The 1978 Foreign Intelligence Surveillance Act (FISA)
was enacted as a response to public outrage over the extent of domestic
spying during the Kennedy, Johnson, and Nixon administrations. While
recognizing that intelligence gathering is a legitimate function in the
national security interest, Congress passed the law to limit the
government's power to break into homes and spy on U.S. citizens.
FISA created a distinction between criminal and
intelligence/counterintelligence investigations in terms of the
standards the government must meet to obtain warrants for electronic
surveillance. In a criminal investigation, law enforcement must show
probable cause to obtain a surveillance warrant. However, to obtain a
FISA warrant, it needs to prove only that there is reasonable suspicion
that the target of the surveillance is "a foreign power or an agent of a
foreign power" -- a standard much easier to meet. The act also required
that "the purpose of the surveillance is to obtain foreign intelligence
information."
Under FISA, the government has to obtain court approval before
sharing any knowledge gained during an intelligence investigation with
criminal investigators. The act established the Foreign Intelligence
Surveillance Court, known as the FISA Court, to hear the government's
case and approve both surveillance and information-sharing requests in
secret. Under the law, the chief justice of the Supreme Court is
required to appoint seven District Court judges to the FISA Court, which
meets once a week in a secure, soundproof room in the Justice
Department to hear the government's requests.
Since 1978, the FISA Court has never rejected a surveillance request.
Because of this, some critics have argued that the court merely serves
as a rubber stamp for the government.
The Role of the Judiciaryin the War on Terrorism
The FISA Court is probably the least known court in Washington, but
it has become one of the most important, especially now as we combat our
hidden enemies in the war on terrorism. I think my remarks today will
be historic in one sense, and that's why C-Span is here, I suppose. I
understand that I'm the only judge on the Foreign Intelligence
Surveillance Court who has ever spoken in public about the court. I
spoke to the ABA Standing Committee on Law and National Security in
April of 1997. This is the first time since then that I have talked
publicly about the court, so what you will hear today is only the second
speech ever given by a member of the FISA Court. Of course, I have to
be circumspect about what I can say about the court's operations, since
the information we deal with in each case is always classified secret or
top secret for national security reasons. But there are some things
that I can say, and I hope you will find them informative and
reassuring.
I would like to talk briefly about how national security electronic
surveillances were conducted before the creation of the FISA Court and
how the court came to be created in 1978. Warrantless electronic
surveillances authorized by the attorney general apparently were begun
before World War II by President Roosevelt, based on the president's
inherent and constitutional power as commander in chief of the Armed
Forces, chief executive officer, and his responsibilities to conduct the
nation's foreign affairs. The U.S. intelligence agencies at that time
provided targets for the attorney general's approval. Then during the
Cold War years, these surveillances greatly expanded.
In a number of criminal prosecutions in the 1960s and the early
1970s, the government's warrantless electronic surveillance program came
under judicial scrutiny, resulting in the Supreme Court's decision in US v. US District Court
in 1972. The Supreme Court struck down warrantless electronic
surveillance directed against domestic organizations, but the Supreme
Court noted that it made no judgment with regard to the president's
power to conduct electronic surveillance of foreign powers and their
agents. The court went on to suggest that different standards might
apply there. As a result of some of the investigations by congressional
committees of intelligence abuses in the mid-1970s, the communications
common carriers started refusing to carry out attorney general orders
rather than court orders for electronic surveillances.
So finally, a reluctant Intelligence Committee decided to go along
with the idea of creating a special court to issue warrants for
electronic surveillances of foreign powers and their agents, and
Congress enacted the Foreign Intelligence Surveillance Act in 1978,
finally passing it in October of that year. The initial judges were
cleared and appointed by Chief Justice Berger, and the court began its
work on May 18, 1979. We still have our annual judicial conference on
or about that date each year. The chief justice hosts us each year at
the Supreme Court and I preside. All seven judges attend, along with
the chief justice, the attorney general, and the directors of the CIA,
FBI, and the NSA. These conferences will be always one of the
highlights of my career as a judge.
