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Since Sept. 11, the Foreign Intelligence Surveillance Act might be one of the most talked-about � and least understood � statutes on the books. Now the transcript of an extraordinary three-hour proceeding before the Foreign Intelligence Surveillance Court of Review offers a rare glimpse into the shadowy world of foreign intelligence gathering. The hearing marked the first-ever meeting of the review court since its creation in 1978, and the court recently released the 104-page transcript of the proceeding at the request of Republicans and Democrats on the Senate Judiciary Committee. For groups critical of the Bush administration’s bid to expand use of the Foreign Intelligence Surveillance Act, or FISA, to fight terrorism, the transcript intensifies concerns that the one-sided process lacks adequate safeguards. “We clearly believe the whole process was flawed,” says Ann Beeson, staff attorney at the American Civil Liberties Union, which filed an amicus curiae brief to the court. Applications to conduct FISA surveillance are made to the Foreign Intelligence Surveillance Court by the government in a nonadversarial, ex parte proceeding, and the Justice Department appeared before the review court unopposed Sept. 9, 2002. The FISA court of review’s three judges � Ralph Guy Jr. of the U.S. Court of Appeals for the 6th Circuit, Edward Leavy of the 9th Circuit, and Laurence Silberman of the D.C. Circuit � commented repeatedly on the unusual, one-sided nature of the argument. In some instances, the judges seemed solicitous of the Justice Department, granting the government unlimited time to present its case and asking Solicitor General Theodore Olson whether he felt the court should accept amicus briefs from outside parties. (Olson said yes.) At other moments, the judges themselves stepped into the adversarial role, aggressively questioning Olson and the other attorneys present. The review court sided with the administration, reversing the lower court’s ruling in a unanimous decision Nov. 18, 2002. In a recent interview with Legal Times, Guy, who sits as the review court’s chief judge, said the proceeding did not suffer for lack of opposing counsel. “We took amicus briefs from the ACLU and the criminal defense bar and they presented, I think completely, all the legal arguments,” Guy said. Yet things may change in future appeals to the FISA court of review. A draft legislative proposal prepared by the Justice Department as a follow-up to the 2001 USA Patriot Act includes a provision that would allow the review court to appoint a lawyer to defend the lower court’s decision. Some civil liberties advocates say the proposed change does not go far enough. “The provision allows the appointment of an advocate for the FISA court,” says Tim Edgar, legislative counsel for the ACLU. “We think it should also make sure the interests of the public are represented.” STEELY GAZE The unprecedented session of the FISA court of review took place in a secure, steel-walled chamber within the Justice Department. Solicitor General Olson argued for the Justice Department. A dozen high-level administration officials sat in on the top-secret session, including Deputy Attorney General Larry Thompson and David Addington, counsel to Vice President Dick Cheney. The appeal stemmed from a May 2002 Foreign Intelligence Surveillance Court order that barred prosecutors and law enforcement agents from directing FISA operations, thus limiting the Justice Department’s ability to use FISA to apprehend suspected terrorists. In its scathing en banc decision, the FISA court expressed concern that if the existing wall between law enforcement and intelligence operations was lowered, aggressive prosecutors might use FISA surveillance to evade the more rigorous requirements of normal criminal proceedings. The ruling, the first ever to be released from the FISA court, set the stage for a high-stakes showdown in the FISA court of review � albeit a showdown with only one party represented. “The whole thing was skewed,” says Steven Aftergood, an intelligence expert with the Federation of American Scientists who read the transcript of the proceedings. “All the factors that led the lower court to tell the Justice Department it could not do what it was proposing to do simply were not present in the appeal.” At the outset of the hearing, Chief Judge Guy informed Olson that the court wished to proceed without rigid time limits. “We’re prepared to spend as much time today as is necessary for you to fully develop the presentation that you want to make to us and for us to ask the questions that we need to ask of you,” Guy stated, according to the transcript. Olson, whose wife, Barbara Olson, was killed Sept. 11 in the hijacked plane flown into the Pentagon, began his opening statement with reference to the anniversary of the terrorist attacks. “Unfortunately and sadly, two days from now the entire nation will pause to reflect on how bad things can be if our government is not prepared with every lawful