Is Blind, Not Deaf
By Victoria Toensing
June 1985, TWA Flight 847, en route from Athens to Rome, was hijacked and
forced to land in
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
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.
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.
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.
"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.
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.
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