Congress Quietly Debates Merits Of Warrantless `Spy' Searches
Post-cold-war `black-bag' break-ins remain highly controversial
CITING national security concerns, federal agents have continued a cold war policy of secretly searching the homes and offices of American citizens suspected of aiding foreign powers.
These ``black-bag jobs,'' conducted without court orders, have gotten the go-ahead from President Clinton and Attorney General Janet Reno, just as they did from two previous presidents.
Key members of Congress, who worry that White House policy violates the Constitution, are now engaged in a quiet debate over ways to safeguard civil liberties without undercutting the government's counter-intelligence agencies.
A Senate-passed intelligence bill (S. 2056) would require that the White House get permission from a special federal court before conducting break-ins at the homes of United States citizens or at foreign embassies in Washington, D.C.
Unlike their predecessors, Mr. Clinton and Ms. Reno have encouraged Congress to clear up legal uncertainties over black-bag jobs.
The issue recently gained new urgency with the case of CIA official Aldrich Ames, a Soviet spy. Mr. Ames' home in Arlington, Virginia, was the target of two secret federal searches in June and October, 1993.
However, if the case had come to trial, Ames's attorney threatened to use the government's warrantless break-ins to attack the case against his client.
The Fourth Amendment assures ``the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....'' It guarantees that warrants will not be issued unless there is ``probable cause'' and that the warrant must describe the ``persons or things to be seized.''
None of these safeguards were carried out in the Ames case. According to a source on the House Permanent Select Committee on Intelligence, Reno was deeply concerned about a potential constitutional challenge by Ames.
She was reported to have said, essentially: That's it. We're not going to do any more of this.
The Senate bill, however, is itself a subject of controversy on Capitol Hill. The House, where some members say S. 2056 contains inadequate safeguards, has so far refused to go along. The issue will be the subject of a House-Senate conference in late September.
The Senate bill would require that government get approval from the little-known Foreign Intelligence Surveillance Court prior to a secret physical search of homes, offices, and embassies.
The FISA court, named after the Foreign Intelligence Surveillance Act of 1978, consists of seven federal district judges appointed by the chief justice of the US. The judges serve for a maximum of seven years. They meet in a secure courtroom at the Justice Department where they rule on secret government requests for electronic wiretaps involving national security.
This year's bill would extend the FISA court's authority to include physical searches involving possible spies.
Critics, such as Rep. Don Edwards (D) of California, charge that expanding the FISA court's reach would be a ``serious mistake.'' No matter who grants approval, ``there is no constitutional, legislative, or judicial basis for secret searches,'' Mr. Edwards says.
The congressman sees two major problems with the Senate bill.
First, the FISA court would not require the government to show ``probable cause'' that a crime has been committed, or is about to be committed, as the constitution demands before getting a search warrant.
Under FISA, a warrant can be granted merely on the basis of a person's possible status - for example, if he might be a foreign agent - rather than suspicion that the person has actually done something unlawful.
Edwards notes that a search warrant could be issued because someone represents a foreign political organization, such as the African National Congress, the Nicaraguan contras, or Palestinian groups.
Second, FISA-approved black-bag jobs would exclude the normal constitutional protections of knock, notice, and inventory of anything seized. As Edwards notes in a letter to Rep. Dan Glickman (D) of Kansas, chairman of the House intelligence committee:
``The most effective means of ensuring that constutitional standards are adhered to comes from the fact that the person who is the subject of a search knows that it has been conducted and can seek post-search redress.... The nature of the [secret] black-bag search is ... totally unprecedented in our system....''
While the Justice Department supports limited reform efforts, it also claims that current black-bag jobs are entirely legal, despite the lack of a warrant.
Jamie Gorelick, deputy attorney general, insisted in a written statement to the House intelligence committee that ``the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes....''
Ms. Gorelick says that in espionage cases, if the Justice Department tried to meet all the strict rules imposed on police in criminal matters, it would ``unduly frustrate'' America's counter-intelligence efforts.
She says: ``Physical searches to gather foreign intelligence depend on secrecy. If the existence of these searches were known to the foreign power targets, they would alter their activities to render the information useless.''