Ashcroft, Gorelick, and the Wall

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I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offense,
Something there is that doesn't love a wall,
That wants it down.

Robert Frost, Mending Wall

What it is
that doesn't love the wall has come to light. No, it isn't the
elves that Frost envisioned — gleefully reeking havoc on the labors
of men. The “it” that hates the wall — driven by a similar hatred
for the accomplishment of man's hand as Frost's elves — is the
leviathan of a government grown mad with power. The work of tearing
down walls is what this beast is about. The 9/11 Commission's
inquiry into the “wall” that formerly separated U.S. intelligence
from law enforcement operations has become a news story du
jour. The “wall” is now being built up as the strawman for
the intelligence failures of 9/11.

The media,
instinctually lemming-like, have fallen for Attorney General John
Ashcroft's sideshow
of directing attention away from what the “wall”
is to who is responsible for the “wall.” With
the help of neocons like National Review's Mark Levin
the Justice Department wants the “wall” portrayed as a creation
of former Clinton Adminsitration Justice Department official,
and current 9/11 Commission member, Jamie Gorelick. All of this
is a typical partisan blame game. However, the plot took a twist
when the White
House announced its displeasure
with the Ashcroft decision
to post correspondence between Gorelick and Mary Jo White, then
United States attorney for the Southern District of New York.

Like the
plot of the movie Pulp
, where viewers enjoy the action surrounding a
mysterious briefcase whose contents are never revealed, the media
is more than happy to ignore what the “wall” was actually “walling
in or walling out.” Rather they have just sat back and enjoyed
the show.

While the
purpose of the “wall” does take a small bit of legal background,
it is not so complicated that it can't be efficiently explained.
So grab your legal trowel and prepare to learn the basics of the

In 1928 American
jurisprudence had to make a choice concerning the government's
ability to spy on its own people. While physical trespass had
always been the benchmark for needing a search warrant, in Olmstead
v. U.S.1 the Supreme Court first confronted
whether wiretapping required a warrant. Chief Justice William
Howard Taft's majority opinion stuck with the common law notion
that a physical trespass was necessary — freeing the government
to wiretap without warrants. Justices Holmes and Brandeis dissented,
Brandeis asserting that under the Constitution there exists “the
right to be let alone” which protects against “every unjustifiable
intrusion by the Government upon the privacy of the individual,
whatever the means employed.”

In Katz
v. U.S., the Court overruled Olmstead, basically relying
on Brandeis' view of privacy.2
However, the Katz decision applied the warrant
requirement only to surveillance of criminal activities. These
type of criminal surveillance warrants came to be called Title
III warrants. In a later case, the court addressed the issue of
national security spying.3 It held
that, while national security surveillance didn't need to conform
to the Title III standards, such government operations were still
limited by Fourth Amendment restrictions. The Court also thought
Congress would be wise to set up a formal system for issuing national
security warrants to control abuses. This recommendation took
shape a few years later in the form of the Foreign Surveillance
Intelligence Act (FISA).

This left
with the U.S. with two parallel warrant systems: Title III for
criminal surveillance, featuring strict Katz requirements
for issuing a warrant, and FISA for nation security surveillance,
which followed a different set of warrant standards but was still
governed by Fourth Amendment restrictions. In essence, given the
special nature of national security, FISA allowed agents to play
a little faster and a little looser with privacy laws. But there
was a trade-off. That trade-off was the “wall.”

The “wall”
was simply the rule that agents surveilling with FISA warrants
could not share what they learned with agents working on criminal
cases. Because FISA warrants were arguably easier to obtain than
Title III warrants, there was a legitimate fear that agents denied
criminal warrants would gain information through the backdoor
from their buddies working under FISA. That's it. That is the
mysterious “wall” — nothing more than a standard check and balance.

What is truly
disturbing is how John Ashcroft has approached the “wall.” It
is perhaps a mirror to his low regard for civil liberties in general.
He now intends to blame the wall procedures for 9/11 when a post-9/11
Judiciary Committee inquiry into FISA
already reported that
top FBI officials were completely ignorant of basic legal standards
for the issuing of warrants.4 FBI
incompetence was much more a cause of 9/11 than legal safeguards
surrounding FISA handcuffing g-men hands.

FISA warrants
are issued by a special Foreign Surveillance Intelligence Court
(FISC). In on May 17, 2002, the FISC gave its first denial to
FISA warrant request.5 (There were
concerns that FISC was a kangaroo court, but in this instance
not even a kangaroo could agree with the over-reaching Ashcroft.)
That court voiced concerns that Ashcroft's internal policies were
not carrying out the function of a real “wall” at all. FISC speculated
what it politely called “sub rosa” criminal investigations could
be carried out under the Attorney General's procedures. Ashcroft
refused to back down.

Having been
the first Attorney General denied a FISA warrant, Ashcroft also
became the first to appeal a denial. The Foreign Surveillance
Intelligence Court of Review (FISCR), packed with brand new members
added by the USA PATRIOT Act, not only found for Ashcroft but
in a litany of bizarre proclamations declared that a “wall” never
existed, that FISA may actually offer greater protection to citizens
than Title III, that FISA protections prevail over Fourth Amendment
requirements, and that FISA warrants may not even technically
be warrants and therefore not bound to the laws concerning warrants.6
If this was not disturbing enough, the FISCR remarked in summation
that if Ashcroft's leveled version of the wall does “not meet
the minimum Fourth Amendment warrant standards,” they, like horseshoes
and hand grenades, “certainly come close.”

In the face
of those tearing down the walls of the law, we should remember
the advice about levelers given by Sir Thomas More in the Robert
Bolt's A Man For All Seasons: Oh, and when the
last law was down and the devil turned on you where would you
hide Roper, all the laws being flat? This country is planted thick
with laws from coast to coast, man's laws not God's, and if you
cut them down — and you're just the man to do it — do you really
think that you could stand upright in the winds that would blow
then? Yes, I'd give the devil the benefit of the law, for my own
safety's sake.”


  1. Olmstead
    v. United States, 277 U.S. 438, 464 (1928).
  2. Katz v. United States, 389 U.S. 347, 361 (1967).

  3. United States v. United States District Court, 407 U.S.
    297, 321 (1972). Also commonly referred to as Keith.

  4. Senate Judiciary Committee, Interim Report on FBI Oversight
    in the 107th Congress: FISA Implementation Failures,
    Feb. 2003

  5. In Re All Matters Submitted to the Foreign Intelligence Surveillance
    Court, 218 F. Supp 2d, 611 (2002).

  6. In re: Sealed Case No. 02-001, 310 F. 3d 717 (2002).

4, 2004

Rossi [send him mail]
is a law student in Washington, D.C.

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