meaning as wary lawmakers from both sides of the
aisle pumped the brakes on a freight train loaded with new
surveillance powers, which the Bush administration had attempted to
hurtle through Congress.
Meanwhile, as the number of detainees mushroomed
from dozens to hundreds, civil libertarians wondered how far the
already blurred line between individual freedom and public safety
would move amid fresh talk of racial profiling and tighter controls on
Some of the items on the administration's wish
list appeared destined for mothballs without ever reaching a
congressional vote. However, one thing was clear: What had been
unthinkable before Sept. 11 suddenly became thinkable. But regardless
of whether that shift signaled a sea change or just some momentary
fine tuning to deal with an unprecedented crisis, two men wound up
very much in the middle.
Pennsylvania Gov. Tom Ridge assumed his new Cabinet-level post as the
head of homeland security on Oct. 8. Though President Bush promised
Ridge wouldn't be a figurehead, some experts on national security
and constitutional law recall similar pledges with past attempts to
organize energy policy and fight the drug war.
"We haven't had much luck with czars," says
Syracuse University law professor William C. Banks.
no less daunting, the challenges facing Attorney General John Ashcroft
and the Department of Justice were more readily apparent. On one hand,
Ashcroft had to convince Congress that the administration needed new
search-and-seizure powers immediately. On the other, he had to assuage
the fears of civil libertarians across the political spectrum that
those requests and others concerning immigration policy could trample
Perhaps unwittingly, Ashcroft also put his finger
on the deeper tension. "We must prevent first, prosecute second,"
he told the Senate Judiciary Committee.
Reconciling opposite interests
As attorney general, Ashcroft presides over both
the Justice Department's criminal division and the separate Office
of Intelligence Policy and Review. The FBI serves both masters,
investigating relatively garden-variety crimes and collecting
intelligence on threats to national security occurring on U.S. soil,
which also can entail the possibility of criminal conduct.
The quandary, experts say, lies in reconciling
the conflicting world views and regulations that guide prosecutors and
the intelligence community. Prosecutors do not want to blow their
cases, and spies do not want to blow their covers by sharing
information with each other. While prosecutors concentrate on pursuing
criminals after the fact, intelligence-gathering attempts to get to
the root of a problem and looks forward from there.
"I think prosecutors probably are going to have
to adjust to working and playing well with others in these mixed
national security and criminal things," says Stewart Baker, general
counsel to the National Security Agency during the Clinton
To be sure, initial legislative efforts to
recalibrate the delicate balance between individual freedom and public
safety bemused some experts. Bush, those experts say, already
possesses immense statutory power to act on his own without Congress
or extensive judicial involvement. Especially puzzling was the
Senate's passage of the Combating Terrorism Act of 2001 within 48
hours of the attacks. The measure added terrorism-related offenses and
some wiretapping powers to the same law used to fight mobsters and
drug dealers, commonly called Title III.
But since 1978, the government also has had at
its disposal the Foreign Intelligence Surveillance Act, or FISA. "In
all the terrorist investigations I'm aware of, they proceeded under
FISA," says Kenneth C. Bass III, who served as the Justice
Department's counsel for intelligence in the Carter administration.
"I cannot imagine them using Title III in this investigation. It's
beyond my comprehension."
Significantly, FISA contains a provision that
allows the government to conduct some surveillance for up to one year
before investigators have to ask for a court order. Title III limits
warrantless surveillance to 48 hours in emergency situations. In
addition, a specially designated secret court issues FISA surveillance
orders under more relaxed standards than Title III orders, which any
district judge may issue.
At any rate, getting a wiretap under FISA or
Title III doesn't appear too tricky, according to reports that
Justice is required to file with Congress and the Administrative
Office of the U.S. Courts. From 1996 through 2000, not a single
application was denied under either statute. During that period,
authorities requested 4,275 FISA wiretaps and physical searches. And
although the use of Title III wiretaps declined slightly during those
years, FISA orders rose to 1,005 in 2000 from 839 in 1996.
Despite its apparent advantages, FISA is limited
to surveillance of foreign powers, a definition that covers "a group
engaged in international terrorism," and largely excludes U.S.
citizens. Thus, the government may employ FISA both at home and
overseas in the investigation of the attacks on the World Trade Center
and Pentagon, but it can't use the act to spy on homegrown
terrorists such as Timothy McVeigh.
But the bipartisan National Commission on
Terrorism concluded in June 2000 that Justice historically had been
overly cautious in seeking FISA orders. While the statute requires
only probable cause to believe someone belongs to an international
terrorist organization, the commission found that intelligence
officials in the department also required evidence of wrongdoing or
specific knowledge of a group's intentions before they would
approach the FISA court.
Moreover, Justice officials generally didn't
use a section of the statute that allows the court to consider a
target's past activities in determining whether the government met
the probable-cause test.
A more detailed analysis by the General
Accounting Office - released less than a month before the September
attacks - zeroed in on the source of the conflict between
Justice's criminal and intelligence functions.
