FISA is a Menace

I first learned about FISA in October 1997, while reading the government’s surprising charges of espionage against a friend, his wife and a friend of theirs. A decade earlier I had graduated from a good eastern law school. I had taken the standard first-year course in criminal procedure; later, I had written a seminar paper on warrantless searches. I wasn’t a criminal defense attorney or a legal scholar, and I’m still not. But I was working at the time as a lawyer in a federal agency that supports investigations.  I had more than a passing acquaintance with constitutional principles, and I also knew the nature of the information one can expect to find in criminal charging papers.

Nonetheless, I was reading the criminal complaint in U.S. v Stand, et al., in speechless wonder and incredulity. My friend of 13-14 or so years had just been arrested; the news accounts were bizarre; and what the hell was going on here?

The usual: character assassination and the smug rhetoric of law enforcement interwoven with actual factual assertions, claims of investigative authority, references to statutes and regulations, statements of informants.

And then: items encountered in defendants’ home when they were not there; information on defendants’ computer hard drive in their home – evidence against them obtained from their home – months, even a year or more before their arrest – items used to design and execute further undercover operations. Whoa whoa whoa, wait a minute. Investigative activities conducted lawfully pursuant to the Foreign Intelligence Surveillance Act. FISA. The what? Excuse me?

The FISA law, the brick wall. The secret FISA File, the black hole. FISA the constitutional joke. FISA the worm that left me in the pit of my stomach doubting the legitimacy of any criminal action against any party, ever again, in the federal courts.

Privacy; the right to be secure in one’s papers, etc.; the Exclusionary Rule, that bygone attempt to give meaning to the rights of accused people; post-9/11, war on terror, NSA, Total Information Awareness, 4th amendment – I’ll leave all of that to the current rhetoric of convenience. For me, already living with the idea of unfettered surveillance, privacy is not an issue.

The cause for outrage about FISA is secret evidence.

My friend, who is now my husband, had a trial that lasted for days. It took place in the open, people testified under oath, there was a jury, lots of evidence, the opportunity to cross-examine the evidence presented. There never was any evidence that he passed classified information, only circumstantial suggestions related to the FBI operation. I attended a number of the pre-trial hearings, was there with other friends most afternoons while the trial was on, and we went to stand behind him when the sentence was read.  It was seventeen years for an offense that was not the actual crime of espionage.

This I remember: no testimony, no consideration, no factor, no point of fact or law spoke louder against him than the secret evidence. What did the FBI put before the FISA court to get the warrants to tape the phone calls, search the house in secret, bug the bedroom, download the computer? We don’t know, it’s in the FISA File. We’ll never know. What did the FISA Court look at each time it renewed the warrants, over and over? We don’t know. We’ll never know. It must be pretty damning evidence to justify an investigation of this length and intensity. Right?

What if the FBI fabricated something to make the FISA Court think my friend was a real bad actor? What if some rogue agent or prosecutor dropped something bogus into the secret FISA File to make his job easier? It’s not so far-fetched; one of the prosecutors went on to lead the government’s Moussaoui case, in which egregious misconduct by the government came to light before it slipped into darkness. What if some things in the FISA File are simply erroneous? We know how the FBI dissembled in the public part of the trial; anyone who knew these defendants could hear the half-truths and distortions. But we’ll never know what’s in the secret FISA File.

Secret allegations in the FISA File justified a rolling investigation over a couple of years in which nothing illegal happened until the FBI operation successfully created an offense. The trial judge, throughout, deferred to the FISA Court about information the government had and my friend and his lawyers could not have. The existence of the secret FISA File, like an evil charm, hung over every proceeding, including the sentencing. Something unspeakable was present. The existence of the secret evidence also infected the mainstream news accounts. I remember. It functioned purely as innuendo.

Now, in hindsight, it was a big expensive case and a bit of show trial, really. Lots of FBI and Justice people came to watch, every day. The lead investigator went on to make his name clearing the FBI of any wrong-doing in the badly mishandled Wen Ho Lee investigation, and then he became a judge. All of them had failed to detect and arrest actual terrorist plots that were under way in our country at the time. But their useless application of FISA authority was validated and rewarded.

Secret evidence is per se prejudicial, with or without a jury present. Secret evidence, its existence and reference to it, directly interfere with an accused person’s right to a fair trial, the right to confront fully the government’s case. Never in U.S. constitutional history, prior to FISA, has this principle been seriously challenged by thinking people, let alone totally abated by the judiciary.

The 6th Amendment guarantees an open process, confrontation with facts, before a person is led away in shackles. This used to be a simple notion. FISA was enacted on a slippery slope that later shot through the Patriot Act, landing in Guantanamo Bay, and who knows where else.

Yes, FISA is unconstitutional. FISA is a menace.

Lisa Stand

March 2006