A COURT THAT NEVER SAYS NO

...We still do not know whether this court is working perfectly or whether it isn't working at all," Kastenmeier says...

...Presumably, the court has the power to reject applications...

...Nor must it have permission to monitor messages transmitted on lines used exclusively by foreign powers within the United States...

...The subversion of constitutional rights often takes on a benevolent face...

...Every judge who has been asked to conduct a secret review has examined the documents in camera and ex parte to determine the legality of the surveillance...

...Six years earlier, the Supreme Court had held that warrantless domestic surveillance violated Fourth Amendment protections against unreasonable searches and seizures...

...While the alert eye of an advocate might be helpful in discerning defects in the [application] certificates, I see no reason to believe that an adversary proceeding is necessary for accuracy," opined the district court judge in the Irish Republican Army case now being appealed...

...Is privacy better protected in 1984 than it was in 1978...

...In 1982, the last year for which figures are available, the Reagan Administration sought and received 473 surveillance orders, almost 50 per cent more than the Carter Administration obtained in 1980, the only full year it was required to seek court approval...

...The advisability of FISA could be debated ad nauseam...

...You can't let your people know without letting the wrong people know," Reagan said last October in explanation of his tight lip about CIA activities directed against Nicaragua...

...According to a recent memo prepared by the Justice Department at the request of Representative Kastenmeier, "Even if the target is seeking unclassified or public information, this may be sufficient to obtain authorization of the surveillance if he is doing so at the direction of a foreign power...

...in an FISA case, the Justice Department must merely demonstrate that the target has foreign connections and that the premises to be bugged are used by that target...

...We, as well as the intelligence committee in its own fashion, must review this court and its proceedings...

...FISA's safeguards are paper thin, and its loopholes are gaping...

...The statute permits political surveillance, and without a stretch, without a lot of malevolence, it permits abuse...

...They must argue that the determination of legality is so complex that an adversary hearing with full access to relevant materials is necessary...

...has said more than once that he regards dissenters as tools of alien forces...

...FISA allows court-approved electronic surveillance if there is "probable cause" to believe that the target is a "foreign power" or, more vaguely, an "agent of a foreign power...

...But even where the letter of the law is upheld, constitutional rights stand in jeopardy...

...It is pure assertion...

...Eleven lawyers currently hold Government clearance to appear before the court...

...The thing that gave rise to the court was the assertion by the Justice Department that there was a residual power in the hands of the President and his appointees to engage in searches and seizures without regard to the Fourth Amendment...

...Yet the Justice Department offered little information during Kastenmeier's hearings...

...The basic freedoms of Americans will be in jeopardy as long as the citizenry fails to challenge the fundamental assumption of the National Security State—that any means can be used against the enemy presumed to lurk within our midst...

...One judge once overruled the lawyers, but merely because they had asked him to do so...

...A "U.S...

...Seven district court judges preside on a rotating basis...

...Furthermore, the language of the Act limits the ability of the court to challenge Government claims...

...It's an open question whether we're getting good, solid review of these applications...

...But the fact that the judges had previously violated FISA provisions gives great cause for concern...

...Joseph Heller could not devise a sharper Catch-22, and Franz Kafka could not have conjured up a craftier prevarication...

...Thus it is possible for GCHQ to monitor the necessary domestic or foreign circuits of interest and pass them on to the NSA...

...Halperin and ACLU attorney Mark Lynch urged Kastenmeier's subcommittee to compensate for the law's loopholes and ambiguities by ensuring strict Congressional oversight...

...The NSA does not need court approval to monitor messages that leave or enter the United States...

...Under FISA, the Attorney General may ask the trial judge to review the surveillance application and the order in secret to protect national security...

...In a conference room on Constitution Avenue, of all places, the National Security State has been institutionalized...

...The attacks come not from evil people but from well-meaning bureaucrats, aided in this instance by well-meaning civil libertarians...

...However, the court can authorize snooping on Americans if the Attorney General certifies they are engaged in clandestine activities on behalf of a foreign power that "may involve" a violation of criminal law...

...The levels of review in the FBI and National Security Agency and here are so intense that the chances of a poor one getting in there are zilch...

...Court of Appeals in Washington, D.C., conceded to attorneys for two men incidentally overheard during an FISA surveillance...

...Who can authorize black-bag jobs if not the intelligence court...

...I am not necessarily persuaded," says Representative Robert Kastenmeier, the Wisconsin Democrat who chairs the House Judiciary Committee's subcommittee on courts, civil liberties, and the administration of justice...

...person and then only on a 'clearly erroneous' standard...

...Targets of FISA snooping are not notified—unless they are prosecuted...

...A staff assistant to the House committee says its members have examined a "handful" of applications...

...Hart delivered his testimony in vague terms, but he inadvertently provided some insight into the court's perception of its duty: "The judges of the court sit in Washington, D.C, to consider applications for orders authorizing the interception of foreign intelligence information by electronic surveillance, or other mechanical means," he told the subcommittee...

...Silent Intruders A Court that Never Says No BY KEENEN PECK Twice a month, and whenever an emergency arises, a judge holds court in the conference room on the top floor of the Justice Department building in Washington, D.C...