tool available to protect our country and our people from the immeasurable toll that international terrorism can inflict,” he said. But following Olson’s prepared remarks, the tone of the hearing grew increasingly informal, and by the end of the three-hour session, career attorneys were jumping in to answer technical questions on FISA surveillance. Aside from Olson, David Kris, a FISA expert in the deputy AG’s office, and James Baker, chief of the DOJ Office of Intelligence Policy and Review, responded to the court’s inquiries. Also among those in attendance: Marion “Spike” Bowman, head of the Federal Bureau of Investigation’s National Security Law Unit; John Yoo, a national security expert in the Office of Legal Counsel; and several attorneys from the Criminal Division and the Office of the Solicitor General. One senior Justice Department official describes the Sept. 9 proceeding as “a really full airing of the issues.” “Compared to an average court of appeals, the hearing went into greater detail and explored issues more thoroughly,” the official says. DRAWING THE LINE Of the three judges, D.C. Circuit Senior Judge Silberman questioned the government’s lawyers most vigorously. Silberman’s initial questions explored the divide between law enforcement and intelligence functions that existed within the Justice Department prior to Sept. 11 and the passage of the USA Patriot Act. “At what point did this bifurcation, this false dichotomy that you described, develop?” Silberman asked. Silberman also extensively probed the constitutional implications of blurring the law enforcement-intelligence divide by allowing FISA surveillance to be used in gathering evidence for criminal prosecutions. At first, Olson side-stepped the constitutional question. “I don’t think that issue is before the court at this point,” he said. But Silberman pushed back:”Wait a minute. Stop for a second. Remember this is a strange situation where we don’t have an adversary. If we thought the FISA Court was in error . . . wouldn’t it be necessary for us to consider the question?” The Justice Department ultimately submitted a supplemental brief arguing that FISA searches and surveillance satisfy the requirements under the Fourth Amendment. At times Silberman seemed to defer to the Justice Department. “Do you have a view what we should do with amicus briefs?” he asked at one point. “Our position is we have no objection to the court receiving amicus briefs,” Olson replied. “In fact, we think it’s probably good that the court receive amicus briefs.” The court accepted amicus briefs from a coalition of civil liberties groups led by the ACLU and from the National Association of Criminal Defense Lawyers. But at least one former FISA insider says that the court did not go far enough in soliciting outside input. “Justice works better in an adversarial setting. Ex parte proceedings are inherently less sound than contested proceedings,” says Kenneth Bass III, former head of the Office of Intelligence Policy and Review. “I felt the court should have acted on its own initiative to appoint counsel.” Bass, now counsel at D.C.’s Sterne, Kessler, Goldstein & Fox, adds that the release of the unedited transcript suggests the proceeding ought to have been open to the public. “I think the Justice Department could have analyzed the case and come to the conclusion that it could be a public hearing,” Bass says. “It would have been a good demonstration of faith.” Steptoe & Johnson partner Stewart Baker, former general counsel of the National Security Agency, says the ex parte nature of the FISA process may not always work in the government’s favor. “The judges seemed to have a clear sense that because there was no adversary, they had a special obligation to raise issues that the Justice Department had not discussed,” Baker says. “There is a psychological risk that if the judges feel obligated to make the case for the other side, they may end up convincing themselves.” It is a risk that the Justice Department is attempting to mitigate with an amendment explicitly permitting the FISA court of review to appoint a lawyer to represent the lower court in appeals. Several Justice Department officials declined to comment on the proposal � part of a draft bill entitled the Domestic Security Enhancement Act of 2003 that has not been formally released, but was obtained by the Center for Public Integrity, a D.C.-based watchdog group. “On the whole, the provision makes sense,” Baker says. “It probably would make civil liberties advocates happy and make the government’s job more familiar. When you don’t have an adversary, it is somewhat hard to know which issues to focus on.” The Federation of American Scientists has posted the complete hearing on its Web site. Aftergood, the organization’s intelligence expert, agrees that the amendment can only help. “It may be another 25 years before the court meets again,” Aftergood says. “But I think it is important to uphold the principle of adversarial proceedings.”

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