Here’s an absolutely fascinating piece by Dahlia Lithwick on Attorney General John Ashcroft’s efforts to become the J. Edgar Hoover of our time, and the difficulties that even rubber-stamp secret surveillance courts are having with this. The Foreign Intelligence Surveillance Act (FISA) of 1978 allows the executive branch to ignore constitutional protections against warrantless searches for national security reasons. Requests to wiretap someone in such cases are rubber-stamped by a secret court. The whole point of FISA was to spy on the Soviets, it seems, and the secret court was there to ensure (however vestigally) that the act wasn’t abused for criminal prosecutions.

However, the USA Patriot act, passed after September 11th,

amended FISA so that foreign intelligence gathering need no longer be the “primary” purpose of the surveillance, so long as it’s a “significant purpose.” In other words, thanks to the Patriot Act, the primary purpose for a warrantless FISA wiretap or search can now be evidence collection for criminal prosecution or the fact that someone just looks kind of creepy.

Ashcroft then asked FISA to give him permission to do just this—- circumvent 4th Amendment protections in criminal cases that could be spun as being somewhat related to national security. Lithwick writes:

In a hugely unprecedented Memorandum Opinion released last week by the secret court, the judges refused Ashcroft’s request. This same court that has never released an unclassified opinion, that has granted over 10,000 FISA surveillance applications and rejected none over 23 years, this court that operates outside the norms of adversarial proceedings, and which thus ends up OKing virtually every document that flutters across its secret desk, this court refused to allow Ashcroft to tear down the wall between foreign investigation and criminal prosecution. Finding that “the collection of foreign intelligence information is the raison d’etre for the FISA,” the court refused to allow the criminal division to swallow the FISA court whole.

I’m struck by a comment that Lithwick makes in passing. She notes that “[t]he courts have tended to defer to the executive branch in wartime”. The other day I asked whether it mattered that the U.S. has framed its anti-terrorism efforts as a war. I couldn’t think of other countries where that was so. Here’s an example of why that matters. If fighting terrorism is the same as fighting a war, then the fact that “courts have tended to defer to the executive brank in wartime” becomes a reason for judges to lean one way rather than another.

The trouble, obviously, is that actual wars—- I mean, wars with countries—- are much better defined than wars on terrorism. In particular, they’re much more likely to definitively end on some particular date. The War on Terrorism is more like the War on Drugs. It has a much more diffuse goal and much less well-defined targets. Moreover, it can go on indefinitely. The War on Drugs has created its own problems, such as zero-discretion sentencing policies that have contributed to the huge prison population. A similar War on Terrorism might create new ways for the State to monitor and police its citizens, initiating them on the grounds that such things are necessary in times of war. I’m sure John Ashcroft just wants to fight terrorism as effectively as possible—- who doesn’t? But institutionalizing a permanent state of emergency is a worrying way to go about it.