FISA Warrants vs. Criminal Warrants

by on July 3, 2008 · 9 comments

On Julian‘s recommendation, I’m reading Peter Swire’s The System of Foreign Intelligence Surveillance Law, a good treatise on the basics of surveillance law. One of the things I didn’t realize is how rare non-FISA wiretapping actually is:

Comments I have heard in public from knowledgeable persons suggest that there has been ongoing expansion of who is considered an “agent of a foreign power.” Consider an individual who works in the United States for the Cali drug cartel. Is that person an “agent of a foreign power?” The Cali cartel is a highly organized group that physically controls a substantial amount of territory in Colombia. Given these facts, one might well argue that the Cali cartel is more of a “foreign power” than the amorphous Al Qaeda network. If one accepts the Cali cartel as a “foreign power,” and a major smuggler as an “agent of a foreign power,” would a street-level cocaine dealer also qualify as its agent? There is no clear line in the statute stating that the dealer would not be so considered. To take another example, what about the activities of the so-called “Russian mafia?” Many organized crime groups have links to overseas operations. How small can the links back home be to still qualify that group’s actions as on behalf of a foreign power?

These examples, it turns out, go to the heart of whether Title III will continue to be a significant part of the overall American system of electronic surveillance. The threat of organized crime was a principal justification in 1968 for the extraordinary intrusion of performing wiretaps under Title III. Over time, narcotics and organized crime cases have constituted the vast bulk of federal Title III wiretaps. In 2002, for instance, narcotics cases numbered 406 (81%) and racketeering cases fifty-nine (12%) of the 497 total federal wiretaps. Yet an expansion of the definition of “agent of a foreign power” could render Title III wiretaps almost obsolete. Many heroin, cocaine, and other drug cases are linked to imported narcotics. Many organized crime cases in this era of globalization have significant links to overseas activities. FISA orders already outnumbered Title III orders in 2003.302 If most drug cases and organized crime cases shift to the secret world of FISA, then the constitutional teachings of Katz and Berger may have little effect.

In debates about U.S. wiretap law there is often an implicit assumption that Title III wiretaps are the “normal” means of surveillance, with FISA orders as an exception used for embassies and other foreign intelligence functions. The available statistics, though, show that in 2002 the federal government secured 497 Title III orders compared to 1228 FISA orders. Title III orders were thus only 28.8% of the total for that year.

This suggests that the FISA debate may in some sense shape the future of wiretapping generally. A decade from now, virtually all wiretapping may be conducted via FISA warrants, with trumped-up rationales linking almost every suspect, however tenuously, to a “foreign power.” Because the details of individual FISA intercepts are never made public, the public will never have the opportunity to examine how these warrants are being used and whether FISA’s expansive definition of “foreign intelligence” is being abused. We’ll simply see the number of FISA warrants continue to climb, while the number of ordinary criminal (“Title III”) warrants continues to fall. Of course, the Jindal administration will assure us that every single warrant is related to a Chinese spy or an Al Qaeda terrorist, and we’ll have little choice but to take their word for it because the raw data won’t be known to anyone other than the NSA and the FISC judges.

This, it should be remembered, is how things work under the current FISA statute, as amended by the Patriot Act in 2001. Domestic wiretapping is already much easier to do today than it was under the Clinton administration. Yet the current FISA rules at least require individual judicial oversight of each surveillance target, a principle that will be even further eroded if the Senate passes the latest House FISA bill. I’m not optimistic that legislation can be stopped, but even if it is, civil libertarians should not rest on their laurels; the laws on the books today are already too permissive.

One of the most problematic aspects of the increasing use of FISA wiretaps for ordinary criminal investigations is that criminal defendants are often not allowed to see the evidence against them, for fear that such disclosure would compromise “sources and methods” of intelligence gathering. This strikes me as a blatant violation of the Sixth Amendment’s requirement that defendants be given the opportunity to confront their accusers, and I have to imagine (or at least hope) that if the use of FISA evidence in criminal cases becomes more common, some defendant will challenge its use on Sixth Amendment grounds.

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