Secret US court handed new power to fight terror

By Scott Shane

Oct. 29— In the government’s all-out campaign against terrorism, it is one of the least-known and most important fronts: a windowless, soundproof, cipher-locked room on the sixth floor of the Department on Justice in Washington.

Inside, the judges of America’s secret court, the Foreign Intelligence Surveillance Act Court (FISA), rule on requests to tap the phones, bug the rooms, and break into the houses of terror suspects on US soil.

With President Bush’s signing Friday, Oct. 26, of sweeping new anti-terror legislation, the secret court’s jurisdiction has been widely expanded. Attorney General John Ashcroft said he would order investigators to immediately use the new wiretap powers to track down those responsible for the Sept. 11 and anthrax attacks and to prevent new acts of terror. With authorities on highest alert, the FBI and the National Security Agency (NSA) are casting a wide surveillance net, targeting suspicious foreigners in the United States. FISA court warrants are a key tool, because they can be issued on the basis of far less evidence than traditional criminal warrants.

Previously, the secret court could issue warrants only when the collection of foreign intelligence was “the purpose” of the bug or search. The new law allows the court to act when intelligence is “a significant purpose,” allowing criminal investigation as a simultaneous goal. Advocates of the change say it merely updates the original 1978 FISA law to cope with terrorism. Intelligence surveillance often grows into criminal cases, as wiretaps reveal plans for terrorism or other crimes. The new law merely acknowledges that fact, they say.

Stewart A. Baker, a Washington attorney who served as NSA general counsel from 1992 to 1994, says the expanded authority of the FISA court is justified and timely.

“Now there’s almost no national security problem that doesn’t have a law enforcement aspect,” Baker says. “We’re all aware there’s a foreign terrorist gang operating inside the US.”

But the court’s new powers, which expire in 2005 if not renewed by Congress, disturb some civil liberties advocates. They say the change weakens constitutional protections by enabling the FBI to circumvent the requirements for criminal wiretap warrants.

“I’m as afraid of terrorism as the next person,” says David Cole, a Georgetown University law professor who opposed the changes. “But if we give up our principles, what are we fighting for?”

Critics, such as Cole, were already unhappy with the court’s absolute secrecy and history of granting virtually all warrant requests the FBI and spy agencies seek. Its scorecard since 1979: 12,178 warrants approved, 1 denied.

Even before the law passed, the FISA court had never been busier. Last year it approved a record 1,005 warrants for eavesdropping and covert entries, twice the number in 1993 and more than double the 479 wiretap warrants issued by federal judges nationwide in all criminal cases. Legal observers say that record will be shattered.

“We’re likely to see an explosion in the number of foreign intelligence surveillance authorizations,” says David L. Sobel, general counsel for the Electronic Privacy Information Center, a civil liberties group in Washington.

There is no way of knowing for certain what goes on in that sixth-floor chamber. The annual number of warrants applied for and granted is the only record made public. “No one knows very much about the FISA court because it’s so secret,” says Cole.

The court gets no mention on the US judiciary system’s voluminous websites. “It’s a court that would rather operate, and can operate more efficiently, without a lot of media attention,” said David A. Sellers, a spokesman for the Administrative Office of the US Courts. However, he did make available a list of the seven FISA court judges. Chief Judge Royce C. Lamberth and three other judges turned down interview requests.

The court’s members, appointed to seven-year terms by the chief justice of the Supreme Court, are federal judges who work most of the time in their home states on criminal and civil cases. They come to Washington to sit in FISA court in two-week rotations, working alone to review warrant requests.

Despite its secrecy, the court has surfaced in dozens of important criminal cases, from the World Trade Center bombing of 1993 to the prosecutions of John A. Walker Jr., Aldrich H. Ames, and Robert P. Hanssen for spying. One 1998 espionage case, in which a married couple were charged with spying for East Germany, revealed the intensive surveillance possible with the court’s sanction.

The couple, Theresa Squillicote and Kurt Strand, were the targets of telephone taps, an electronic bug in their bedroom, two clandestine searches of their house, and a download of files from their home computer. Agents even listened in while they talked to their psychotherapists, according to documents made public when their lawyers unsuccessfully challenged the FISA statute.

Despite its broad application in such cases, Bush administration officials decided after the Sept. 11 attacks that the FISA court needed more power. They may have been spurred by an episode that has tormented investigators by raising the possibility that the attacks might have been prevented.

