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THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
AND AMERICA'S SECRET COURT!

Paul DeRienzo
Joan Moossy

Imagine a secret court made up of anonymous judges chosen by the Chief Justice of the Supreme Court and empowered to grant wiretaps, approve break-ins, tap psychiatrist's offices and bug homes--all without probable cause. The hearings are conducted in secret without notification of the proposed target and without due process, since the subjects of the investigation cannot challenge the evidence or answer the charges brought against them.

Such a secret court does in fact exist. It was created in 1978 under a law known as the Foreign Intelligence Surveillance Act (FISA), that was designed to limit the abuses of authority made legion under the administrations of President Richard Nixon and FBI director J. Edgar Hoover.

However, according to many legal experts, FISA may in fact facilitate civil rights violations against Americans. Even conservatives, like Yale law school professor Robert Bork, who said that FISA would "not be the first regulatory scheme that turned out to benefit the regulated rather than the public," are troubled by this legislation.

The roots of FISA lie in the upheavals in the 1960s and `70s. During that time, countless citizens were drawn into a plethora of political activism, from the civil-rights movement to anti-war demonstrations. Rebellions rocked cities and college campuses as people began to seriously question their government as the bloody, unpopular Vietnam war raged on. The federal government moved quickly to staunch the tide of rebellion and social change through a program of dirty tricks and unprecedented violations of personal rights and privacy, often justified as necessary for national security.

As public outrage toward government abuses grew, Congress was forced to investigate, through a committee headed by Senator Frank Church of Idaho. The Church Committee found that the nation's intelligence agencies had ignored and violated the Constitution. The FBI was responsible for the infamous COINTELPRO counter-intelligence program that targeted those forces that Hoover believed were politically dangerous, such as the Black Panther Party, the American Indian Movement, and a host of popular political leaders, including the Reverend Martin Luther King Jr. and Malcolm X. Until the Church Committee report, freewheeling conduct by intelligence agencies under the purview of the executive branch had been considered part of the president's "inherent authority," a concept popularized under President Nixon's term of "executive privilege." One of the main issues was the separation of federal domestic law enforcement and counter-intelligence activities. Electronic surveillance in criminal investigations requires a warrant under Title III of the Omnibus Crime Control Act of 1968 and the Fourth Amendment of the US Constitution. The purpose of FISA was to create a warrant procedure in counter-intelligence surveillance to allegedly right the wrongs of the Nixon years. Warrantless national security surveillance is illegal if its basis is the furtherance of a criminal investigation.

When FISA was enacted, Senator Edward Kennedy, chair of the House-Senate FISA conference committee, predicted that domestic targets of the Act might number about 100 each year. In the 20 years since FISA, the court has not turned down any of the government's approximately 10,000 surveillance requests. According to a Department of Justice official who conducted an internal review of FISA, "So many FISAs were being conducted with so few attorneys that the review process to prevent factual and legal errors was virtually nonexistent."

Using FISA, the FBI has investigated over 1,330 progressive domestic political and religious groups due to their solidarity with the Committee in Support of the People of El Salvador (CISPES). According to Herman Schwartz, writing in The Nation, "The enactment of FISA has not eliminated the incentive to use intelligence gathering authority improperly to obtain evidence for criminal prosecutions."

After the exposure of FBI spying against CISPES in the 1980s, pressure for reform began to build. In 1995, Attorney General Janet Reno issued new guidelines setting rules for the conduct of FBI agents in counter-intelligence operations using electronic surveillance. But the new guidelines also expanded FISA to permit physical searches based on the same minimal level of suspicion used to permit electronic surveillance. The 1995 extension of FISA now allows, for the first time in US history, actual searches of citizens and legal residences outside of the Fourth Amendment.

Electronic_Surveillance_Warrants-1979-1996

The Department of Justice's internal report spreads the alarm that "Under the Clinton administration, the nation's two systems for wiretapping - [Title III] for criminal cases, [FISA] for intelligence gathering - [have] become freight trains running at full throttle down parallel tracks."

Despite the collapse of the Soviet Union and the Eastern European communist bloc in 1991, FISA wiretap and search authorizations have increased dramatically from 484 in 1992 to 839 in 1996, while Title III criminal wiretaps have increased at a slower rate, from 340 in 1992 to 581 four years later. Currently, more FISA wiretaps are approved each year than are criminal wiretap warrants.

Although the stated goal of FISA is to protect the rights of citizens while allowing counterintelligence probes under the president's authority to conduct foreign policy, the catch is that the law allows the fruits of FISA searches and wiretaps to be introduced as evidence in criminal prosecutions.

SQUILLACOTE-STAND CASE

In February 1998, Kurt Stand, Theresa Squillacote, and James Clark were indicted under FISA for allegedly conspiring to commit espionage for the former German Democratic Republic, the Soviet Union, the Russian Federation, and the Republic of South Africa. The three have known one another since the early 1970s, when they were members of student organizations at the University of Wisconsin-Milwaukee.

Stand, 43, North American representative of the International Union of Food Workers, along with Squillacote, 40, his wife of 20 years and a former procurement lawyer for the Pentagon, were charged with attempted espionage and obtaining national defense information to be used to the injury of the United States. Squillacote was also charged with violating an oath regarding the handling of classified material, upon her January 1997 resignation from the Pentagon.

