Wiretap Ruling Surprise

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

It's no surprise that a special appeals court Monday upheld the government's right to conduct broad surveillance operations that break down the traditional wall between foreign and domestic snooping. The law, and the court itself, were set up to effectuate such operations as much as remotely possible given constitutional restraints. What is surprising is that the distinguished panel of judges found that the government has had this extraordinary power since 1978 -- but for some reason decided not to use it.

That's right, for about 20 years now, the government has unilaterally tied its own hands when it comes to interpreting the Foreign Intelligence Surveillance Act. "We think," the appeals court declared, "that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government's use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution." (emphasis in original)

Quite naturally, then, the judges were left scratching their heads about the manner in which the law had been interpreted and applied. "It is quite puzzling," the court noted, "that the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department's ability to obtain FISA [surveillance] orders if it intended to prosecute the targeted agents-- even for foreign intelligence crimes."

It ought to tell you something about the language of the act that Republican and Democratic administrations alike would voluntarily limit their use of it through a series of timid and, as it turns out, mistaken interpretations. Any law that fools that many good attorneys for that long isn't worth the paper it is printed on. But the false perception that FISA created some sort of barrier between foreign-related surveillance and domestic law enforcement was so high and broad last year that one of the first things Congress did in the wake of the terror attacks on America was to move to breach that barrier.

There was extraordinary fanfare last fall -- but almost no genuine contemplation -- when the USA Patriot Act was passed. And one of the Act's more highly-promoted features was its common sense approach to the problem perceived in the FISA. The Patriot Act, the judges ruled Monday, "expressly sanctioned consultation and coordination between intelligence and law enforcement officials." The only problem was that the Patriot Act was fixing a problem in FISA that did not really exist. And so when the special appeals judges began to look at the Patriot Act and FISA together, they concluded that Congress by passing the Patriot Act had essentially ratified the false barriers in FISA that were, in turn, the product of faulty legal analysis.

Still with me? Good. We're almost done. After reaching these conclusions -- in other words, after highlighting for all the world the massive confusion that existed for decades over the scope of FISA -- the judges then declared that they were faced "with something of an analytic conundrum" by virtue of the government's arguments. On the one hand, the court noted, Congress in the Patriot Act did not change the definition of foreign intelligence information to make the surveillance sharing easier. On the other hand, the court added, Congress accepted the false "dichotomy between foreign intelligence and law enforcement."

So what's a court to do? Well, what this court did was, in its own words, "read the statute to honor congressional intent" which means, finally, that there is now on the books an unappealable federal appeals court ruling that says that foreign intelligence information cannot be used only if its sole objective is a future criminal prosecution. At the end of the day, then, the Patriot Act solved a problem that did not exist and, in doing so and with the help of the court, actually expanded the government's authority to snoop around at home and abroad. You just cannot make this stuff up.

By Andrew Cohen