April 06, 2006,
A surprising amount of fuss is being made over the government's reliance on the suddenly famous 1978 Foreign Intelligence Surveillance Act (FISA) in a recent case involving the fencing of baby formula. The case resulted in the conviction last year of an Arizona man named Samih Jammal, who was accused of leading a theft ring which stole baby formula and later sold it in convenience stores. Earlier this week, the Wall Street Journal reported (reg. req.) on the case, and now the story has been picked up by the Drudge Report, among other outlets.
The driving concern is obviously over the use of FISA a national security investigative tool in a case where terrorism or espionage charges ultimately did not get filed. Such concern is overwrought for at least five reasons.
First, it bears emphasis that FISA is a tool used in investigations. By nature, if you are investigating something, it is because you haven't yet figured out what is going on. Many, many investigations result in no charges being filed. So the fact that a particular investigative technique designed for terrorism and espionage does not yield such charges should come as no surprise.
Second, it is a long settled doctrine of law that as long as police are legitimately conducting a search, they may seize any evidence that is incriminating, even if it is not necessarily what they anticipated finding in the first place. Let's say the police get a search warrant based on probable cause that a man has robbed a bank and has the proceeds in his house. When they enter the house, though, they find a bag of cocaine on the table. The police are not required to ignore the cocaine simply because it's not the crime they got the warrant to investigate. Even if they never accuse the man of bank robbery, he may properly be charged and convicted for cocaine trafficking.
Third, international terrorists commonly commit many ordinary violations of law everything from immigration fraud, to financial fraud, to identity theft, to money laundering, to drug dealing, to gathering explosives, etc. in the course of plotting their mayhem. It is to be expected that if you investigate someone who truly is a terrorist (or is associated with terrorists) you will find all kinds of crime that, ostensibly, has nothing to do with terrorism. (I note here that I have no idea what the evidence against Mr. Jammal is or what the basis for getting FISA wiretap authority was. The latter is virtually always classified.)
Fourth, the government cannot get a FISA order without (a) showing probable cause to a judge's satisfaction that the target is an agent of a foreign power (generally, either a terrorist organization or a foreign country that is spying on us); and (b) going through several layers of internal government review from the FBI field agents investigating the case, to the FBI lawyers in the field office, to the lawyers and chain-of-command in FBI headquarters, to the Justice Department unit that deals with the FISA court, and, eventually, the rest of Justice's chain-of-command. These things are vetted very carefully, and often too s-l-o-w-l-y for safety's sake. If a request for a FISA order is granted after that kind of scrutiny, we can be confident that the subject is someone very much worth investigating.
By contrast, an agent can get a regular criminal warrant just by going to a prosecutor for physical search, or, if the agent wants a tap, by going through a less exacting internal Justice Department process than FISA calls for. If you are really worried about rogue agents misusing their authority (something that happens only very rarely), it would be far easier for a rogue to manufacture the grounds needed for a regular criminal warrant than to invent a national security rationale for using FISA. The chances of getting caught are much greater with the latter.
Fifth, the worst part of using the criminal justice system to investigate terrorists is that if the government ends up charging them with terrorist crimes, our generous discovery laws require the prosecution to provide them with all sorts of information about the crime charged i.e., our intelligence, which often necessarily conveys to the accused terrorists our methods of and sources for obtaining that intelligence. Once the government makes those disclosures, these intelligence pipelines are forever closed. As anyone who has been following the post-9/11 intelligence reform debate knows, our sources of information are sparse especially in the parts of the world where the threat to us is the greatest. We can't afford to be shutting down intelligence pipelines if we can reasonably avoid doing so.
Consequently, if, in the course of investigating a terrorist, the government manages to uncover evidence of other crimes, it is a major windfall for the public. We get the opportunity to take a dangerous person off the street without having to provide such a person, and his associates, with what the government knows about their possible terrorist activities. Even better from an intelligence standpoint, the ability to charge such ordinary crimes is frequently the leverage the government needs to persuade insiders to cooperate thus generating precious historical and real-time information about terrorist organizations (e.g., who the bad guys are, and what they're currently up to).
In 2002, the Foreign Intelligence Court of Review the FISA appellate court rendered the only decision in its history. In that case, it pointedly rejected the "false dichotomy" between intelligence information and criminal evidence which the FISA court and the Justice Department had been erroneously assuming for nearly a quarter-century. The Court of Review could not have been more correct: the two things can't sensibly be separated, and we shouldn't try to part them. It makes us safer to be adaptable to be able to collect criminal evidence by FISA and intelligence information by the ordinary criminal process. And while you can never prevent all possibilities of abuse, there are plenty of safeguards in place to make certain that these authorities are used properly.
Finally, it is worth noting that the baby-formula story arises because the defendant, Jammal, pled guilty. This is not a case of an innocent man being railroaded. The process worked as it is supposed to work. That is something to be happy about not to agonize over.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.