The Foreign Intelligence Surveillance Act (FISA) can be used to monitor U.S. persons who engage in unlawful collection of classified or controlled information even if they are not acting on behalf of a foreign power.
That is the upshot of an August 14 ruling (pdf) disclosed last week in the case of two former officials of the American Israel Public Affairs Committee (AIPAC).
The defendants had argued that they were improperly subjected to FISA surveillance since FISA requires that the target be “an agent of a foreign power” and, they insist, they were never acting on behalf of a foreign power.
Judge T.S. Ellis, III, rejected that defense argument.
But in doing so, he redefined and significantly expanded the meaning of “agent of a foreign power” to include non-foreign agents who may be involved in unlawful information gathering.
FISA “plainly allows a FISC [Foreign Intelligence Surveillance Court] judge to issue an order allowing the surveillance or physical search if there is probable cause to believe that the target… may … be involved in unlawful clandestine intelligence activities, or in knowingly aiding and abetting such activities,” Judge Ellis wrote.
And what are “unlawful clandestine intelligence activities”?
“Although the phrase ‘clandestine intelligence gathering activities’ is not defined in FISA,” he noted, “such ‘activities’ would include, for example, ‘collection or transmission of information or material that is not generally available to the public’.”
Some such collection and transmission of information is protected by the First Amendment, the Court acknowledged, and cannot by itself serve as the basis for FISA surveillance.
But earlier this month, Judge Ellis ruled that the collection and transmission of national defense information can be a violation of the Espionage Act, even if it is conducted by private citizens who are not spies, if they act knowingly and willfully with an awareness that the information is restricted and that it could be used to harm the United States or to aid a foreign nation.
Building on that prior ruling, the Court has now redefined the meaning of “agent of a foreign power” so as to justify the FISA surveillance in the AIPAC case.
“The FISC [the Foreign Intelligence Surveillance Court that originally authorized surveillance of the AIPAC defendants] had ample probable cause to believe that the targets were agents of a foreign power quite apart from their First Amendment lobbying activities.”
But under the Court’s new definition, “agents of a foreign power” need not literally be “agents of a foreign power.” Rather, the term now includes other persons who engage in unlawful information gathering.
“While the defendants’ lobbying activities are generally protected by the First Amendment, willful violations of sec. 793 [the provision of the Espionage Act that prohibits collection and disclosure of national defense information] are not, and … the FISC had probable cause to believe that such violations had occurred in this case,” Judge Ellis explained.
To reiterate: the Court did not find that there was any reason to believe the defendants were acting on behalf of a foreign power. (The prosecution has conceded that they were not.)
Instead, Judge Ellis expanded the scope of the term “agent of a foreign power” to include someone who clandestinely gathers restricted information in a probable violation of the Espionage Act, even if there is no reason to suppose he is a spy or a terrorist.
By the Court’s logic, it does not take an big imaginative leap to envision the application of FISA surveillance to members of the press or others who deliberately solicit classified or controlled information or who report on classified programs in willful defiance of official directives to the contrary.
A former FBI official with extensive experience in FISA policy and practice expressed doubt that the FISA could now be easily invoked against the press or the public for ordinary reporting or research activities since, he said, these do not normally involve the requisite intent to violate the law.
“There is quite a bit on the periphery that is not included in this Order,” the official told Secrecy News.
“The judge referred to the information ‘not generally available to the public’ in the context of clandestine activities that are violations of, for example, 18 USC 793 and 794 [the Espionage Act]. These are statutes that require an intent to harm the United States or benefit another power. Judge Ellis may have been parsimonious in his words, but he hasn’t advocated the position that worries you,” he said.
Even so, the FBI FISA expert agreed that the new court order does “make it possible to be ‘an agent of a foreign power’ for FISA surveillance purposes without having any actual connection with a foreign power whatsoever.”
The new order also called for a leak investigation to determine the sources of a August 2004 CBS News story about the AIPAC case.
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