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Inside America's secret court

By Henry Schuster
CNN

Editor's note: Henry Schuster, a senior producer in CNN's Investigative Unit and author of "Hunting Eric Rudolph," has been covering terrorism for more than a decade. Each week in "Tracking Terror," he reports on people and organizations driving international and domestic terrorism, and efforts to combat them.

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Judge Royce Lamberth headed the FISA court from 1995 to 2002.

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WASHINGTON (CNN) -- America's secret court sits in a nondescript corridor on an upper floor of the Justice Department building, closed off from public view and now, some believe, regarded as increasingly irrelevant by the Bush administration.

Its formal name is the Foreign Intelligence Surveillance Court, though in recent hearings and reports about the dispute over warrantless wiretapping, it is usually referred to as the FISA (Foreign Intelligence Surveillance Act) court.

The FISA court began issuing warrants in 1979 in the wake of a series of intelligence-related scandals earlier that decade and the one before, including the FBI's spying on the Rev. Martin Luther King Jr.

Congress created the court with the idea that it would hear and rule in secret on requests for wiretaps, primarily those involving foreign intelligence agencies.

Because the U.S. was still deep in the Cold War, foreign spying, not terrorism, was the main concern.

Even though the FISA court did what other courts do -- approved requests for wiretaps in conditions of secrecy -- the aura of national security and the lack of information about the court and the targets of those warrants gave it a certain mystique, to the point where it became known as America's secret court.

The fact that the actual courtroom was protected by an electronic cone of silence to prevent eavesdropping only seemed to add to the flavor.

A rare inside look

Judges appointed by the chief justice of the United States would hear proposals for warrants from the FBI and other agencies. One of them was Judge Royce Lamberth, a straight-talking Texan selected to preside over the FISA court from 1995 to 2002.

"The FISA judges have got to be comfortable that this is something we've got to do for our national security. There's no political shenanigans going on here," he told me.

I had the rare chance to hear about FISA from Lamberth during a recent conference in Washington. He said he is the only FISA judge, past or present, comfortable enough to talk about the court.

Lamberth explained the procedures for getting a FISA warrant (which since 1995 also allows for surreptitious entry for searches and seizures, known as "sneak and peek").

"We're presented with affidavits like we would do any other search warrant or wiretap warrant in a regular criminal case," he said. "We have the agent there who is knowledgeable of the case at the time we are authorizing the activity, and I think the process has worked well.

"It is like any other criminal case: The defense is not represented at this time because it's an investigation at that time."

Terrorism began to replace spying as the court's main workload during Lamberth's tenure.

"I was chief judge of the court at the time of 9/11," he said. "I had done many [Osama] bin Laden wiretaps before 9/11. We knew that bin Laden was a problem long before 9/11."

Lamberth spoke about the night after two U.S. embassies in Africa were bombed by al Qaeda in 1998.

"I authorized five wiretaps that night in my living room at 3 o'clock in the morning at a hearing I conducted at home that led to some of the most productive evidence that was used in the trials in New York of the terrorists who set off those bombs, the bin Laden associates who set off the bombs in Africa."

Not nimble enough?

Our conversation took place in early December, before the revelations that the Bush administration was bypassing FISA and ordering wiretaps without court warrants.

start quoteThe FISA court was never interested in statistics or playing the numbers game.end quote
-- Judge Royce Lamberth

Lamberth made no direct reference to the dispute, though a recent report in the Washington Post makes it clear that he was aware of the domestic spying program and was unhappy with it.

Pre-9/11, the most frequently heard complaint about FISA and the court was that warrants were approved routinely.

Lamberth disagreed, saying the court was not a rubberstamp for the government.

"The FISA court was never interested in statistics or playing the numbers game. So that, many times, an application would be presented and not initially approved or disapproved, but the government would be told to get additional information on this or that, and I would look at it again."

But after 9/11, the criticisms came from a different direction. It was revealed that FBI agents failed to get a FISA warrant to search the computer of al Qaeda suspect Zacarias Moussaoui before 9/11, because they felt the FISA process was too difficult.

Lamberth said the problem wasn't with FISA: "We had already defined al Qaeda as a foreign power in many previous applications, so there was no problem if they been able to tie Moussaoui with al Qaeda or acting for al Qaeda, they could have obtained the warrant."

The Patriot Act changed FISA in several ways. It became easier to get a warrant for someone like Moussaoui who might appear to be a "lone wolf" rather than an agent of a specific group, and government prosecutors began getting easier access to FISA warrants.

'Need for speed'

The most significant challenge to the court has come from the Bush administration and is at the heart of the warrantless wiretapping dispute.

Despite provisions that allow the government to begin a wiretap 72 hours before seeking a FISA warrant, and giving the president 15 days after a declaration of war before seeking warrants, the Bush administration decided it need more flexibility.

FISA was a valuable tool, Attorney General Alberto Gonzales told Congress last week, but it wasn't always fast enough.

"The terrorist surveillance program operated by the [National Security Agency] requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack," he said. "And we cannot afford to fail."

He also criticized the procedures necessary to get a FISA warrant.

"If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system."

Already one FISA judge has resigned from the court, apparently unhappy that it is being bypassed. And many of the senators who listened to Gonzales expressed skepticism about the surveillance program.

That issue notwithstanding, the FISA court is still busy. There are more requests coming in than ever before, more than 1,750 during 2004. That's almost 150 per month.

Twenty-seven years after the FISA court was created, it will finally soon move into its own home at the U.S. District Courthouse in Washington. The question facing it is its own relevance.

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