The FBI doesn't say how it came to believe that Squillacote and Stand worked for East Germany. The government's affidavit is deliberately unclear about the source of this information. Under FISA, the FBI is permitted to hide its sources from the defendants and provide the information only to the secret FISA court.

In 1996, the FBI began a 24-hour surveillance of Stand, Squillacote and Clark, which lasted for nearly two years. The surveillance intruded into all aspects of their lives, including their family, health, relationships, finances and professional work. Most seriously, the surveillance targeted direct conversations with Squillacote's psychiatrist and included a hidden microphone in her bedroom recording conversations with her husband. The FBI also prepared a psychological profile of Squillacote, identifying what they perceived to be her vulnerabilities.

In one of three secret searches of the Squillacote-Stand residence ,the FBI found a 1995 letter from Squillacote to South African Defense Minister and Communist Party leader Ronnie Kasrells. That stolen letter became the basis of the government's sting operation. Later, an FBI agent posing as an official of the Mandela government approached Squillacote, requesting information. The documents Squillacote removed from the Pentagon and turned over to the undercover FBI agent are the only actual documents involved in the entire case. No documents are alleged to have been turned over to a foreign power.

The FBI also forged a letter from the South African government with Kasrells' signature, requesting meetings with Squillacote. The letter said that the South African government needed Squillacote's assistance in the United States, and eventually, a series of meetings were set up between Squillacote and the phony South African. When the arrests were made in October 1997, the FBI originally announced that the sting had been carried out with the cooperation of South Africa. The South African government protested and demanded an apology, which was personally extended by FBI director Louis Freeh. Kasrells offered to attend the trial and testify on Squillacote's behalf.

THE TRIAL

Squillacote and Stand were imprisoned without bail and the case was set for trial before United States District Judge Claude Hilton in the Eastern District of Virginia, the so-called "rocket docket," where conservative judges and juries are famous for making short work of defendants in speedy trials. Supporters of Squillacote and Stand maintain that the government went "venue-shopping" and the arrests were made in Alexandria, Virginia, in order to avoid a liberal Washington, DC jury. Several jury members have ties to national security interests, which is unavoidable in that jurisdiction.

Judge Hilton refused to suppress evidence collected during a six-day search of Squillacote and Stand's residence. Hilton also ruled that extensive wiretaps of their conversations were legally authorized, and he rejected a bid for a "taint hearing," after defense lawyers argued that FBI agents used wiretaps to collect information protected by psychotherapist and marital privileges.

The Squillacote-Stand trial began on October 9. James Clark, a former civilian Army employee who had pleaded guilty months earlier, testified for the prosecution about Squillacote and Stand's alleged relationship with their East German handler. Clark said that he passed secret documents to the same man in the 1970s and `80s, but that neither Squillacote nor Stand told him that they gave the East German classified information.

Defense attorneys pointed out that prior to the FBI's 1996 sting operation against Stand and Squillacote, 200 agents had uncovered nothing of a criminal nature in Squillacote or Stand's behavior, despite taping their every phone call, bugging their home, and searching through their home and trash. Aside from what Squillacote had passed to the FBI agent who entrapped her, there was no evidence of any classified documents being passed on to foreign agents.

Defense lawyers further maintained that the Feds had launched a sting operation against Terry Squillacote because they deemed her to be vulnerable as a result of their Behavioral Analysis Program (BAP) Team Report and played on her vulnerabilities, coercing her into breaking the law.

Squillacote's attorney Lawrence Robbins questioned FBI agent Douglas Gregory, who had represented himself as a representative of the South African government in the "false flag" sting operation against Squillacote. Gregory revealed that the FBI had extensively researched Squillacote's family history of depression and suicide and her dependence on psychiatric drugs, including the antidepressant Zoloft. Gregory admitted that even though Squillacote apparently did not regard the letter from Kasrells as an invitation to become a spy for South Africa, it was he who put the idea into her head, and that he had carefully cultivated the espionage relationship, timing his moves on the basis of Squillacote's mood swings. Although the possibility that the sting operation might result in Squillacote's suicide was discussed and confirmed, FBI agents decided to go through with the operation.

In spite of the strong evidence that entrapment had occurred, Squillacote and Stand were convicted on October 23 of conspiring to commit espionage, attempting espionage and illegally obtaining national defense documents. Squillacote was also convicted of making false statements to the federal government. Squillacote and Stand could be sentenced to life in prison.

In a post Cold War world where the tensions between former great powers has been replaced by a multiplicity of struggles throughout the developing world, many more Americans will likely become involved in the affairs of countries at odds with US foreign and economic policy and may find themselves under attack under FISA. According to a 1978 editorial in The New Republic, "The vagueness of the requirement under FISA that the target of surveillance be a foreign power or agent of a foreign power invites abuses...conceivably, it could include any American with commercial, educational or personal relationship with a foreign person or organization."

[For more information on this case, contact the Friends of Kurt Stand and Theresa Squillacote at 212-209-2955.Contributions for their children can sent to: Stand Children Family Trust at Crestar Bank, Hillandale Office, 1700 Elton Road, Silver Spring, MD 20903, Account #20935-7355. Cards and letters can be mailed to Terry Squillacote or Kurt Stand at: Alexandria Detention Center, 2001 Mill Road, Alexandria, VA 22314]


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