The Foreign Intelligence Surveillance Court currently has seven
judges appointed by the chief justice for seven year, non-renewable
terms. Each has to be from a different circuit, so they're from all
around the country. The terms are staggered, so we get one new judge
each year. The variety of judges who have now served on the court --
Democrats and Republicans, conservatives and liberals, from east and
west and north and south -- has been a real strength of the court in
demonstrating that when we approve a surveillance request there really
is a valid national security basis for the surveillance. Besides the
certification of the applicable intelligence agency official and the
affidavit of the investigating agent, we always have the personal
approval of the attorney general or the acting attorney general as the
last stop before the application is presented to us for approval.
The political accountability that the attorney general must
personally assume for each surveillance is an important safeguard, and
we consistently find the applications well scrubbed by the attorney
general and his staff before they are presented to us. But we then have
the investigative agent appear before us, under oath, for questioning.
And frankly, as I told the ABA, those who know me know the chief
justice did not put me on this court because I would be a rubber stamp
for whatever the executive branch was wanting to do. I ask questions. I
get into the nitty-gritty. I know exactly what is going to be done and
why. And my questions are answered, in every case, before I approve an
application. I know the same is true of each of my colleagues.
So I bristle at the suggestion in some quarters that we are rubber
stamps for the government, because no applications have been formally
denied in recent years. Some have been revised, some have been
withdrawn and resubmitted with additional information, and the process
is working. It is working, in part, because the attorney general is
conscientiously doing his job, and his staff is, as well. I'm
personally proud of what we're doing. And while I can't go into
details, I will give you some examples that are now public.
I'm sure all of you recall the Aldrich Ames case, the CIA officer who
was a Russian spy, and the key role the Foreign Intelligence
Surveillance Court played in his case. The attorney general had also
authorized physical searches of Ames's home, not pursuant to court
order, that turned out to be very productive. Had Ames gone to trial,
that would have been a hotly litigated issue. The president and the
Congress wisely reacted by amending the statute to now require that
physical searches for national security reasons also be authorized by
the court. The court had authority all along to authorize physical
entries to plant eavesdropping devices, but the court had never
authorized physical searches for information. The amendment to the
statute became effective just as I was appointed to the court in 1995,
and Attorney General Reno presented to me at that time all physical
searches that she had authorized for my review as to continuation. Many
new legal questions were presented and resolved to the court's
satisfaction.
I'm sure all of you also know about the case of Robert Hanssen, the
FBI agent who was also a Russian spy, who was arrested last year.
Again, the Foreign Intelligence Surveillance Court played a key role in
his case. Because Hanssen was in the FBI's National Security Division
and had unbelievable access to classified computer records, it took an
extraordinary effort of typing on old-fashioned typewriters and
stand-alone computers to bring that case to a successful conclusion
without him finding out about our surveillance of him. Attorney General
Ashcroft and I met on the day he took office to discuss the Hanssen
surveillances. I had until then worked closely with Attorney General
Reno and FBI Director Freeh on the matter. Attorney General Ashcroft was
on David Letterman last Tuesday night, and he talked about how he
learned about the Hanssen case on the day he took office. Needless to
say, it was a sober beginning for a new attorney general.
Besides Russian and other spies, the FISA Court also handles a number
of cases involving international terrorism. On the night of the
bombings of the U.S. embassies in Africa I started the first emergency
hearings in my living room at 3:00 a.m. From the outset the FBI
suspected bin Laden, and the surveillances I approved that night and in
the ensuing days and weeks all ended up being critical evidence at the
trial in New York last year, in which several of bin Laden's associates
were convicted on numerous charges relating to those bombings. One of
them, Wadi El-Hage, lived in Arlington, worked in Ft. Worth, and is the
cover story subject of this month's Texas Monthly that I got in my hotel room when I got in last night.
I should also tell you that the FISA Court has a special secured
courtroom with the kind of walls that cannot be penetrated
electronically, and we have a judges' chambers there that I use at the
Justice Department Building a few blocks from my own courthouse.
