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An espionage case shows that FISA searches may play a role in how the government keeps its eye on journalists.…

An espionage case shows that FISA searches may play a role in how the government keeps its eye on journalists.

From the Fall 2005 issue of The News Media & The Law, page 28.

By Susan Burgess

The case of two Washington, D.C., lobbyists who are charged with conspiring to release national security information could have serious implications for journalists.

Media advocates, including The Reporters Committee for Freedom of the Press, have argued that the indictments jeopardize journalism because the activities the two were engaged in are similar to the acts reporters perform every day in Washington. But another effect springs from how the case was investigated &#151 Foreign Intelligence Surveillance Act provisions broadened by the Patriot Act may have made it easier for investigators to snoop on journalists.

To establish the conspiracy charge against the two lobbyists, the Aug. 4 indictment of Keith Weissman and Steve Rosen formerly of the American Israel Public Affairs Committee details particular dates on which they allegedly communicated with journalists about foreign intelligence they received from a Pentagon analyst.

It remains unclear how much surveillance of journalists the government conducted to obtain the indictments. The prosecution has yet to identify the journalists to whom the lobbyists are charged with communicating classified foreign intelligence, although The Washington Post has reported that the men relayed information to Post reporter Glenn Kessler.

In a preliminary hearing in September concerning evidence in the case, the prosecution explained that it has refused to turn over all wiretap tapes of the lobbyists’ conversations with third parties because some of the wiretaps were ordered under the FISA, which governs U.S. intelligence gathering efforts. The actions taken under the law, from applications for surveillance to orders granting surveillance, are shrouded in secrecy.

Prosecutors have agreed to give the defense only about nine hours of recordings, and it is unclear how much additional recording time they are withholding, and how much of those recordings involve journalists. The court is expected to rule soon on whether the government may refuse to turn over the tapes.

The indictments in U.S. v. Franklin demonstrate that reporters, by merely contacting or being contacted by a target of foreign surveillance, might be vulnerable to having a pen register or trap-and-trace device placed on the their phone and e-mail accounts because a government agent has certified that the information obtained would be relevant to an ongoing foreign intelligence investigation. Pen registers and trap-and-trace devices record the numbers dialed on a particular phone and the phone numbers of all incoming phone calls, respectively. Reporters, however, have no way of knowing whether their sources are under such investigations.

The Reporters Committee has asked U.S. District Judge T.S. Ellis III to allow it to file a friend-of-the-court brief in Franklin, saying that a broad application of the espionage statute to encompass private parties’ conversations with journalists would have negative consequences for journalism. “While the government certainly has a legitimate interest in keeping national security information out of the wrong hands, an overly aggressive approach that interferes with the flow of information to the public and its ability to hold its government accountable can undermine the democratic principles we all seek to defend,” the Reporters Committee argued in its motion filed Oct. 12.

A ruling in the case in the U.S. District Court in Alexandria, Va., may be the first to demonstrate the impact of the USA Patriot Act on newsgathering. The USA Patriot Act, signed into law in 2001, made several changes to FISA that made it easier for the government to gather foreign intelligence information. Such Patriot Act provisions that have granted greater power to the government under FISA will expire Dec. 31, although Congress is considering renewing them.

Among other things, the Patriot Act lowered the standard for acquiring an order to conduct FISA surveillance or physical searches, and broadened the scope of such surveillance. Instead of having to show that “the purpose” of the surveillance or physical search is to gather foreign intelligence to get a court order, the government need only show that it is a “significant purpose” of the order.

The Patriot Act also expanded the government’s access to business records so that now foreign intelligence surveillance may investigate anything tangible, such as books, records, and tapes, under FISA. Before, foreign intelligence investigations could only access business records held by common carriers, public facilities, physical storage facilities and vehicle rental facilities.

By lowering the standard of a FISA search and broadening the scope of such surveillance, the Patriot Act made it easier to get a FISA order. In 2004, more than twice as many FISA orders were requested and granted than in 1999, according to a review of FISA annual reports by the Electronic Privacy Information Center. It also made it much more likely that journalists’ communications with sources can be intercepted. This is troublesome because the rights of individuals subject to FISA searches are much more limited. It is unclear whether Weissman and Rosen will have the right to adequately contest the evidence that the government will use against them.

The court’s ruling could require the government to reveal information about its surveillance of journalists under FISA. If the court orders the transcripts to be publicized, it may force the government to reveal the amount of information it has gathered from journalists under a FISA order and the circumstances under which it was collected.

Learning about information gathered under a FISA court order is rare because the proceedings to gather foreign intelligence are cloaked. The only information the FISA Court, comprised of 11 federal district court judges that operate in complete secrecy, must disclose is the number of applications received and granted annually. Those numbers are reported to Congress annually.

“The problem with FISA is that the whole thing happens in secret and doesn’t lead to criminal prosecutions where one can challenge whether the entire search was unconstitutional,” said Brittany Benowitz, Equal Justice Works Fellow at the Center for National Security Studies. “The result of that is that it’s really hard to have oversight of these powers.”

Benowitz maintains that when many of the Patriot Act provisions that granted the government greater power sunset later this year, the Senate should raise the standard for granting FISA orders. Under the Act’s lower standard and broader reach, she said, “it’s extremely sweeping what they can get under these wiretaps. While FISA orders are always subject to court review, this review is meaningless if the standard is so low it provides no protection, as is currently the situation. The senate re-authorization would raise the bar for getting an order.”

Both the House and Senate have drafted amendments to the Patriot Act provision that allows sweeping access to any tangible thing. The Senate has taken a big step toward narrowing it to incorporate greater search-and-seizure protections guaranteed under the Fourth Amendment, but the House version has not.

Steven Aftergood of the Federation of American Scientists hopes that the re-authorization grants greater scrutiny of the FISA court. “I would like to have more confidence than I do in the adequacy of congressional oversight,” he said. “It may be that this is such a delicate area that the oversight must take place behind closed doors, but it’s not even clear that that is happening, and I think as well that the government could disclose much more routine aggregated information about its use of the FISA.”

Increased scrutiny seems warranted, he said, since the number of FISA applications submitted and approved since 1999 has more than doubled. According to data compiled by the Federation of American Scientists from FISA annual reports, 886 FISA applications were presented in 1999, while 1,758 were presented in 2004. No applications were rejected in either year. Indeed, the Foreign Intelligence Surveillance Court has rejected only four applications since the court was created in 1978. Because the FISA applications and orders are confidential, it is unclear how many targets or third parties of FISA surveillance have been journalists.