Samih Jammal may not be the most upstanding of citizens. He's been charged with running a scam to steal and resell baby formula. Prosecutors allege that he's a flight risk because he had already planned to leave the U.S. to evade the IRS. But is Jammal a threat to national security?
That isn't clear yet; prosecutors have not brought any charges of terrorist involvement against him. But according to news reports, Jammal was wiretapped under the authority of the Foreign Intelligence Surveillance Act.
The Foreign Intelligence Surveillance Act (FISA) was passed in 1978. It sets out rules for the investigation of foreign agents in the U.S. or of U.S. citizens and permanent residents ("U.S. persons") who are believed to be working as agents of foreign powers. Originally, FISA only authorized electronic surveillance (wiretapping), but in 1995, then-President Clinton signed an executive order allowing physical searches as well.
FISA was passed in the wake of Watergate, COINTELPRO and other scandals of the 1970s when domestic law enforcement agencies engaged in covert surveillance of U.S. persons on national security grounds. FISA was intended as a reform, separating intelligence investigations from ordinary criminal investigations. Requests for FISA authority must be signed by the Attorney General, and are approved by the Foreign Intelligence Surveillance Court (FISA Court).
When U.S. persons are involved, the Department of Justice must show that there is probable cause to believe that the suspect is engaged in criminal espionage activities. However, if the suspect is a not a U.S. person, then probable cause to believe there is criminal activity is not required, only probable cause to believe the suspect is the agent of a foreign power. Note that the category of "non U.S. persons" includes students, temporary workers, refugees who have been granted asylum, staff of foreign embassies, and others who are lawfully in the U.S.
The Supreme Court has consistently found (most recently in Zadvydas v. Davis, No. 99-7791 (2001)) that the Constitution applies to all persons in the U.S., whether they are citizens or not. The Fourth Amendment to the Constitution requires probable cause to believe that a suspect is engaged in criminal activity before a search or surveillance may be authorized, so FISA as it applies to non U.S. persons is problematic at best.
The proceedings of the FISA court are sealed; if evidence obtained under FISA is used in a prosecution, the defendant is not able to see any of the records relating to their case, including the basis under which surveillance was authorized. They have no real way to challenge FISA evidence. The Sixth Amendment requires that defendants be able to see the evidence against them, so again FISA is problematic at best.
These issues become particularly important because there is often an overlap between counter-intelligence investigations and criminal investigations. A person who was originally being investigated for criminal activity may come under suspicion of being a foreign agent. A foreign agent may also be engaged in ordinary criminal behavior, not just espionage activity. If the suspect is investigated as a criminal, the normal Constitutional protections apply. However, if the suspect is not a U.S. person and is investigated as a foreign intelligence agent, the "probable cause" requirement can be circumvented. This information can then be used by the criminal investigators, even if they don't introduce it into court. The potential for abuse here should be obvious.
Until October 2001, there was a check in that FISA required that intelligence be the primary purpose of an investigation before surveillance authority would be granted. The Patriot Act amended FISA so that now intelligence need only be a "significant" purpose of the investigation.
The responsibility falls to the Department of Justice to define what "significant" means. In March 2002, the DOJ submitted its proposed rules and guidelines to the FISA court for approval.
This is where it gets interesting. Abuse wasn't just potential, it was real. Starting in about 2000, the FISA court began complaining to the FBI. The court found that in no fewer than 75 cases, the FBI had presented misleading or false information in its applications for surveillance authority. Most of these were from the unit investigating Hamas and the court found the lead investigator's misconduct so egregious that it barred him from coming before them (aside: at around the same time, the FBI itself discovered even more bungling).
The FBI asserts that this rebuke prevented them from seeking surveillance authorization on Zacharias Moussaoui in 2001 (this seems odd to me since they continued to submit applications in many other cases; were they afraid that the evidence was weak here? was there somebody involved in the investigation of Moussaoui who had already been rebuked for misconduct?).
All of this wrangling went on behind closed doors until the FISA court received the new guidelines from the DOJ in March 2002. In May 2002, the court issued a ruling on the new guidelines. In their ruling, they rejected the DOJ's proposed new rules regarding information sharing between intelligence and criminal investigations. The reason? Those 75 cases. If the FBI would embellish or falsify evidence of foreign intelligence activity in criminal cases to get a FISA warrant where they couldn't get a regular criminal warrant, how could they be trusted with even more power to use FISA in mixed intelligence-criminal investigations? The court also alleged that the DOJ guidelines went beyond the powers authorized by the Patriot Act and the intent of Congress. For instance, the guidelines say that the primary purpose of the investigations can be criminal, as long as intelligence is a significant minor factor (this is a total inversion of the pre-Patriot Act rule).
The FISA opinion was made public in August 2002 and caused quite a stir. The DOJ appealed. The appeal was heard by the FISA Court of Review. Unlike most appellate courts, the FISA Court of Review hears arguments and evidence only from the appellant: the government (if only the government gets a hearing, and the FISA court has never turned down an application, it's not surprising that this is the first time the Court of Review has heard a case). It is perhaps also not surprising that the Court of Review found in favor of the DOJ and overturned the FISA court's ruling.
So where does this leave Samih Jammal? He, and we, won't be able to find out why he is believed to be a foreign agent or what espionage activities he is believed to be engaged in, nor can he challenge these designations. The public facts of the case, as laid out in this profile, mention that he sent money to people in Middle Eastern countries and that he recruited Middle Eastern men to be a part of his alleged baby formula ring, giving them a job so that they could obtain immigration papers. In today's climate, that may have been enough to seal his fate.
Further resources:
- Center for National Security Studies: Foreign Intelligence Surveillance Act
- Courts.net: The FISC
- Electronic Frontier Foundation FAQ: The Foreign Intelligence Surveillance Act
- EPIC Archive: Foreign Intelligence Surveillance Act
- Federation of American Scientists: Foreign Intelligence Surveillance Act
- Inside America's Secret Court