, SecurityFocus 2001-05-02
Secret court authorizes more FBI taps, bugs and black bag jobs than ever before.
The government has enormous authority to engage in surveillance and physical searches that might arguably be unconstitutional.
The FBI's national security wiretapping in 2000 shattered the previous record of 886 applications in 1999, and took up the slack from an overall decrease in surveillance in conventional criminal investigations during the same period, according to figures the Department of Justice reported to Congress last week, obtained by the Federation of American Scientists (FAS) under the Freedom of Information Act.
The surveillance was authorized under the Foreign Intelligence Surveillance Act (FISA), a 1978 law that was originally intended to reign in the FBI and the intelligence community in the wake of decades of illegal domestic spying.
With FISA, Congress created a special five-judge panel in Washington, conveniently housed within Justice Department headquarters, to hear secret FBI testimony and issue orders for electronic surveillance against foreign nationals or U.S. citizens suspected of serving foreign governments. The Foreign Intelligence Surveillance Court operates under tight security, and its orders are never made public.
In addition to electronic surveillance, the panel also issues special "sneak and peek" search warrants allowing FBI agents to covertly enter a home or office to copy letters, journals and diaries, plant bugs, steal encryption keys, or install monitoring software or hardware on a target's computer.
The 2000 FISA report does not break down how many orders were for electronic surveillance, and how many were for physical intrusions.
Under FISA, a surveillance target is never notified that he or she was watched, except in the rare case where criminal charges are filed. Even then defendants are not entitled to review or challenge the evidence used to establish "probable cause" for the surveillance -- a situation unique in American jurisprudence.
"As it stands now, the government has enormous authority to engage in surveillance and physical searches that might arguably be unconstitutional," says FAS's Steven Aftergood. "It's a troubling law, and there are at least some of us who think that it needs to be refined."
Last month, the U.S. Supreme Court declined to hear the appeal of Theresa Squillacote, a former Pentagon lawyer, and her husband, Kurt Stand, who were convicted of espionage in part based on evidence obtained in 550 days of intimate FISA-authorized FBI
As in previous years, not a single FISA request was denied in 2000. But that may reflect Justice Department restraint as much as courtroom rubber-stamping. In 1999, then Attorney General Janet Reno came under fire in Congress when it was learned that the Department of Justice refused to pursue a 1997 FBI request for FISA surveillance on then-espionage suspect Wen Ho Lee. In a Senate hearing in June of that year, Reno explained, "the Department determined that the evidence was insufficient to support a finding of probable cause."
Of last year's applications, 1,003 of were approved before the end of the year, and the remaining two were approved in January 2001. Nine requests submitted in 1999 were also approved last year, for a total of 1,012 national security warrants granted in 2000.