A month before the attacks, FBI agents wanted to seek a FISA warrant against a Moroccan-born French citizen, Zacarias Moussaoui, who was arrested Aug. 17 on immigration charges after seeking training to fly but not land, jetliners. But FBI supervisors decided that there was insufficient evidence under the FISA law to seek a warrant, according to FBI Director Robert S. Mueller III. Now, having tracked phone calls and wire transfers between Moussaoui and the Sept. 11 hijackers, authorities believe Moussaoui may have planned to become the “20th hijacker,” though he has not been charged in the plot.

It’s unclear whether the changes in the FISA law would have made it easier to target Moussaoui, but the changes that took effect Friday, Oct. 26 increase the secret court’s powers. The new measure lengthens the term of its warrants from 45 to 120 days, with extensions permitted for up to a year. Warrants now target a person rather than a specific telephone number, a change Ashcroft said is necessary in an era of disposable cell phones.

Most of the objections, however, concern the blurring of the distinction between criminal and intelligence warrants.

To get a criminal warrant, investigators must convince a judge that there is “probable cause” to believe the target has committed a crime. For a FISA warrant, by contrast, they must present evidence only that the person is “an agent of a foreign power,” such as a foreign nation or terrorist group.

“The concern is, you’re basically obliterating a very important distinction in the law,” says Sobel of the Electronic Privacy Information Center. “FISA was created for the most part for surveillance of foreign embassies. It lacks meaningful oversight and public accountability. There was no plan to use it for criminal prosecution.”

Ironically, when it was created in 1978, the FISA court was intended to provide some protection against intelligence wiretaps, which previously were performed at the whim of the president and attorney general. A congressional investigation disclosed that NSA intercepted the communications of thousands of US citizens targeted because of their political activities, from actress Jane Fonda to the Rev. Martin Luther King Jr.

The 1978 law forced the FBI and NSA to get the court’s permission for spying on US soil, whether on foreign citizens or Americans suspected of spying. A 1995 amendment required a FISA warrant if agents wanted to break in to search private premises.

“It was a significant improvement over prior practice,” says Steven Aftergood, who studies intelligence and secrecy at the Federation of American Scientists. He noted that in the 1999 investigation of Wen Ho Lee, a US nuclear scientist suspected of spying for China, Justice Department attorneys declined to ask the FISA court for a warrant because they didn’t think they could justify it.

“At that point, I was sold on the argument that FISA protects the civil liberties of innocent Americans,” Aftergood says. In his only public statement on the FISA court, Chief Judge Lamberth, a federal judge in Washington, disputed its reputation for never seeing a warrant application it didn’t like. Lamberth told an American Bar Association breakfast meeting in 1997 that he resented the charge that the court is a “rubber stamp for the executive branch.” While applications may not be rejected, he said, they are closely scrutinized and may be revised before being approved.

“I ask questions. I get into the nitty-gritty. I know exactly what’s going to be done and why,” he said. “I have pen-and-inked changes myself on the things.”

Lamberth said he couldn’t imagine a better system for balancing intelligence secrecy and privacy rights. Then he added a comment that seems prescient today.

“The age of spying is not over,” he said. “And the age of terrorism is just dawning.”

Source: www.sunspot.net/news

Court vindicates Seattle WTO protest measures

By Ian Ith

Seattle, Washington, Oct. 30— Seattle’s strict no-protest zones and curfews employed during the violent World Trade Organization clashes in the city in 1999 were ruled constitutional by a federal judge yesterday, dealing a blow to hundreds of protesters who sued the city over the downtown clampdown.

US District Judge Barbara Rothstein’s ruling, which affects every federal lawsuit stemming from WTO protests, said Mayor Paul Schell, acted appropriately under the emergency circumstances of the weeklong riots when he closed a 25-block area to protesters.

“Free speech must sometimes bend to public safety,” Rothstein wrote in the decision. “There is no evidence that the ‘manifest purpose’ of the city was to quell expression.”

More than 600 people have joined a class-action lawsuit against the city, Schell, and former Police Chief Norm Stamper, seeking damages for the curfew zones Schell imposed as anti-WTO protests escalated from Nov. 30 to Dec. 4, 1999.

In addition, other WTO protesters filed a separate suit with the help of the American Civil Liberties Union (ACLU), and a handful of protesters filed their own suits.

The protesters argue that Schell’s “Order Number Three,” barring protesters downtown — but allowing business owners, workers, shoppers and residents — violated First Amendment rights to free speech and assembly, and the 14th Amendment right to equal protection.