...But without access to the relevant materials their claim of complexity can be given no con-creteness...

...But some points are indisputable: First, no matter how hard Congress scrutinizes the intelligence court, the judges will continue affixing an imprimatur to the most reprehensible invasion of privacy—electronic surveillance, which the ACLU itself has called "the most intrusive and inherently unreasonable form of search and seizure...

...The Executive Branch wanted to stake out exclusive authority over intelligence-related physical searches, and Judge Hart complied in the court's only published opinion...

...The intelligence court's standard for approving surveillance is weaker than the one used in criminal investigations...

...Protection of our constitutional rights is an all-or-nothing proposition...

...The American people have no sure way of knowing whether the FISA court is, in fact, endorsing unreasonable searches and seizures, allowing the indiscriminate dispatch of the "invisible policeman in the home," as Supreme Court Justice William O. Douglas termed electronic surveillance...

...By contrast, targets of criminal surveillance must eventually be informed, even if the G-men hidden in the shadows heard not an inkling of villainy...

...Last summer, Kastenmeier held the first public hearings on the court...

...FISA was enacted in 1978 after Congress and the media exposed a wide pattern of abuses by the Executive Branch...

...Legitimate use" of wiretapping and bugging to obtain foreign intelligence information would thereafter be authorized by the Attorney General and a disinterested special court which, in turn, would be watched by Congress itself...

...between 1979 and 1981, the judges approved a series of physical break-ins—black-bag jobs— although FISA plainly grants no such authority to the court...

...Unfortunately, the court seems to attach greater import to the latter—at least from the scanty data that have seeped through the shroud of secrecy surrounding the body...

...Put another way, if the papers are in order, the court has no choice but to approve the spy agencies' requests...

...A lot more could be done in the area, but it would be a mistake going back," warns Bruce Lehman, a Washington lawyer and former Congressional aide who helped draft FISA...

...The biggest open spots relate to the National Security Agency...

...Congress stepped in to fill the breach...

...Applications to the court bear the signatures of the Attorney General and, depending on which agency makes the request, the Secretary of Defense, the Director of Central Intelligence,' or the FBI Director...

...Hart correctly delineated the court's jurisdiction in his 1981 ruling...

...The key words are "available to issue such an order"—which is quite different from ensuring the availability of a judge to consider an application...

...The Justice Department is required to file semiannual reports on the court with the House and Senate Intelligence Committees...

...person"—that is, a citizen, a permanent resident, or an organization that includes many American members—may not be considered an "agent of a foreign power" solely on the basis of activities protected by the First Amendment, the law states...

...The room, regularly "swept" to detect hidden microphones, is secured by a cipher-locked door...

...After opposing FISA-type legislation for some four years, the ACLU stepped aside in 1978 and implicitly endorsed the final "compromise" bill, though it expressed dismay over the NSA exemptions and the absence of a procedure to notify all surveillance targets...

...Congress authorized the President to use the judiciary as a rubber stamp," Lewis says...

...When the Government overhears an American in the course of a foreign-related surveillance, it can retain the information if "necessary" to national defense or security—the same rationalization Richard Nixon invoked to spy on U.S...

...Similarly, the Reagan Administration sees a KGB agent behind every nuclear freeze advocate and a Cuban inside every critic of its Central America policies...

...The benefits of the structure are illusory," says John Mage, a New York lawyer who represents a Bulgarian diplomat charged with espionage on the basis of an FISA surveillance...

...Bamford points out the British did just this when the NSA snooped on American dissidents in the past...

...But the high court explicitly reserved judgment "on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country...

...Scheck believes the Government can "find a way into domestic political organizations" by targeting their foreign members...

...Secrecy corrupts, and absolute secrecy corrupts absolutely," maintains Barry Scheck, professor at New York's Cardozo Law School and attorney in an FISA case involving supporters of the Irish Republican Army...

...This is the Foreign Intelligence Surveillance Court...

...While listening in on the Bulgarian, the Government overheard discussions among the diplomat, Mage, and another lawyer who, like Mage, is a "U.S...

...in the other, Scheck and Lewis are appealing convictions of gunrunning...

...After the Reagan Administration took office, the Justice Department submitted an application "inviting" the court to renounce any power to sanction break-ins...

...We seek to ensure that there is always a judge available to issue such an order...

...Reagan has freed the FBI to spy on domestic organizations, and he has heightened Government secrecy...

...But the second most influential court—the District of Columbia Court of Appeals—had imposed standards on the Executive Branch more stringent than those of FISA...

...The Foreign Intelligence Surveillance Court legitimates that assumption and assigns it a permanent place in the American landscape, even if that place is only a conference room in Washington, D.C...

...According to Bamford, the NSA "has skillfully excluded from the coverage of the FISA statute as well as the surveillance court all interceptions received from the British GCHQ [Government Communications Headquarters] or any other non-NSA source...

...And because both intelligence committees operate largely in secret, the public can only speculate about what they learn...

...FISA was supposed to put an end to such offenses...

...I see no advantage in Congressional approval of the legality" of national security wiretaps, Mage says...

