229: Secret Government

Ira Glass

John Podesta used to see a lot of classified documents in his old job as White House Chief of Staff under President Clinton.

Ira Glass

Even back then, during an administration that declassified 800 million documents, that tried to release any government document possible under the Freedom of Information Act, even back then a lot of stuff that stayed secret just did not really need to be secret. It's just the way government works. And so, under the current administration, the Bush administration, there's probably also stuff that does not really need to be classified.

In putting together today's radio program, I've tried to compile a list of all the new things the government is keeping secret. And there are so many of them, I do not even know if I've got them all. Are you ready? There is the vice president in a lawsuit over whether he has to release the names of people that he met with in forming his energy policy. There's the executive order that lets former presidents keep more of their old documents secret. There's the official Bush administration policy not to release any document under the Freedom of Information Act if there is any legal way to avoid it. Committee chairmen in Congress-- these are Republicans, mind you, Republicans-- are complaining publicly that they cannot get information out of the administration, out of the agencies that they are supposed to be overseeing.

And all this stuff is before you get the stuff that has to do with the War on Terror. Add that, and you've got the federal government pulling information from its own websites and removing its documents from public libraries. There are the secret trials and deportations of suspected terrorists. To people being held without any charges at all in military brigs, as many as 400 people being held as material witnesses because the government wants to get information out of them. The new kinds of wiretaps that have been authorized. There is the Total Information Awareness Program, in its pilot stage, which will be able to monitor all of our credit card and bank transactions, our phone calls, our email, our medical records. The part of government that is secret is growing.

And so we thought today we would step back, take a look at exactly how far it's gone. From WBEZ Chicago, it's This American Life, distributed by Public Radio International. Today on our program, The Secret Government, A Beginner's Guide. Our program today in three acts. Act One is about disappeared persons, American citizens held without charges. Act Two is about people thrown out of the country after secret trials. Act Three is about a secret court made of conservative judges that got so upset about what the current Justice Department was doing in secret that for the first time in the court's history it broke its veil of secrecy and went public. Stay with us.

Ira Glass

Act One, Until the End of the War. There are at least two American citizens being held without charges, unable to see lawyers, in military jails in the United States. There could actually be more. Jack Hitt tried to find out everything he could about one of these guys, who you may remember from the news a while back, Jose Padilla.

Jack Hitt

Here's the way most of us remember it, if we remember it at all. A Monday morning last June, all the major networks broke from their programming to go to a live satellite broadcast by Attorney General John Ashcroft, from Moscow of all places. Here's CNN.

Jack Hitt

And then, an hour after that press conference, the administration launched a series of other press conferences. Right away, they were backing off Ashcroft's spine-tingling sense of alarm. Paul Wolfowitz from the Pentagon said it probably wasn't a plot, just some, quote, "loose talk." And here's what FBI director Robert Mueller had to say about it.

Jack Hitt

The timing of all this was curious, because they'd actually nabbed Padilla a month before, but chose to announce it on a day when Washington was reeling over FBI whistleblower Colleen Rowley. It pushed her off the front pages. You remember Rowley. She was testifying in Congress about all the FBI bungling and miscommunication that made us miss the clues pointing to 9/11. More than a few people noticed that the Padilla announcement applied a certain emphasis on bureaucratic efficiency and inter-agency cooperation.

Jack Hitt

The administration was furious with anyone who noticed these coincidences. Here's a White House press conference just after the Padilla story broke.

Jack Hitt

In the days afterwards, we learned a little of Padilla's life. His rap sheet as a gang member in Chicago. His involvement in a murder-- it was a gun charge in Florida. He worked at a Fort Lauderdale Taco Bell, where he converted to Islam. Later he traveled to Pakistan and Afghanistan. There, according to two Al-Qaeda informants, he met with terrorist leaders and learned about dirty bombs.

In one court filing, the government admitted that their prime source on Padilla, Al-Qaeda leader Abu Zubaydah, had frequently fooled them with false information. The other informant, the government said, had recanted part of his testimony. With that hovering in the air, the story disappeared, and with it Padilla-- literally. The government did something to him it has never done to anyone. They transferred him from a civilian jail to a military brig outside Charleston, South Carolina. They refused to let him see a lawyer and they never charged him with anything. His own mother can't visit him. He will stay in his cell with the lights burning 24 hours a day, according to Ari Fleischer, quote, "for the duration of the war."

This was achieved by redefining Padilla with a new term that everyone heard for the first time that Monday morning.