Some emergencies I do in my courthouse chambers or at my home. Last
Saturday afternoon, in fact, as I was cutting my grass at home, I had to
stop to do seven emergency hearings with four carloads of agents. I
love to tell the story of my wife Janice, who is here with me today.
She has to go upstairs because she doesn't have a top-secret clearance.
[Audience laughter.] My beloved cocker spaniel, Taffy, however,
remains at my side on the assumption that the surveillance targets
cannot make her talk. The FBI knows Taffy well. They frequently play
with her while I read some of those voluminous tomes at home.
When New York attorney Lynne Stewart and others involved with Sheik
Omar Abdel Rahman, who's in prison for life for his role in the 1993
bombing of the World Trade Center, were arrested last Tuesday after
their indictment in New York on charges of helping pass unlawful
messages to a terrorist group in a foreign country, it was publicly
revealed that the surveillances there had all been conducted pursuant to
orders of the Foreign Intelligence Surveillance Court. Because of
sensitive attorney-client privilege questions presented in those
surveillances, special minimization procedures were followed by the FBI,
pursuant to the orders of the Foreign Intelligence Surveillance Court. I
expect many of those questions will now be litigated in these criminal
cases.
I have to say with some confidence, however, that every district
court that has now reviewed an order of the Foreign Intelligence
Surveillance Court in a subsequent criminal prosecution has upheld the
action of our court, and every circuit court of appeals that has
reviewed such a case has now done the same. The Supreme Court has never
granted certiorari in such a case. So I say to you, this is a court we
can be very proud of. We add a measure of protection that heretofore
did not exist, to insure that national security surveillances are
conducted for valid reasons, in the best interests of our nation and not
for some political reason. And I think the independence of Article III
judges appointed for life, whose only obligation is to do what's right,
helps insure that our national security surveillances are properly
conducted with appropriate safeguards for all our citizens. I don't
know how a better system could be devised. And I said to the ABA in
1997 that the age of spying is not over and the age of terrorism is just
dawning.
What words those were, five years ago. We're now well past the dawn.
The security of our nation requires the surveillances that we are
approving, in my view, and I personally am proud to be a part of this
process and to be witness to the dedicated and conscientious work of the
FBI, CIA, and Justice Department officials and agents who are doing a
truly outstanding job for all of us.
There have been a number of substantive and technical amendments to
the Foreign Intelligence Surveillance Act following the attacks on the
World Trade Center and the Pentagon on Sept. 11 of last year. Although
the effects of these amendments has not yet been fully determined, I'd
like to mention several of the most significant changes.
First, agents of foreign powers who act in the United States as
officers or employees of foreign powers are now subject to electronic
surveillance and physical search for up to one year instead of the
90-day and 45-day requirements in the prior statute. Second, the senior
government official certifying each electronic surveillance and
physical search need only certify that the collection of foreign
intelligence information is a significant purpose of the search or surveillance, instead of being the
purpose. Third, intelligence officers who conduct FISA searches and
surveillances may consult with the law enforcement officials to
coordinate their investigations. Fourth, if the government can show
that a target of electronic surveillance is taking defensive measures to
thwart FBI surveillance, the court can direct the cooperation of
unspecified common carriers to affect the surveillance -- i.e., a roving
surveillance.
Fifth, the size of the court has increased from seven to eleven
judges, and three must now be located within 20 miles of Washington,
D.C. to ease the burden of emergency applications. Last, in certain
emergency circumstances, the attorney general can immediately implement a
surveillance by notifying the court and then presenting the written
application within 24 hours. That time period is now extended to 72
hours in the Intelligence Authorization Act this year. If the
application is not approved by a judge within that time period, the
surveillance must be terminated and all copies sequestered. How well
this provision will really work remains to be seen -- I now see
everything in the 71st hour instead of the 23rd hour. But Attorney
General Ashcroft has assured me that he is staffing up the effort, and I
do hope to see improvement.
