any of the indictments that have come down since 9/11 could not have been brought without the Patriot Act. Simply, that case has not been made.
Secondly, they tell us about their quote, unquote, "hits" of people they have indicted. They don't tell us about the people that they have wiretapped, the people whose homes they have searched, the people whose records they have obtained from libraries and bookstores, et cetera, who actually were entirely innocent, who never engaged in any kind of criminal activity. They don't tell us about the misses.
If you want to judge the effectiveness of this kind of standard, you would want to know not only about how often it's being used to catch bad guys, but you would also want to know how many times it's being used to intrude upon innocent people. They don't tell us the second part; they only tell us the first half.
Because they don't have to.
Because they don't have to. Right. And they have no interest in telling us that. John Ashcroft tells you we've had 255 criminal indictments in this investigation. A handful are actually terrorist indictments; most of them are credit card fraud, etc. You know these are the hits. We have deported 515 people. He doesn't tell you that their policy was not to deport people unless they had been cleared of any connection of terrorism. But he characterized those as successes. He doesn't tell us about his failures.
He doesn't tell us how many people have been searched; how many people's records have been seized; how many people have had their phones tapped without uncovering any evidence of criminal activity; how many immigrants … essentially the Arab or Muslim country from which they come from have been required to come in and give information to the government; how many have been locked up without actually identifying a real terrorist. Unless you have that full set of information, you don't really know how to balance the cost versus the benefits of any particular method.
They say that's a problem we have because it has to stay secret, because we don't want people on the other side to know really we're doing.
The misses don't have to stay secret. I mean, they're not keeping the hits secret. Every time John Ashcroft brings an indictment, he holds a national press conference and then claims that this person is the worst terrorist he has ever found. But when he taps the phone of an innocent person and finds no evidence whatsoever, does he hold a press conference to say, "Well, we just used the Patriot Act to tap this person's phone, but we've found nothing?"
When the inspector general looked into John Ashcroft's preventive detention campaign which, according to Ashcroft, was designed to detain suspected terrorists, keep them off the streets and keep us safe, [the] inspector general found that none of the several hundred people who had been detained in the wake of Sept. 11 were ever charged with anything related to terrorism. Virtually all of them were affirmatively cleared by the FBI of any connection to terrorism. Those were all misses. What is John Ashcroft's response? "I have no apology."
So this is a man who simply just ignores the costs. Here you locked up hundreds of people who have no connection to terrorism, and John Ashcroft's response is, "I have no apology." So it seems to me he just has no sensitivity for the cost to people's lives, to people's privacy, to people's freedom, that these kinds of measures can impose.