Justice Is Blind, Not Deaf
By Victoria Toensing

In June 1985, TWA Flight 847, en route from Athens to Rome, was hijacked and forced to land in Lebanon.

The passengers were held hostage while the terrorists shot dead an American serviceman, Robert Stethem. Some passengers were released, but American males were forced from the plane and held as prisoners in the back alleys of Beirut. I had the terrorism portfolio in the Justice Department at the time and spent many hours in the Flight 847 situation room. "We have a FISA (Foreign Intelligence Surveillance Act) wire up in [an American city with a Mideast community] and we're pretty sure the kidnap­pers will be talking to them," an agent told us. That was welcome news from the FBI because if the Mideast and American groups were talking to each other we might locate the hiding places and execute a rescue.

What happened next defies common sense.  The  Justice Department office that oversees the FISA warrants ordered the FBI to shut down the tap.  Why?  Because the hijacking and kidnapping were bases for a criminal case; if we continued listening, a judge could decide that, at this point, the tap had the "primary purpose" to gain evidence of a crime. "FISA is only to be used when its primary purpose is for intelligence gathering," I was told. So, with U.S. citizens held captive by terrorists who had already murdered an American serviceman, we shut off our only known avenue to learn their location.

This week the Foreign Intelligence Court of Review helped assure that this will never happen again. The three-member court, assigned by Chief Justice William Rehnquist, restored common sense to FISA when it ruled that the law allows for greater cooperation between the FBI and Justice Department attorneys when it comes to the surveillance of suspected terrorists.

But before we get into the specifics of the ruling, it is important to remember how FISA came about.  FISA was passed in the wake of Watergate and President Nixon's warrantless domestic wiretaps, ordered in the name of national security.  The 1978 law allows the government to wiretap domestically to obtain "foreign intelligence information."  It was a compromise between liberals, who believed there should be no domestic taps but were concerned the Supreme Court would hold that the president had the authority to do so, and conservatives, who believed that the Constitution gave the president the power to tap for national security purposes but feared the high court might hold otherwise.

FISA requires the executive to present an affidavit to a judge of the FISA lower court, which is comprised of 11 federal judges appointed by the chief justice.  That affidavit must establish probable cause "to believe that the target is a foreign power or an agent of a foreign power," and that the instrument (telephone, fax, computer etc.) to be tapped is used by a foreign power or its agent.  It also requires a showing that the information is actually foreign intelligence information and cannot reasonably be obtained in some other way.  In sum, unless there is probable cause that you are, say, an agent of Syria, or such an agent is frequently using your phone to discuss, for example, a potential terrorist attack, sabotage or intelligence activities, you do not meet the standards.

The problem arose in the 1980s when the Jus­tice Department wrongly interpreted a case covering a pre-FISA tap (but decided after the law was passed), to prohibit a FISA tap when the "primary purpose" involved foreign intelligence crimes, rather than foreign intelligence information.  The 2002 Court found this distinction "puzzling," since the definition of foreign intelli­gence includes evidence of crimes such as espionage, sabotage and terrorism.

The cure for this wrongful interpretation be­came worse than the disease. To avoid violating the "primary purpose" test, the Clinton Justice Department implemented  a procedure in 1995 so that the FBI and the Justice Criminal Division had limited contacts under FISA surveillance.  If there might be a criminal prosecution, then the prosecutors could not even appear to have directed or consulted with the FBI. Eventually, a "wall" was erected to prevent FBI intelligence officials from communicating with Justice attorneys.

This "wall" obstructed all law enforcement and intelligence matters. For example, the court of review spe­cifically cited an FBI agent's recent Congressional testimony stating that efforts to conduct a criminal investigation of two of the Sept. 11 hijackers were blocked by senior FBI officials concerned about the FISA rules.

After Sept. 11, Con­gress amended FISA by rejecting the "primary purpose" test, and specifically sanctioning consultation and coordination between intelligence and law enforcement officials.  Even traditional liberals like Senators Pat Leahy and Dianne Feinstein supported the legislation, recognizing that law enforcement and intelligence gathering needed to be coordinated, and that it was difficult to determine at any point in an investigation which purpose is primary.

The FISA lower court refused to accept the changes and insisted on the legitimacy of the "wall."  The court of review, however, overruled this decision, saying that the FISA lower court had "erred," and that there was no constitu­tional or statutory basis for the mistake.  Further, the court of review found that there was no basis for a "wall" prior to the amendment.

The court's opinion does not expand in any way the category of who can be tapped under FISA.  One still has to be a foreign power or its agent. All "probable cause" standards remain as before.  The decision simply expands the government's ability to coordinate foreign intelligence investigations by recognizing reality: a¹ FISA wire-tap may be used to gather intelligence or to prosecute a suspected terrorist, but that cannot be determined until after the information is acquired.

There is, of course, no way of knowing whether the FISA "wall" between the FBI and the Justice Department prevented us from foiling the Sept. 11 terrorist attacks or the hijacking of Flight 847.  What is certain, however, is that without it we have a better chance of foiling future attacks.