I will give you a short aside. We took a three day trip for a Bar
dinner in New York in March. Over the course of the three days -- we
went up on Friday for a Friday night Bar dinner and we were going to
spend the weekend in New York -- over the course of the three days I had
11 emergency notifications by phone in New York, so as soon as I
arrived back in Washington on Sunday night I had a busy evening. But
with the 72-hour provision, at least they didn't have to fly to New York
within the 24 hours, so the 72-hour provision probably will, in fact,
help.
I also want to talk about another statute that Congress enacted, this
one in 1980: the Classified Information Procedure Act, which we call
CIPA. It will be extraordinarily useful as the courts struggle to deal
with classified information that is involved in the terrorist cases that
we now have, and those that are coming. I'd like to talk about the
CIPA statute in connection with the case of U.S. v. Omar Mohammed Ali Rezaq,
which I tried in my role as a district judge in the District of
Columbia. Rezaq was convicted of air piracy resulting from his
hijacking of an Egypt airplane in 1985, which was forced down in Malta.
After gathering their passports, all of the Americans and Israelis on
board were taken to the front of the plane and shot and thrown onto the
tarmack. Egyptian commandos then stormed the plane, resulting in 57
deaths, the bloodiest hijacking in the history of the world.
Rezaq was released by Malta after serving only seven years, and the
United States was able to get custody of him in Africa on July 15, 1993,
when he was flown direct to Dulles Airport and arraigned before me on
U.S. charges the next morning.
It turned out that we had extensive CIPA hearings, because of
information derived from sensitive intelligence sources and methods.
The defendant was never going to be cleared to participate in any CIPA
hearings, so virtually everything I did there under CIPA was done ex
parte. Everything was done on the record with a court reporter present,
and I issued a number of written classified opinions, all of which were
lodged with the Court of Appeals and all were classified either secret
or top secret. The D.C. Circuit affirmed me and heartily endorsed the
CIPA procedures that I followed, and I think they will, and my opinions
there, will be a road map for judges with new terrorist cases now.
Indeed, since that kind of affirmance of me doesn't happen to me that
often, I'm going to give you the exact quote from the D.C. Circuit.
[Audience laughter.] The D.C. Circuit, at 134F 3rd 1121 at 1143 (CK)
said "We find the District Court did a commendable job of discharging
its obligations under CIPA, and in particular that its orders protected
Rezaq's rights very effectively, despite the fact that Rezaq's attorney
was unable to participate in the CIPA proceedings." I sentenced Rezaq
to life in prison, a term that he's now serving in return for the
agreement under which he came back to the country -- Attorney [General]
Reno had to promise a foreign nation that the government would not seek
the death penalty. So life was the maximum he could be given.
I currently have another terrorist case pending. Again, it's pre-9/11, and this case is the case of United States v. Mohammed Rashid,
who's currently pending trial before me. Rashid is charged with
placing a bomb on a 1982 Pan Am flight from Tokyo to Honolulu, killing
one and wounding 15 passengers. He's also charged with conspiring to
place a bomb on a Pan Am aircraft in Rio de Janeiro, a bomb that luckily
was discovered and removed safely. I'm currently in the midst of CIPA
hearings to determine the defendant's right to obtain materials related
to the conditions under which he was held by foreign authorities before
he was turned over to the FBI to be flown back to Dulles Airport for
arraignment before me. Rashid made statements to the FBI agents on the
plane that the government seeks to use at his trial.
Rashid wants to explore claims that he was tortured and drugged by
foreign officials before he came into the FBI's custody, so there are
many legal issues still to be resolved there. But again, I think CIPA
provides a framework that will allow me to get through this thicket in a
way acceptable to the D.C. Circuit. I'm not sure they'll find my
actions commendable next time, but I'll be happy if they just aren't
reversible.
