California Bar Journal
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Winds of change blow through U.S. legal system after Sept. 11
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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 immigrants.

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.

Tom RidgeFormer 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.

John AshcroftThough 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 individual rights.

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 administration.

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 Arab descent.

"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 attacks.

"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 authority.

"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 Reprinted by permission of the ABA Journal.