Excerpts from a June 30, 2003, Frontline interview with Alice Fisher:
Q: (FISA) was passed for a reason. I mean, it was passed to provide a procedure, as I understand it, for us to do eavesdropping, wiretapping, sometimes maybe even break-ins into places, and to have some kind of legal proceeding for doing that, to gather intelligence.
A: Correct.
Q: And you weren't supposed to share that with the criminal side.
A: There were several restrictions placed on sharing that information with the criminal side. You could only share that information if there was evidence of a crime. (With) intelligence, as you know, there may not always be evidence of a particular crime. So a lot of that information was not thrown over to the other side of the wall to the people that really could need it.
Q: And the reason for that was that there's a lower threshold for getting an intelligence warrant.
A: I would not call it a lower threshold. It's a different threshold. And it's a different procedure with the court. There is a particular court that deals with these kinds of warrants, the Foreign Intelligence Surveillance Court. So when you need to get a FISA warrant, a surveillance, whether it's a search or a wiretap, you go to a FISA Court. And there is a showing that you have to make to get a FISA warrant that is different than the showing you would have to make in a criminal court to get a wiretap, say, on a drug dealer.
Q: Well, I mean, we know that the public criminal court wiretap affidavit eventually, if there are no charges, that gets out into open court. It's public. Right?
A: Right.
Right. But a FISA Court, the affidavit and the sort of the background reasons for getting it, that's not public.
That's correct.
. . .
Q: The reason I'm pushing on this is that your critics say you're using the FISA law -- that is, the Foreign Intelligence Surveillance Act and the secret court and affidavits and warrants that you get from that court -- because they're never discoverable, they're never challenged in court. They're never subject to cross examination. You're using enemy combatant in a secret proceeding and which is not discoverable. You can't talk about it, you say. Do you see what the concern is? That the government is operating in secrecy about, let's say, the future of American citizens.
A; That is absolutely not true. The FISA warrants that the government obtains for FISA surveillance are authorized by a court.
They're authorized by the FISA Court for all of those cases. And therefore, they're not done in secret. It's absolutely not true. The FISA surveillance that we get are authorized by a court of District Court judges that sit on the FISA Court. And they are the ones that authorize us to go forward with wiretaps or FISA surveillance.
As far as making a decision about an enemy combatant, those deliberations, while the counsel and the interplay between government entities about those decisions, may not be done with full disclosure, the designations themselves and the basis for the designations have been fully disclosed to the public. In fact, we have filed several court papers with regard to these designations, both for Mr. Hamdi and Mr. Padilla.
Q: But it takes them out of the public arena. There is no longer a public trial going on. There's no lawyer representing them. There's no one to be their advocate.
A: Well, enemy combatants are not entitled to have attorneys. And you would not suggest, for example, that all the individuals that we've picked up in Afghanistan for fighting against our soldiers all have attorneys. That would be thousands. That's never been done. That's never been done in any war.
Q: But they're not prisoners of war either, are they?
A: I'm not going to comment on the decision to designate Al Qaeda or the Taliban as not being prisoners of war.
Q: Okay. Let, let me go back for a second. When you say that there's a judge who reviews a FISA warrant, it's not done arbitrarily, is what you're saying?
A: Absolutely not.
Q: Has there ever been a FISA warrant that's been denied?
A: I'm not aware of any.
Q: So you can see the skepticism of attorneys out there who are saying, we can't see the FISA warrant. We can't review the FISA warrant. There's no adversarial proceeding. You've never been denied a FISA warrant.
A: Well, I said I'm not aware of one, which is different. I mean, there may be one. I'm just not aware of it.
Q: Well, we couldn't find one either. And so therefore, there's concern that that is used to develop information and then that information can more easily be used, as you described it, in a criminal proceeding.
A: The developing of information under FISA warrants is so that we can better protect America, that we can gather intelligence for those who are agents of a foreign government or agents of a foreign terrorist organization, or who are spying on us, in espionage cases. And we need to gather that intelligence to both protect America and to the extent that it evidences criminal conduct. Then that information can and should be shared with prosecutors who can then go forward, if appropriate, with our criminal laws and incapacitate the individuals in that way.
Q: I don't think people are concerned with the use of this in a way to stop a terrorist attack. Definitely not. What they're worried about is it can be abused, that it's easier now to do it than ever before -- that is, share this information. The wall is down, as you put it.
Why should we trust you, is the question.
A: Well, you need to separate two things again. In obtaining the warrant there is a court of review that allows us to obtain the warrants. So there is another branch of the government, the judicial branch, that is a check on our obtaining of the warrants. And on the sharing of information, it is absolutely imperative that in this day and age, when we know there are terrorist organizations and we know there are people in the U.S. that want to cause harm to Americans, that we share the information with the people that need that information and need to use it.
Q: I'm asking you, though, you know, we have a Bill of Rights and it's there because traditionally we don't trust the government, a central government, in this country.
Why should we trust you not to abuse the power you've been given?
A: Well, again, there are checks and balances in place on the power. But the implication of your question that somehow the Department of Justice would impinge on freedom, that is the exact thing that we're trying to protect. We are trying to protect Americans against those terrorist organizations that will strike right at our freedom. . . .
Q: The Foreign Intelligence Surveillance Act and the special warrants that are provided to the court go through a separate agency here at main Justice, right?
A: They go through not a separate agency but they go through the Office of Intelligence and Policy Review, which is outside of the Criminal Division at this point.
Q: But you plan to move that into the Criminal Division, it's my understanding.
A: No such plans have been announced. ...
Q: I guess (where) I'm going is, are you, in a sense, creating a domestic counterintelligence operation in de facto inside the Department of Justice without declaring a separate operation and keeping the hammer of the criminal side when you need it?
A: Well, I hope so. I hope that we're sharing intelligence -- and it's not just domestic. It's clearly international terrorism that we're focused on. And I hope that we're sharing it and using all the tools in our toolbox to incapacitate terrorism and protect America. And whether that is to continue intelligence investigations, continue surveillance or whether that's to bring criminal charges where appropriate, I believe that we are using all of our tools that are necessary.
http://www.pbs.org/wgbh/pages/frontline/shows/sleeper/interviews/fisher.html
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