Rothstein’s ruling firmly rejected their arguments and essentially threw out all the lawsuits filed on those grounds.

The judge said the mayor’s order didn’t violate free speech because it was “content neutral,” meaning it didn’t prohibit one type of protest over another. And the judge said the emergency order was necessary for public safety and was made in good faith to protect the WTO conference.

“Safety is recognized as a significant government interest, as are the First Amendment rights of the WTO delegates,” Rothstein said.

“Finally, the evidence shows that the (city) had reason to implement the zone. The police had faced violent clashes with protesters for nearly 24 hours, and there is no evidence that the violence was expected to subside. Moreover, the President had just arrived in Seattle and intended to appear at the WTO conference. ... Chaos and vandalism continued unabated.”

Yesterday, Ted Buck, an attorney defending the city against the lawsuits, said he expects the ruling to spell the end of the legal challenges.

“That’s really going to knock the knees out from under them,” Buck said. “It should also be good news to the people who live and work in the city. What it means is that government has the authority to make sure they can continue to go to and fro, safely, even when there are people who would want to stop them from doing so. That’s somewhat comforting.”

Supporters of those suing the city said they were stunned by the decision.

The ACLU had been optimistic that its lawsuit was going to help set precedent in its favor, not against it.

Yesterday, it noted that the judge seemed to make no distinction between rioters and peaceful protesters who were caught in the fray.

“Our goal was to get a court decision that the no-protest zone violated free speech, so the next time the city had a large-scale protest, the city wouldn’t try to do the same thing,” said Doug Honig, public-education director for the Washington chapter of the ACLU.

“These people (who sued) were people who were in no way, shape or form a threat to public safety,” Honig said.

“We think people have a constitutional right, even in dangerous times, to say what they want to say politically. And the government can’t tell them there are regulations where you can’t go shopping or pass out political leaflets.”

Source: Seattle Times

Rights groups find post-Sept. 11 atmosphere difficult

By Susan Milligan

Washington, Nov. 5— Pressed for cash, Human Rights Watch recently appealed to foundations and individuals for financial help. From some donors, organization officials said, came a blunt answer: “We’re not going to do anything that involves criticism of the US government.”

It was a jarring development for the New York-based group, considered to be among the leading human rights watchdogs in the world. But it’s a situation many civil-liberties, civil-rights, and human-rights groups are facing, as a frightened American public reconsiders the national security costs of individual freedoms.

“This is the first time in a generation, probably the first time in two generations, that the American public has felt personally at risk,” said Ken Roth, Human Rights Watch’s executive director. “That has suddenly changed, and there are many people whose instinct is for the government to do whatever it takes to protect them.”

Groups like this are on the defensive, mindful that their voices may be lone -- or unwelcome -- at a time when the United States is waging a military war abroad and a terrorist dragnet at home.

People for the American Way, a leading free speech organization, briefly stopped its direct mail appeals after Sept. 11, and is cutting costs in the face of lagging fund-raising. Jeanne Butterfield, executive director of the American Immigration Lawyers Association, has stopped doing talk-radio shows to alert the public to the plight of 185 individuals in the custody of the Immigration and Naturalization Service under suspicion of terrorist activities or knowledge.

“All you do is get screamed at,” Butterfield said.

The events of Sept. 11 have forced the activists into an unanticipated and tough battle of their own. They are seeking to draw attention to civilian deaths and rights abuses in Afghanistan at a time when the American public is largely focused on the US military effort there.

They are trying to provide due process to arrested and detained immigrants at a time when Congress and the public are demanding a reassessment of immigration policy, and a tightening of US borders. Rights groups are questioning the new FBI authority granted in the antiterrorism package recently signed into law, at a time when many -- including the groups’ most devoted allies on Capitol Hill -- are calling for more powers for law enforcement to fight terrorists.

“Obviously, it’s in times like these that human-rights and civil-rights groups are the most challenged, because the values that we stand for and that we try to promote are under attack,” said Elisa Massimino, Washington director of the Lawyers Committee for Human Rights.

Butterfield said: “ We’re in a defensive posture. There’s not a lot of tolerance right now in this country for dissent of any kind. We’re going to have to craft our message differently and figure out how to reach them.”

“Our work is more essential today than it was two months ago,” said Kit Gage, director of the National Committee Against Repressive Legislation. “Is it scarier? Yes. Are we more likely to get hate mail? Yes.”

