from the FAS Project on Government Secrecy
April 23, 2001
SUPREME COURT REBUFFS FISA CHALLENGE
- SUPREME COURT REBUFFS FISA CHALLENGE
- RELEASE OF NATIONAL INTELLIGENCE DAILY SOUGHT
- CIA FILES ON NAZI LEADERS TO BE OPENED
Last week the U.S. Supreme Court dismissed the most serious challenge to the Foreign Intelligence Surveillance Act (FISA) that has arisen since that 1978 statute was adopted, leaving the government's counterintelligence surveillance authority completely exempt from adversarial review in a court of law.
The FISA established a secret court to provide authorization for electronic surveillance and clandestine physical search of U.S. persons who are suspected of being foreign agents. The use of this law was challenged in a petition filed last year on behalf of Theresa M. Squillacote and Kurt A. Stand, a married couple who were convicted in 1998 of conspiring to commit espionage on behalf of East Germany, the Soviet Union, Russia, and South Africa.
In the course of their investigation of Squillacote and Stand, the FBI requested and received 20 separate FISA authorizations for surveillance that lasted 550 consecutive days. Based almost exclusively on evidence collected in this counterintelligence mode, Squillacote was sentenced to nearly 22 years in prison, and Stand to more than 17 years.
As a matter of law, the accused spies were entitled during their trial to question the basis for the government's surveillance and search of their home. It is part of their constitutional right to due process and is acknowledged by the language of the FISA itself.
In practice, however, that right was all but nullified because attorneys for Squillacote and Stand were never permitted to see the underlying documentation that the government used to justify the surveillance, not even on a classified basis.
"To this very day, petitioners... have never seen the application that the government submitted to receive authorization to tap petitioners' phones, bug their bedroom, search their belongings, download their computer, even intercept their phone conversations while they were staying in a hotel on vacation," attorneys for the defendants wrote in their petition last December. "That is, to say the least, a striking anomaly in federal criminal law."
"'Sure, you can challenge probable cause,' the government tells us; 'you just can't look at the affidavits that purport to establish it'," the attorneys wrote last month. "'Sure, there must be sufficient evidence that petitioners were agents of a foreign power at the time the FISA authority was granted -- but you have to take our word for that'."
On logical and procedural grounds, the defendants' attorneys raised objections that are more fundamental and more substantial than those in any past FISA dispute. Among other things, attorneys argued that improper use was made of intercepted conversations with Squillacote's psychotherapist, and that the government incorrectly implied that transmission of information that was in the public domain could be a violation of the Espionage Act. "This works a troubling and unjustified expansion of the espionage law."
The government naturally views the case differently. Government attorneys insisted that all required procedures were followed at all times, and that access to the FISA applications by the defendants' attorneys was correctly denied on national security grounds. They noted further that the investigation and prosecution of Squillacote and Stand survived multiple layers of judicial review and that their conviction was upheld on appeal.
But whatever else might be true in this particular case, it seems clear that the FISA is not working the way Congress originally intended it to work.
Thus, for example, the FISA specifically permits courts to disclose all or parts of a FISA application to a defendant who is being prosecuted so that he or she may challenge the application's legality. Yet "there are no reported cases in which any Court has authorized such a disclosure."
Likewise, the FISA created an appeals court to consider government applications for surveillance that are denied by the regular FISA court. But this three-person appeals court has never had occasion to meet, since surveillance applications are almost never denied. (In 1997, one application was rejected "with leave to amend," but the government withdrew it from further consideration.)
The refusal of the Supreme Court to hear the Squillacote case makes it likely that constitutional due process rights will remain subordinate to alleged national security concerns for the foreseeable future. At issue, of course, are not merely the rights of suspected spies but of every American.
"This Court has never examined the lawfulness of this FISA provision, which permits sweeping invasions of privacy against United States citizens and then permits the government and the courts to deny defendants access to the applications and affidavits that purported to establish the probable cause basis in the first place."
"If this case does not warrant disclosure of the underlying affidavits, no case ever will," the defense attorneys wrote. They are probably right.
The December 2000 Petition to the Supreme Court, along with the government's March 2001 reply, and the petitioners' reply to the government are all posted here:
The Petition was denied on April 16.
RELEASE OF NATIONAL INTELLIGENCE DAILY SOUGHT
The Interagency Security Classification Appeals Panel (ISCAP) is preparing to consider for the first time whether to declassify several issues of the National Intelligence Daily from 1963.
The National Intelligence Daily (NID) is published by the CIA, in cooperation with other parts of the intelligence community, and distributed to a limited number of senior policymakers and military commands. It is one of the intelligence community's classification "icons"-- a term that refers to categories of information that are reflexively classified, without serious evaluation of any national security threat their release might pose. These icons are rarely or never declassified, no matter what the law, or the U.S. Constitution, might say.
Declassification of NIDs that were prepared immediately prior to and after President Kennedy's assassination in 1963 was requested by researcher Michael Ravnitzky. When the requested documents were not released by the CIA -- it would be superfluous to ask why -- Ravnitzky turned to the ISCAP, an executive branch body created by President Clinton's executive order 12958 to consider contested classification issues.
The requested documents will be circulated for review to ISCAP members over the next week or so, said ISCAP executive secretary Steven Garfinkel, who is also director of the Information Security Oversight Office, among several other official positions that he holds.
Mr. Garfinkel would not predict the outcome of the process. "I expect the discussion to be active, and a decision may take some time."
He indicated, however, that it was not a foregone conclusion that CIA's opposition to declassification of the NIDs would prevail. "The ISCAP has previously voted contrary to the position of the DCI's representative on some appeals. Until the ISCAP's records are made public under the Presidential Records Act, I am not in a position to tell you the specifics."
Background information on the ISCAP is available here:
CIA FILES ON NAZI LEADERS TO BE OPENED
The first of several hundred CIA files on Nazi officials will be released at the end of this week by the Interagency Working Group on Nazi War Crimes and Japanese Imperial Government Records.
"The CIA rarely releases such files, which are diverse collections of information on individuals considered significant by the Agency," according to a press release issued by the Interagency Working Group (IWG). "The 20 [files] being released are the first of several hundred related to war crimes or suspected Nazi war criminals that will be made public by the IWG."
The documents will be presented at a press briefing at the U.S. Holocaust Memorial Museum on April 27 and will be available to the public at the National Archives.
See the April 23 IWG press release here:
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