There is another category of cases that I want to talk about, and
that is those cases brought against terrorist states under the Foreign
Sovereign Immunities Act. In 1996, Congress enacted what is commonly
referred to as the Flatow Amendment that created a cause of action for
United States nationals against foreign states and their agents that
commit acts of terrorism or provide material support to individuals or
entities that commit such acts. The Flatow Amendment is named after
Alisa Flatow, who was a 20-year-old Brandeis University student spending
a semester abroad in Israel was killed when a member of a faction of
the Palestine Islamic Jihad drove a van loaded with explosives into the
bus within which she was riding. Alisa Flatow's father, as
administrator of her estate, filed a wrongful death suit in my court
against the Islamic Republic of Iran, the Iranian Ministry of
Information and Security, and two high ranking Iranian officials.
I presided over the case, and after conducting a trial in which none
of the defendants entered an appearance, found by clear and convincing
evidence that the Iranian officials had provided material support, and
resources to Palestine Islamic Jihad by supplying funds and training for
the faction's terrorist activities, and accordingly, I entered a
judgment of default against the Iranian defendants and awarded both
compensatory and punitive damages to the plaintiff. After I ruled that
seized Iranian assets in the hands of the U.S. Treasury were not subject
to attachment to satisfy the judgment in the Flatow case, Congress
passed another statute to allow the estate of Alisa Flatow to recover
compensatory, but not punitive damages, from the seized Iranian assets.
Since Flatow, numerous victims of terrorist attacks have now filed
suit against the Islamic Republic of Iran and its agents under the
Flatow Amendment to the Foreign Sovereign Immunities Act. I've presided
over several of these cases now, including Jenko v. Islamic Republic of Iran, which involved Father Lawrence Jenko, who was held captive and tortured for more than a year in Lebanon by Hezbollah, Eisenfeld v. Islamic Republic of Iran, and Weinstein v. Islamic Republic of Iran,
both of which involved, like Flatow, a bus bombing in Israel. In
addition, I have several pending cases that involve terrorist acts, such
as, for example, the attack on the Marine barracks in Beirut back in
the mid-1980s. As a result of these and earlier cases, it's my view
that lawsuits brought against state sponsors of terrorism will become,
if it is not already, its own cottage industry in Washington, D.C.
Several criminal trials of terrorist and others are now scheduled.
John Walker Lindh, the American who fought with the Taliban, is set for
trial this summer before U.S. District Judge T.S. Ellis in Alexandria.
Zacharias Moussaoui, the alleged 20th hijacker of 9/11, is set for trial
in September before U.S. District Judge Leonie Brinkema in Alexandria.
Robert Reid, the alleged shoe bomber, will be tried before U.S.
District Judge William Young in Boston, which is where he was taken off a
plane from London. A number of other indictments have been returned,
many of which are still sealed until the defendant is in the custody of
the United States. One that has been unsealed is the person in Pakistan
alleged to be responsible for the death of Wall Street Journal reporter Daniel Pearl.
The federal courts are prepared for whatever comes our way in the war on terrorism, and I personally take great pride in the way we have responded. Thanks for letting me share these thoughts with you today. I've tried to speak plainly. I guess we'll find out how much trouble I've gotten in in the next few days. But I'll see if I can get in a little more trouble and take as many questions as you want to throw my way. If you'll step up to the microphone, they'll be able to record your questions. And don't be bashful; it's one of the few times you'll ever get to ask the judge a question. [Audience laughter.]
I guess I had been on the bench about a year when I had a young
lawyer say to me, "Judge, are you going to give me a basis for that
ruling?" [Audience laughter.] And I thought, you know, it was a little
much for me, and I said, "You know, there aren't too many advantages
being on this side of the bench, but one is I get to ask you questions;
you don't get to ask me any." So when the Court of Appeals for the D.C.
Circuit reversed and remanded for my statement of reasons, in their
opinion -- they decided to teach a new judge a lesson -- and so in their
opinion they put the whole exchange, NF 3rd (?), with the direct quote
from the transcript, only they put "defense lawyer," not giving Patrick
Donahue, his name. When I tell this story I always say "Patrick
Donahue." They did put Judge Lamberth, to make sure everybody knew who
the dumb judge was. [Audience laughter.] So I always like to say it is
one of the few times you can ask a judge a question. So you lawyers
have at it.
Source: http://www.pbs.org/
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