In criminal cases, trial courts considering
evidence obtained under FISA generally have admitted it by finding the
collection of foreign intelligence as the primary purpose of the
surveillance. And besides never being denied a surveillance order by
the secret court, the government never has lost a suppression motion
on FISA evidence.
However, GAO found that intelligence officials in
Justice and the FBI worried that close cooperation with the criminal
side could lead judges to question whether prosecution, not
intelligence-gathering, really was the primary purpose, and thus deny
FISA orders or suppress evidence. "[T]hese concerns inhibited
coordination [and] Criminal Division officials questioned their
reasonableness and believe that they had an adverse effect on the
strength of subsequent prosecutions," stated the GAO report,
released Aug. 16.
While some of the measures proposed to align FISA
with Title III in the immediate aftermath of the attacks may appear
redundant, a little redundancy never hurt, says Robert F. Turner,
associate director at the University of Virginia's Center for
National Security Law.
"There are gray areas out there in the current
law, and I don't have a problem with clarifying them," says
Turner, who served in the Reagan White House as counsel to the
president's intelligence oversight board. Other experts suggest that
beefing up Title III makes sense because the U.S. Supreme Court never
has confronted the constitutionality of FISA, despite the
government's perfect record in challenges decided at the district
and circuit court levels.
Still, internal conflicts at Justice are so
ingrained in the department's institutional culture that legislation
alone won't weed them out, says Paul Schott Stevens, legal adviser
to the National Security Council under President Reagan. Whether
it's Ashcroft or Ridge who ultimately winds up leading the charge
against terrorism, management style may be key, he says. "A lot of
it is strength of personality, energy and character."
Meanwhile, civil liberties advocates worried that
loose drafting of any legislation could invade privacy and create a
dragnet that could ensnare many innocent people. They expressed equal
alarm over the prospect of widespread racial profiling of people of
"I think there would be a difference if we were
looking for a specific perpetrator of a specific crime on a
description based on ethnicity," says ACLU President Nadine Strossen.
Hence another dilemma: When does a legitimate law
enforcement tactic cross the line and become racial profiling? Stevens
points out the Arab roots of defendants charged in the 1993 bombing of
the Trade Center and the 1998 bombings of the U.S. embassies in Kenya
and Tanzania, some of whom also may have plotted the September
"It would be crazy to tell our law enforcement
authorities that you have to ignore the fact that these people are
Arabs," Stevens says. At the same time, however, Stevens
acknowledges that race or ethnicity alone isn't especially useful in
a nation where as many as 3.5 million people may claim Arab ancestry.
Even if Congress went home tomorrow and left the
job to Bush alone, those concerns and more could become moot, as long
as the president kept the investigation focused on national security.
Indeed, the president is empowered to order even
more extensive searches and seizures in the name of national security
than current statutes allow. And government lawyers never have to set
foot in a judge's chambers to ask permission, says law professor
Robert N. Davis, adviser to the University of Mississippi's Journal
of National Security Law.
Davis and others point out that the Supreme
Court's Fourth Amendment jurisprudence turns on whether a search is
reasonable, not whether investigators first obtained a warrant. And
reasonableness is a fluid concept that ebbs and flows according to the
circumstances. In other words, the more dangerous the situation, the
more likely a court is to side with the government.
"There always has been a recognition of
inherent executive branch authority to collect foreign intelligence
material," Davis says.
Consider United States v. Osama bin Laden,
arising from the 1998 embassy bombings, which the exiled Saudi
millionaire is accused of planning. 126 F. Supp. 2d 264 (S.D.N.Y.
2000). There, Judge Leonard B. Sand extended the already-recognized
intelligence exception to the warrant requirement for domestically
collected information to the physical search of an American
citizen's home in Kenya. Sand cited Supreme Court precedent
suggesting that the Bill of Rights applies to U.S. citizens abroad.
However, he declined to expand the exception to electronic
surveillance conducted in Africa, yet he found the spying reasonable
and allowed the evidence anyway.
Spiritual motives cited for the Sept. 11 attacks
pose a similarly dicey prospect today, because accurate
intelligence-gathering in that context almost necessarily involves
spying on religious organizations.
"You have to tread carefully," says Suzanne
E. Spaulding, chair of the ABA Standing Committee on Law and National
Security. Spaulding also worked as executive director for the National
Commission on Terrorism, which last year urged more aggressive
intelligence-gathering on terrorists under existing statutory
"These folks are using religion as a
justification for their actions, but you can't say hands off,"
Spaulding says. "But at the same time, we cherish religious freedom
in this country."
In the meantime, Davis had been putting the final
touches on a law review article discussing FISA and other aspects of
national security. He hadn't reached a conclusion. But then two
hijacked airliners pierced the Trade Center's twin towers, a third
slammed into the Pentagon and a fourth crashed in rural Pennsylvania.
Now Davis has his conclusion. Looking back to 1978, he wonders whether
the nation has come full circle with its latest balancing act.
John Gibeaut is a senior writer for the ABA Journal. His e-mail
address is email@example.com.
Reprinted by permission of the ABA Journal.