A secret US court where one side always seems to win
Washington — Since 1979 there has existed in the United States a federal court that allows no spectators, keeps almost all its proceedings secret, and hears only the government's side in the cases that come before it. One law professor calls this situation ''a secret body of law in a secret court.''
Through the end of 1981, 949 cases had come before the court - all of them won by the government.
This strange tribunal is the Foreign Intelligence Surveillance Court. Little has been written about it, partly because it is so secret, partly because the court's constitutionality has never been seriously tested until now.
The court decides on warrants authorizing the government to use wiretaps, radio intercepts, and other forms of electronic surveillance to gather information from such sources as foreign embassies, foreign agents, and foreign terrorist groups in the United States. In 1981 alone, the government made 431 applications for warrants or extensions on warrants, a considerable increase over the 319 requests made in 1980.
The court, which meets in a secure ''vault'' on the sixth floor of the Department of Justice building in Washington, D.C., was created by the Foreign Intelligence Surveillance Act of 1978 (FISA), one of the few pieces of legislation to result from the mid-1970s revelations about the intelligence agencies' wiretap abuses.
Considering its involvement in such a controversial area, the FISA court has received remarkably little attention. What comment it has attracted has come mainly from the right. Now, because the government is attempting to use wiretap information as evidence in a New York City trial of alleged gunrunners for the Irish Republican Army (IRA), FISA's constitutionality is undergoing its first serious test--though hardly on the grounds raised by the court's conservative critics.
The argument conservatives make against the court, essentially, is that judges have no business telling the US government how to go about its spying. John Warner, a former general counsel to the Central Intelligence Agency, puts it succinctly: ''Any law that purports to say the President has to secure judicial approval before he can put a wiretap on a Soviet diplomat is unconstitutional.'' Following this reasoning, Rep. Bill Young (R) of Florida has twice introduced a bill to repeal the act, and the Heritage Foundation has twice recommended that the court be abolished.
Former Deputy Attorney General Laurence Silberman attacks FISA from another angle--for setting up an ''underground'' court and lessening the care with which the Justice Department looks at wiretap applications. Before the FISA court was set up, senior Justice Department officials approved the requests. ''Nothing would concentrate the mind so much when signing one of those things,'' Mr. Silberman recalls, ''as knowing you could be called to account before Congress.'' Today, he says, the Justice Department has ''the excuse, 'We don't have to look at it anymore. It goes to the court.' ''
Justice Department officials refuse to speak about matters involving the FISA court, so Mr. Silberman's surmise cannot be checked. But a former Justice official, Kenneth Bass III, who during the Carter years was head of Justice's Office of Intelligence Policy and Review, says Silberman is wrong. Government attorneys go to great lengths to back up their allegations, he says.
Eric Richard, former assistant to then Attorney General Benjamin Civiletti for intelligence matters, says FISA is worthwhile not because of what happens in court but because of the bureaucratic process applications must go through before they reach the court. He says that 1 or 2 percent of the surveillance applications are turned down before they ever get to a judge.
These objections and responses would be irrelevant if the act were found to be unconstitutional. The pending trial in New York of four alleged gunrunners for the IRA, whose telephone conversations were recorded under a warrant granted by the FISA court, has provided the first major test of the act. US District Judge Joseph M. McLaughlin's decision on the legality of using FISA wiretaps in a criminal prosecution has not yet been released. Wiretaps are supposed to be used for gathering intelligence, not evidence.
Whatever the outcome of that case, FISA is likely to be challenged again on other grounds. Most prominent of the conservatives opposed to FISA is former solicitor general Robert Bork, who has been mentioned often as a possibility for appointment to the US Supreme Court. Mr. Bork is now a federal judge eligible to serve on the FISA court, but when asked if he would be willing to be a FISA judge, Bork would say only, ''I don't know. That's the problem--the proceedings are secret.'' Judge Abner Mikva, a colleague of Bork's on the US Court of Appeals for the District of Columbia, voted for the bill when he was a member of Congress. But he also says he does not know if he would sit on the FISA court.
Ironically, both William Funk, a government attorney who wrote the first draft of the act in 1976, and House Intelligence Committee staffer Ira Goldman, one of the act's prime behind-the-scene opponents in 1978, agree that the mood of Congress has changed so much that it would not pass FISA if the bill were proposed today. Former Civiletti aide Richard says it is important to remember just how far pendulums can swing. Not for a decade or two, he says, might the full value of the FISA court become evident. ''You can't judge it on the basis of three years or so,'' he says.
Rutgers law Prof. Helene Schwartz is not so cautious. Although she calls it a secret court, she applauds FISA as a worthwhile attempt by the government to ''conduct its spying within constitutional limits.'' ''In this light,'' she concluded in a Rutgers Law Review article on the court, ''FISA represents this nation at its best.''