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Washington Bends the Rules

August 27, 2002

WASHINGTON: Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested." So begins "The Trial," Franz Kafka's story of an ordinary man caught in a legal web where the more he struggles to find out what he did wrong, the more trapped he becomes. "After all," says Kafka's narrator, "K. lived in a state governed by law, there was universal peace, all statutes were in force."

With increasing speed, the Justice Department of Attorney General John Ashcroft is starting to resemble the "always vengeful bureaucracy" that crushed Josef K. Recently, in two federal cases, the Justice Department argued that it is within the president's inherent power to indefinitely detain, without any charges, any person, including any United States citizen, whom the president (through the Justice Department) designates an "enemy combatant." Further, the person can be locked away, held incommunicado and denied counsel. Finally, Mr. Ashcroft argues that such a decision is not subject to review by federal or state courts. This situation is beyond even Kafka, who in his parable of punishment and paranoia at least supplied Josef K. with an attorney.

Despite the draconian dictates issuing almost daily from the Justice Department, it is not the watchdogs in Congress but the judiciary itself that is blowing the whistle. The most recent example came from the super-secret Foreign Intelligence Surveillance Court in the form of an extremely unusual open opinion - only the second in its quarter-century history. The judges of the court unanimously criticized federal agents for misleading the court in applications for secret eavesdropping warrants on 75 occasions during the Clinton administration (as of September 2000) and an unspecified additional number between September 2000 and March 2001. One request was even signed by F.B.I. director Louis J. Freeh.

The F.I.S.C. presiding judge from that period, Royce Lamberth, said in April of this year that Mr. Ashcroft's Justice Department had cleared up some problems associated with approval of wiretaps - the court's main activity. However, Mr. Ashcroft's steady push to increase his department's surveillance powers and subject citizens to investigative methods normally restricted to the tracking of spies has forced the court to publicize its worries. The F.I.S.C. opinion was issued on May 17. It found that the Justice Department wanted to use the U.S.A. Patriot Act improperly. The court's decision is now being appealed by Mr. Ashcroft to the F.I.S.C. appeals court. The May 17 opinion was sent by the F.I.S.C. court to the Senate Judiciary Committee, which released it to the public last Thursday. The committee, like F.I.S.C. itself, has grown concerned by the Justice Department's ever more extensive power.

It is time for Congress to at last hold public hearings on the issue. The problems have become so bad that the court barred one F.B.I. agent - the supervisor in charge of surveillance involving Hamas, no less - from appearing before them again.

What triggered the court's extraordinary public rebuke was Mr. Ashcroft's proposal last March to greatly increase the amount of intelligence information shared between the spies and the cops. Many fear that erasing the line between the two groups will open up, in particular, a Pandora's box of domestic electronic espionage by the F.B.I. and the National Security Agency.

The N.S.A., by statute, is largely restricted to eavesdropping overseas. Its capabilities are so great that a single listening post normally pulls in over two million pieces of communications an hour - phone calls, e-mail messages, faxes, data transfers.

The laws were put in place in reaction to Nixon-era surveillance and were meant to keep foreign-intelligence investigators from tapping everyone's phones, regardless of probable cause and other constitutional niceties, and then pass on the results to prosecutors. The surveillance court was created in 1978 under the Foreign Intelligence Surveillance Act. It was the product of a compromise between those who wanted to see virtually no legal restrictions on the secret domestic national-security eavesdropping of the N.S.A. and F.B.I., and those who felt the agencies should apply for warrants just as is done in drug or bank robbery cases. After years of debate, it was decided to force the two agencies go to court and obtain a warrant but to create a new, and very secret, court system to issue them. Today, like a modern Star Chamber, the F.I.S.A. court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The 11 judges (increased from seven by the U.S.A. Patriot Act) hear only the government's side.

A key problem is that, in its nearly 25-year history, the secret court has approved over 10,000 warrants - with the numbers growing every year - and never turned down a single request. Before the court was created, the director of central intelligence chaired a panel that reviewed national-security eavesdropping requests - and very frequently turned them down. Today, if the court should ever turn down a request the government can appeal to the F.I.S.A. appeals court, which has the distinction of being the only court in the United States that has never heard a case. (The government's appeal of the F.I.S.C. opinion of May 17 will be the first case heard by the F.I.S.A. appeals court.) While serving on this bench, the judges have become the Maytag repairmen of the federal judiciary. And should that court reject the request, the government has the right to appeal immediately to a closed session of the United States Supreme Court.

Given the secret power of the F.I.S.A. court, the fact that federal agents regularly misled it and Attorney General Ashcroft's worrisome proposals to expand the number and range of requests, Congress must begin holding hearings, some of them public, on how to fix the system.

In the end, Kafka's Josef K. becomes so fatigued in his fight to find out why he was arrested that he just loses his will to resist. The release of the May 17 opinion (by the court's new presiding judge) to the Senate Judiciary Committee, and the committee's release of it to the public, can reasonably be seen as cries for help. The Justice Department has to understand that democratic oversight of law enforcement is not taken lightly by Congress or the American people, even in these threatening times.

James Bamford is the author, most recently, of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency.''