FISA and the Fourth Amendment


The Stand-Squillacote-Clark Case

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The U.S. government has been wiretapping, bugging, and breaking and entering the home of anyone it suspects of being an "agent" of a "foreign power." The "foreign power" can be a government, a faction of a government, or just an organization in a foreign country. Under the Foreign Intelligence Surveillance Act, or FISA, it doesn't matter, and neither does the Fourth Amendment to the Constitution, as three people now under arrest in northern Virginia have discovered.

On October 4, 1997, Kurt Stand, Theresa Squillacote, and James Clark were arrested and charged with conspiracy to commit espionage for the now-extinct German Democratic Republic (GDR) and USSR, Russia, and, as a result of a sting operation, South Africa. The charges were the end product of nearly two years of indiscriminate wiretapping and searches of their homes apparently justified solely because their names appeared in purloined GDR Stasi files, because Squillacote and Clark held "secret" level security clearances, and because their political sympathies were known to be left-wing, probably as a result of their student activism at the University of Wisconsin-Milwaukee twenty years ago. Stand and Squillacote are married and have two children. All three have been denied bail.



 The Foreign Intelligence Surveillance Act

First passed in 1978 in the wake of the Church Committee's revelations about a host of illegal wiretaps and break-ins carried out by the FBI during the civil rights and anti-war movements, FISA was touted as the fix needed to correct the abuses that characterized that era, many of which were part of the FBI's infamous COINTELPRO effort that targeted domestic dissent in the 1960s and 70s. FISA set up a secret court made up of a rotating membership of U.S. federal district court judges empowered to authorize electronic surveillance for counterintelligence purposes only. The information gathered in this fashion was not intended for use in a criminal prosecution since the surveillance lacked the elementary requirement of the Fourth Amendment--that there be probable cause of criminal activity. The surveillance orders granted and their justifications are classified and kept secret from the defendants' lawyers unless they succeed in getting the trial judge to release them--a rare and almost unheard-of event. In addition, FISA broadly defined the term "foreign power" such that most foreign entities of any kind could meet its criteria--be they factions of governments in a civil war, political organizations such as the Irish Republican Army or the Palestine Liberation Organization, or real, "recognized" governments. Thus the law makes a distinction that a defendant suspected of activity associated with the PLO or IRA is not entitled to the same constitutional protections as, for example, the suspects in the Oklahoma City bombing, simply because the latter acted without reference to a "foreign power."


FISA searches soar in the 90s

In 1995, with the support of the Clinton Administration and a Republican Congress, FISA was expanded to permit the FISA court to authorize physical searches based on the same minimal level of suspicion that could justify electronic surveillance. For the first time in its history, the U.S. government received congressional permission to conduct actual searches of U.S. citizens and legal residents outside the parameters of the Fourth Amendment. At the same time, the Clinton Administration set out to integrate the efforts of the intelligence community and the Justice Department, often at bureaucratic odds. The results have been predictable, if discomfiting. FISA orders have increased from 576 in 1994 to 839 in 1996--a whopping 46 percent.


The defendants fight back

Attorneys for Stand and Squillacote have filed motions challenging the use of FISA. First, they contend that the government lacked probable cause to believe that any of the defendants were agents of a foreign power when the FISA warrants were sought (leaving aside whether they ever could have been construed as agents). Both the GDR and USSR had ceased to exist years before the orders were obtained, and there was no allegation that even on its face would constitute espionage for Russia. The government became aware of a letter admiring a book by an ANC official of the South African government, which inspired the sting, only as a result of the surveillance.

Second, the government belied its intention in the FBI complaint when it stated that the sting was launched to "ascertain the scope, nature, and substance" of the defendants' "prior espionage activities"--activities it has yet to enumerate. Indeed, by its own account, the government claims only that their names were found in the files of East German intelligence (just exactly which files and who has possession of such files remains murky). Thus it is clear that the purpose of the surveillance was primarily to investigate an alleged criminal conspiracy, not simply to gather foreign intelligence.

Third, the FBI ignored the requirement in FISA that steps be taken to minimize the invasion of privacy inherent in electronic surveillance and physical searches. Over 4,000 conversations between the defendants, their friends and acquaintances were recorded. Prior to the sting, it appears none of them had anything to do with espionage or national security. They did, however, include conversations about Squillacote's mental health and severe depression with her husband, relatives and doctors. In fact, the government used the information it gleaned from the wiretaps to best exploit Squillacote's mental state in order to fashion the sting.

Defense attorneys argued the motions on April 6, 1998 and are awaiting a ruling from the judge. If these motions fail at the trial level, they will be appealed.


The FBI doesn't get it

It's clear the FBI's difficulties with the notion of domestic dissent over U.S. foreign and defense policy has not ended. Ten years after COINTELPRO was exposed and denounced in the U.S. Congress, the FBI launched surveillance of CISPES (the Committee in Solidarity with the People of El Salvador), the leading organization in opposition to U.S. policy in Central America. Over 1,000 progressive organizations were illegally wiretapped during the two years before the Justice Department belatedly called off the FBI.

The use of FISA against Stand, Squillacote, and Clark is based on the same assumptions about political beliefs and associations that tainted the FBI's operations during the McCarthy era, the civil rights movement, the antiwar movement, and the campaign against U.S. policy in Central America. When it comes to the First and Fourth Amendments, the FBI just doesn't get it. The only way to preserve the promise of the Bill of Rights for all of us is to join the defense efforts in this case.

To contribute to the defense, send a donation to:
Fund for the Fourth Amendment
P.O. Box 5685, Washington, D.C. 20016

To assist in the support of the children of Kurt Stand and Theresa Squillacote, please make donations payable to:
Stand Children's Trust
P.O. Box 5685, Washington, D.C. 20016


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