[ISN] Wiretaps Authorized By Secret Federal Court

From: mea culpa (jerichot_private)
Date: Sun Oct 04 1998 - 23:52:06 PDT

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    USA Today, September 29, 1998
    Secrecy Might be Weak Link in Wiretaps
    By Richard Willing, USA TODAY
    ALEXANDRIA, Va. - Intelligence officials increasingly rely on wiretaps
    authorized by a secret federal court to keep track of foreign spies and
    potential terrorists. 
    But an espionage trial set to begin in federal court here next Tuesday
    highlights what even the secret court's supporters admit is its weakness: 
    The court's secrecy can make it very difficult for defendants caught on
    the wiretaps to defend themselves. 
    "If my client had been wiretapped based on (an ordinary federal) warrant,
    you can bet I'd be all over it," says Richard Sauber, a Washington, D.C.,
    lawyer defending accused spy Kurt Stand. 
    "But this isn't an ordinary warrant. Under law I can't find out what the
    wiretap was based on, whether the information was flawed, whether the
    judge was correct to authorize it. There's a fundamental issue of fairness
    here,"  Sauber says. 
    Ironically, fairness was cited as the issue in 1978, when the Foreign
    Intelligence Surveillance Act (FISA) created a special secret court for
    authorizing wiretaps on suspected spies. 
    The FISA court was created by Congress as a check against the power of
    presidents, who until then had authorized wiretaps and warrantless
    searches on their own say so in the interest of national security. 
    The law requires the Justice Department, and usually the FBI or the
    National Security Agency, to show a judge that the target is a foreign
    government or agent engaging in "clandestine intelligence gathering
    activities" or terrorism. "The spirit of the thing is to hold the (wiretap
    requests) to a high legal standard," says William Webster, director of the
    FBI when FISA was passed. "That's a large departure from the way things
    had been done." 
    Now, investigators prepare a written request and run it by Justice
    Department lawyers. Justice certifies that the tap's primary purpose is to
    gather intelligence, though information gleaned can be used in criminal
    The request then is presented to one of seven FISA judges, who are U.S. 
    district court judges appointed by the chief justice to authorize
    intelligence wiretaps. Many of the requests are heard in a soundproof
    sixth-floor conference room in the Justice Department's main headquarters. 
    The target of the search is not represented. 
    Says David Banisar, researcher for the Electronic Privacy Information
    Center: "There are mistakes made in ordinary warrant processes, from
    getting the wrong address to not having probable cause, and they can be
    corrected when lawyers attack the warrant. " 
    "That can't happen here," he says. "We'll never know how many mistakes are
    made because the (secret) court's proceeding isn't public." 
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