A FISA Case of Interest

"Mr. Bush and Vice President Dick Cheney then embarked on an expansion of presidential power chilling both in its sweep and in the damage it did to the constitutional system of checks and balances." – The Imperial Presidency 2.0; New York Times; January 7, 2007

In the past 72 hours, the news media has reported on a number of important issues, ranging from the President’s desire to read American citizen’s mail without a warrent, to the possibility of the increasing violence in Iraq, and of the possibility of a "low level" nuclear strike involving two countries in the Middle East. I was reminded of an August 14, 2006 Memorandum Opinion from the United States of America v. Steven J. Rosen and Keith Weissman. (Case 1:05-cr-00225-TSE Doc. 343-1)

A significant part of this document details FISA (the Foreign Intelligence Surveillance Act) and the role of the FISC (Foreign Intelligence Surveillance Court). The case involves the prosecution of three individuals who are accused of violations of the Espionage Act. One of the alleged co-conspirators, Lawrence Franklin, has already entered a guilty plea. He admitted to providing intelligence information relating to Iran to Rosen and Weissman, which he knew was being shared with other people not entitled to it, including foreign officials.

Part of the evidence against Rosen and Weissman was obtained by use of the FISA laws that President Bush has said are not adequate to protect the United States from foreign powers and/or agents of a foreign power that pose a threat to our national security. Let’s take a closer look at the 8-14 ruling by conservative U.S. District Judge T.S. Ellis, to see how well FISA actually works in real life situations.

FISA was enacted in 1978 by Congress, in order to help the Executive branch investigate foreign intelligence threats to the USA that tended to involve issues falling outside the general Amendment 4 protections provided to US citizens. It was an attempt to reduce the potential of Executive abuses of power, such as those being practiced daily by the Bush-Cheney administration. The FISA process also allows for those who face criminal prosecution in he US courts to contest any evidence gathered in related surveillances, as well. The process is not perfect, though it has the potential to work well. The Rosen & Weissman case is, in my opinion, a good example for our consideration.

In order to get authorization for electronic surveillance or physical searches of a foreign power or the agent of a foreign power, the government must file a sealed application with the FISC. This ex parte application includes case specific information that a FISC judge considers in determining if there is probable cause to believe that: {a} the target is a foreign power or agent for a foreign power; {b} that the facilities at which electronic surveillance is directed are being used by the foreign power or their agent; and {c} that for physical searches, the premises/property is owned or used by the foreign power or their agent.

In cases where the prosecution intends to use FISA evidence, they have to notify the "aggrieved person," who is either the target of the surveillance or someone whose communications or activities were subject to the surveillance, and the federal district court where the government plans to use the evidence. The aggrieved person can then try to have the evidence suppressed on either of two grounds: first, that the evidence was illegally obtained; or second, that it was obtained in a way that did not conform to the FISC Order.

It is important to keep in mind that any activity that is protected by the Bill of Rights, most specifically Amendment 1, cannot in and of itself be the target of an FISC order for surveillance. The defendants in this case have attempted to portray their activities as lobbyists, who simply interact with a variety of people, including US government officials, journalists, and foreign officials. In an earlier attempt to have the charges against them dismissed, they claimed that their being prosecuted posed a risk to a free press in the United States. A November 30 UPI article (High bar set in AIPAC case; Shaun Waterman) noted, " The Department of Justice routinely declines comment on ongoing cases, but prosecutors have said in court filings that they ‘recognize that a prosecution under the espionage laws of an actual member of the press… would raise legitimate and serious issues and would not be undertaken lightly. Indeed, the fact that there has never been such a prosecution speaks for itself’." The Memorandum Opinion denying the motion to dismiss was issued on 8-9-06.

In their motion to suppress the evidence gathered under the surveillance that resulted from the FISC Order, they "claim that the discovery obtained from the government contains a significant amount of non-foreign intelligence information." However, "Count One lists fifty-seven overt acts in furtherance of the conspiracy," and Judge Ellis notes the defendants rely "upon an inordinately narrow view of what constitutes foreign intelligence information."

Rosen and Weissman also argue that the FISC erred when "it found probable cause to believe that the targets are agents of a foreign power." Judge Ellis ruled that their argument is "without merit," and provides the pertinent parts of the statutes which defines "agents of a foreign power," and he provides context for phrases such as "clandestine intelligence gathering activities" and "collection or transmission of information or material that is not generally available to the public."

Judge Ellis ruled that there is "ample probable cause to believe" that Rosen and Weissman were indeed acting as agents for a foreign power. He has decided that the case will probably begin in the spring of this year. At this time, it is important to remember that the two former AIPAC officials have not been convicted of any crimes. However, Larry Franklin has admitted his guilt in an espionage case that involved providing military intelligence on Iran to an unidentified foreign power. It is a case that should be of great interest to all US citizens.