In the interest of fostering reasoned debate, I'm cross-posting this Daily Kos diary:

A pragmatist's view on FISA

by NCrissieB

I'm a former criminal defense appellate attorney. Most of my cases turned on constitutional issues: search and seizure, interrogation methods, ineffective assistance of counsel.... The issues that dominate the news and the blogosphere today are the issues I worked with in the grit and grist of real defendants, real victims, real crimes, real facts.

(EDIT)

Folks, if you think FISA is the last bastion of the Fourth Amendment, I have bad news for you. If FISA is indeed the last bastion, the Fourth Amendment is already gone. The current bill will not fix the problem, no matter whether telecoms are given the affirmative defense of acting under color of law. The problem exists in the USA PATRIOT Act, not in FISA.

(EDIT)...The act was passed in 1979, in the wake of the Church Hearings and other congressional action that exposed and shut down the FBI's COINTELPRO domestic spying program. From the late 1940s through the early 1970s, the FBI was spying on tens of thousands of American citizens, with little or no oversight. What began as a search for communist inflitrators widened into surveillance on political groups, right and left, that were seen as threats.... After Watergate and the end of Nixon's "imperial presidency," as it became apparent that the FBI had been used as a tool to stifle dissent, Congress put an end to COINTELPRO with a series of statutes that forbade electronic surveillance except by means of a search warrant.

But the intelligence agencies argued - persuasively - that this left a gap in terms of intelligence-gathering on foreign agents operating in the U.S. Having to go to an ordinary judge, many of whom have only minimal security vetting, and lay out specific "sources and methods" information to get an intelligence wiretap warrant, might compromise the security of those "sources and methods...." (EDIT)

And thus was born FISA - the Foreign Intelligence Surveillance Act - and the very first secret court in our nation's history. (EDIT)

And that seemed reasonable, because the original FISA specified that no information gained by means of a FISA warrant could be used in a criminal prosecution. There was a "wall of separation" between the intelligence-gathering and law enforcement sections within the FBI. The former was to investigate foreign espionage cases; the latter was to investigate crimes and gather evidence for prosecution. And because FISA warrants were not reviewable in a trial court, the two were not allowed to mix.

That ended with the USA PATRIOT Act. The consensus, after 9/11, was that the plot might have been stopped had the intelligence and law enforcement agencies been able to share information Foreign-trained and -financed terrorists acting in the United States do seem to pose a special case, as they are not "spies," but rather are plainly "criminals." Thus the USAPA took down that "wall of separation," allowing information gained from FISA warrants (and other classified intelligence methods) to be used by law enforcement agencies and in criminal prosecutions.

And that, my friends, is a death blow to the Fourth Amendment. Consider the following scenario:

Your telephone number pops up several times on the call list of someone the FBI believe is involved with Al Qaeda. The FBI go to the FISC, and ask for a warrant to wiretap your telephone. The wiretap reveals nothing about terrorism - turns out they were wrong number calls - but the FBI do hear you talking about who will bring the weed to your backyard barbeque.

Based on that, the FBI get a warrant to raid your home on the day of the barbeque, and in they swoop, charging you with possession with intent to distribute. That's a felony.

"What gives you the right to storm into my back yard?" you ask. (EDIT)

"We have a FISA warrant," the agent answers.... (EDIT)

At trial, your attorney moves to exclude the search warrant that let them into your backyard, on grounds that you're not a terrorist...(EDIT) and all information gained from it is "fruit of the poisoned tree." But there's a problem:

Not even your trial judge can see the FISA affidavit. It is classified, "sources and methods" information.... (EDIT)

Because you can't see the factual allegations underlying the FISA warrant - not even the trial judge can see that - you cannot challenge the validity of that warrant....(EDIT) Which means they could have said anything they wanted.... (EDIT)

...The FISC is, quite literally, a rubber-stamp court.

This is the "protection" offered by FISA. This is the "constitutional safeguard" so many of you are so up in arms to preserve.... (EDIT

Your constitutional rights exist only so long as you or your lawyer can challenge their violation in court. If FISA is the last bastion of the Fourth Amendment, the Fourth Amendment is already a dead letter.

In terms of constitutional safeguards, the current FISA bill is a non-issue. Yes, it allows telecoms to raise "color of law" immunity as an affirmative, threshhold defense. And yes, that means the telecoms very likely will never be held to account for violations of FISA. But the secrecy of FISA warrants themselves voids the Fourth Amendment, if information gained from those warrants can be used in a criminal trial.

I'm convinced that Barack Obama recognizes this. I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases. I'm sure Barack Obama realizes that this petty knoll is not "the hill to die on."

"The hill to die on" is the USAPA's breaking down the wall of separation between intelligence-gathering and criminal investigation. And that is not even at issue yet. We'll need a Democratic president, and at least 60 Democratic senators, to fight that battle.

(EDIT)