...Second, the current Administration displays the same kind of paranoia and loathing of dissent that marked the Nixon era...

...nuclear and foreign policies, the tribunal poses a potential threat to dissidents at home...

...Though hand-picked by Chief Justice Warren Burger, all are subjected to FBI background checks...

...To be sure, FISA provides for Congressional oversight as a check and balance against the intelligence tribunal...

...In the absence of FISA, the Government was proclaiming the right to tap for whatever reason...

...One problem might be that we don't have a good mix of judges," he adds, noting that Warren Burger appointed "individuals not likely to rock the boat—senior judges, conservative judges...

...FISA requires minimal annual committee reports to Congress, but that provision expires this year...

...Even in those rare criminal cases where a tap or bug surfaces, the accused usually don't find out what prompted the eavesdropping in the first place...

...The Attorney General and the President, answers Lawton...

...Until someone knocks on your door and says, 'Aha, you're a foreign agent,' you don't think it could apply to you," adds attorney David L. Lewis, who has also represented backers of the Irish Republican Army who were bugged under FISA...

...That unique decision became the only published opinion ever to emanate from the conference room...

...It authorizes wiretaps on persons believed to be "agents of foreign powers," and President Reagan Keenen Peck is an associate editor of The Progressive...

...The Justice Department says it protected the rights of all parties by erecting a "Chinese wall" between prosecutors and FBI agents who monitored the microphones...

...Their oversight is off the record," says Kastenmeier...

...dissidents...

...Senator Frank Church, who led the most intensive investigation into Watergate-era transgressions by the intelligence agencies, summed up the findings of his Select Intelligence Committee this way: "Through the uncontrolled or illegal use of intrusive techniques—ranging from simple theft to sophisticated electronic surveillance—the Government has collected, and then used improperly, huge amounts of information about the private lives, political beliefs, and associations of numerous Americans...

...The memo also notes, "During the past four years, the percentage of targets who are United States persons has increased, somewhat, due primarily to enhanced investigation of international terrorism...

...The law was designed to "curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it," according to a 1978 Senate report on FISA...

...members of the Senate committee have publicly stated that their supervision is not ideal...

...In light of today's admittedly weak oversight, however, are the rights of Americans being upheld by FISA...

...When the Nixonites tapped the phones of antiwar activists and suspected leakers (including Morton Halperin), they did so in the name of defense against foreign intrigue...

...They have never lost a case...

...Kastenmeier has asked the House Intelligence Committee to continue reporting, and he predicts it will agree...

...The garbage drops out way before that," contends Mary Lawton, the Justice Department's counsel for intelligence policy, whose staff prepares the applications and represents the snoops...

...Author James Bamford highlighted another loophole in his recent book, The Puzzle Palace...

...person...

...Witnesses included Lawton, civil liberties advocates, and the former chief judge of the intelligence court, George Hart Jr., who served from 1979 to 1983...

...In some instances, the judges have erred in favor of the intelligence community...

...The tribunal has not confined itself to issuing surveillance warrants...

...FISA is working in the sense that it has defined the boundaries of national security wiretaps...

...I feel considerably less secure," counters lawyer John Mage...

...How many other requests falling outside the parameters of the Act have been similarly approved...

...Moreover, Hart's decision demonstrates that FISA does not stand in the way of Executive Branch abuses...

...Lawyers have argued to no avail that they need to see such information to prepare an adequate defense...

...Federal spy agencies must obtain approval from the special judges to conduct electronic surveillance within the United States...

...Before FISA, he notes, the judiciary had reached no consensus on warrantless foreign-related snooping...

...In one case, the defendants were acquitted of conspiracy and various weapons charges...

...Lehman feels "safer and more comfortable" knowing that FISA exists...

...FISA was "the best we could get," argues Morton Halperin, director of the Center for National Security Studies and one of the ACLU lobbyists at the time...

...Under the Foreign Intelligence Surveillance Act (FTSA), which mandated the establishment of the court, the judges are charged with weighing the constitutional rights of Americans against the ostensible needs of the spy agencies...

...once an erosive precedent is set, the entire foundation begins to slip...

...That is usually the position of the nation's leading civil liberties lobby, but with respect to FISA, the American Civil Liberties Union placed itself in a curious position...

...Amore disturbing loophole in FISA is that most people spied on with the blessing of the court never find out...

...Ours [the civil liberties subcommittee's] is on the record...

...Kastenmeier acknowledges there are "open spots" in terms of what FISA regulates...

...We appreciate the difficulties of appellants' counsel in this case," the U.S...

...At a time when more and more Americans are protesting U.S...

...For the past five years, since May 1979, it has authorized "national security" wiretapping and bugging...

...To obtain a warrant in a criminal case, the Government must show "probable cause" that an offense has been or will be committed...

...Why has the secretive court never rejected an application...

...Hart, perhaps, equates impartial review with automatic approval...

...The committees, however, have neither the time nor resources to review the circumstances behind hundreds of surveillance orders...

...No one argues against them...

...Every application brought before the extraordinary court has been approved— 1,422 as of January 1983...

...As Mary Lawton told the House subcommittee, "An FISA judge may look behind the certification only if the target is a U.S...