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One of the reasons few people know about the Foreign Intelligence Surveillance Act is that few cases involving FISA information have made it into court. Consequently, the development of FISA law is sparse. But FISA has turned up from time to time. In 1993, government agents obtained a FISA warrant on Aldrich Ames, a CIA official suspected of exposing U.S. double agents to the Soviet Union. Following his arrest, Ames’ attorney made it clear he was going to attack the indictment since the FISA warrant wasn’t signed by a U.S. magistrate, as is normal with wiretaps. The gambit put a scare into the Justice Department, according to the book “Main Justice: The Men and Women Who Enforce the Nation’s Criminal Laws and Guard Its Liberties” by Jim McGee and Brian Duffy. The strategy would challenge the availability of information obtained through FISA for criminal prosecutors. But it never came to a head. The issue became moot when Ames pleaded guilty. “Ames’ wife was also under arrest and he was interested that she receive some lenient treatment,” Ames’ attorney, Plato Cacheris, told The Recorder. “I can tell you as a lawyer I wished that he would have let us argue it, but he didn’t.” The 1995 expansion of FISA to cover physical searches was a direct response to the Ames case, Cacheris said. The move appeared to spur the number of warrants sought. In 1994, there were 576 FISA warrants issued. That number has since doubled. If Cacheris didn’t see his day in court, perhaps his arguments will. A new case is traveling down the road where Cacheris seemed headed. Last year, New York attorney Lynne Stewart was indicted for putting out a press release for her client, Sheik Abdel Rahman, a leader of the Islamic Group who was convicted for the 1995 bombing of the World Trade Center. Earlier this month, her attorney, Michael Tigar, signaled that he would attack the use of FISA warrants to develop the information against his client. He will be able to brief the FISA issue more fully at a later stage in the case, but Tigar has already asked U.S. District Judge John George Koeltl to order the government to produce an affidavit describing when the conduct at issue became the focus of a criminal investigation. FISA was a compromise, Tigar said. “It was enacted while cases [dealing with surveillance and national security] were winding their way through the courts. The protections that were designed within the statutes, unfortunately, have not been observed. That, I believe, is the product of this extraordinary secrecy.” The FISA process suffers from the absence of adversarial arguments, Tigar said. And he is concerned that their increased availability will make them easier for the government to abuse. “If you give a government agency two sets of powers — one for which it has to be accountable and one for which it doesn’t — guess which one it is going to use.”

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