Ashcroft, Gorelick, and the Wall

Before 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 legerdemain 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 Fiction, 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 “wall.”

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 Senate 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.”

Notes

  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).

May 4, 2004

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

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