For immigration-control groups and law enforcement officials, the events of Sept. 11 underscored points they say they have been trying to communicate for years: borders are too porous, security too lax, and the reins on law enforcement too tight.

But lulled by peace and prosperity, the American public was reluctant to limit immigration further, said Dan Stein, executive director of the Federation for American Immigration Reform. “You could say that’s changed 180 degrees” in the last seven weeks, he said.

Attorney General John Ashcroft -- whom civil-liberties and civil-rights groups targeted for defeat when he was nominated this year -- got much of what he wanted in the antiterrorism package from Congress, drawing support from lawmakers in both parties.

Civil and human rights, Roth lamented, are not foremost in Americans’ minds. “I’ve done a few TV shows where I’ve been the lone voice against torturing terrorists,” Roth said. “The spectrum of permissible conduct has shifted.”

Nan Aron, head of the Alliance for Justice, said: “Obviously, there’s a sense that this administration has gone to great lengths to exploit the current sense of fear. To many of us, those fears are very real.” While her group will continue to fight for civil rights and liberties, “there’s a need to appreciate people’s sense of a lack of security,” she said.

Civil liberties leaders say they will soldier on, choosing their messages and the moments carefully. Amnesty International is keeping its focus on the use of torture, the forcible conscription of children as fighters for the Taliban, and civilian casualties in the war. “It is important to the US that we not sacrifice our own values and principles during wartime,” said Alex Arriaga, the organization’s director of government relations.

Human Rights Watch is counting civilian deaths in Afghanistan and is looking warily at political alliances they fear the United States may make with repressive regimes in the name of building an antiterrorist coalition.

People For the American Way’s executive director, Ralph Neas, has been lining up allies across the country to monitor the implementation of the antiterrorism package. The American Immigration Lawyers Association is trying to keep track of foreigners detained or arrested since Sept. 11.

“My feeling is that it’s in moments of crisis like this, in times of a national security threat, that our voice is the most unpopular and also the most important,” Roth said. “It’s easy to promote human rights when nothing is at stake.”

Source: Boston Globe

Judge denies student’s free speech rights

By Michelle Saxton

Charleston, West Virginia, Nov. 1— A judge ruled Thursday that a 15-year-old sophomore cannot form an anarchy club or wear T-shirts opposing the US bombing of Afghanistan because it would disrupt school.

Katie Sierra was suspended from Sissonville High School for three days for promoting the club. She was also told she could not wear T-shirts with messages such as: “When I saw the dead and dying Afghani children on TV, I felt a newly recovered sense of national security. God Bless America.”

In a complaint filed with her mother, Sierra argued her right to free speech was being denied.

Circuit Court Judge James Stucky agreed that free speech is “sacred” but he found that such rights are “tempered by the limitations that they ... not disrupt the educational process.”

Sierra said she’ll pursue the dispute.

“I don’t want war. I’m not for Afghanistan,” Sierra said. “I think that what we’re doing to them is just as bad as what they did to us, and I think it needs to be stopped.”

James Withrow, lawyer for the Kanawha County Board of Education, argued that an anarchy club was inappropriate because students “do not feel that their school is a safe place anymore.”

“Anarchy is the antithesis of what we believe should be in schools,” Withrow said.

Sierra’s attorney, Roger Forman, said she is “being punished for expressing her opinion.”

Source: Associated Press

Protesters to challenge suppression of free press

Statement of 4910 Collective

Atlanta, Georgia, Nov. 1— The 4910 Collective, along with an ad hoc alliance of local groups and concerned individuals, has planned a march and rally to condemn the lack of fair and representative media coverage of the US response to the Sept. 11 attacks and the US war against the Taliban. Scheduled for Saturday, Nov. 10, the march will begin at 12:00pm at Woodruff Park in Atlanta. The march will proceed to the CNN building where it will culminate into a rally featuring street theater, speakers, music, and puppets.

In a press release, the 4910 Collective et al. said that they are targeting CNN because “free press is essential to the functioning of democracy. When the media allows itself to be controlled both by complicity with the government and directly by corporate interests, it silences the debate necessary to create an aware and informed public. Furthermore, we denounce our government’s continuing efforts to erode our Constitutional rights and civil liberties all in the name of protecting freedom. We not only call for opposition to the war, but also for solidarity with Arab and Muslim communities and strongly object to violence, verbal or otherwise, against the members of these communities and anti-war supporters.”

For further information: sassyriot@netscape.net