Jack Hitt

Enemy combatant. The rules of war talk about "unlawful combatants," but that term applies to soldiers caught on the field of battle. Enemy combatants can be American citizens seized in America and held without a lawyer or charges, or without much explanation from the government itself. If you try to get the Justice Department to talk about Padilla, here's what they say.

Jack Hitt

They wouldn't do an off-the-record interview about him either, and on the rare occasions when officials have had to talk about it in public, here's the sort of thing you get. This question was asked at the joint press conference, of Larry Thompson from the Justice Department.

Jack Hitt

Does he now, she's asking. Does he have legal representation now? Thompson ignores her, takes one more question, and then ends the press conference. The answer to the question, of course, is no. Padilla lost his lawyer only a few hours before this press conference, when he was redefined as an enemy combatant.

A word now about that lawyer. For the month prior to the Ashcroft press conference, Padilla had been held in jail as a possible material witness for some kind of crime. We don't know what it was. For the indigent, though, there's a round robin of good working lawyers who donate their time. For Padilla, the wheel spun and turned up a defense lawyer who hangs her shingle across the street from the courthouse in Jersey City, New Jersey. Located just above a bail bondsman office, it's a two-woman shop-- a secretary named Angela and a lawyer, Donna Newman.

Newman works the standard criminal defense beat-- fraud, money laundering, mobsters, drugs. Not the sort of lawyer who usually ends up suing the Attorney General, Secretary of Defense, and the President of the United States.

Jack Hitt

When Newman first got the case, it was like dozens she'd seen. File a bunch of papers contesting the warrant, seeking bail-- routine stuff. And the judge sets a hearing date, in this case June 11. June 11 was also the day John Ashcroft broke into regular television programming around 10:00 AM with his Moscow conference about Padilla. Not everybody was in front of a TV to hear, people like Padilla's lawyer, Donna Newman.

Jack Hitt

To explain what happens next, I have to talk about something so basic, a principle that's so ingrained in what this country is, that most of us don't even know it exists-- habeas corpus. We've all heard that phrase, although let's be honest, we don't quite know what it means.

Actually, it's the most fundamental routine of all Western law. It's 700 years old. Its meaning in Latin, "you hold the body," sounds like a challenge, and it is. At every criminal arrest, it orders the government to show the body-- in other words, show me the guy you're holding, so I can see he's OK, and second, tell us the charge against him. Known as "the great writ of liberty," its suspension was, along with unfair taxation, the primary reason for the American Revolution.

The founding fathers enshrined habeas in Article I of our Constitution, declaring it could be suspended only during, quote, "rebellion or invasion." When a government starts tossing out things as foundational as habeas, the proceedings quickly grow strange. Soon after the Ashcroft press conference, Newman went to court to find out what happened to her client. She was told she no longer had a client, because her client no longer had a lawyer. But Newman wouldn't hear it. She kept on filing motions as if the old routines of the law were still in place. That said, she was in uncharted terrain, and the problems she encountered were often surreal.

Jack Hitt

The government did cite legal precedent for its right to hold Padilla, specifically two cases.

Jack Hitt

Let's talk about those cases. The Territo case involved a man who was born an American citizen but who grew up in Italy. He was captured on the battlefield in World War II, fighting on the side of fascist Italy. Unlike Padilla, he was charged, given a lawyer and a trial. The Quirin case involved eight Nazis, including one American citizen, who actually landed on Long Island in 1942 with plans to blow up US factories. They were all given lawyers and had trials, even though the war was on.

The only question in both cases was what kind of proceeding, in a civilian court or a military tribunal? There was no question that they'd get lawyers and trials.

Jack Hitt

Even though the Justice Department won't speak on the record to journalists, there have been rare occasions where certain officials have tried to explain what has happened. Here's assistant Attorney General Michael Chertoff at a public forum at the New York University law school. He says the question raised by the Padilla case is this one.

Jack Hitt

Chertoff takes for granted the assumption that since planes flew into buildings on 9/11, everywhere in America is now a battlefield. And on some level, we all know there's some truth in this. But still, there are distinctions. No one is talking about providing lawyers to the Al-Qaeda terrorists in Guantanamo. They're prisoners of war captured in Afghanistan. Padilla is an American citizen seized in Chicago. And then there's that phrase he used, "lawyer up," as if this involves someone who spilled hot coffee on her lap at McDonald's, and not the suspension of habeas corpus that dates back 700 years and is one of the core principles of our Constitution.

America was founded on the proposition that when we get in trouble, we get lawyered up. And part of what's so confusing about Padilla is that so many other defendants have been lawyered up. Remember John Walker Lindh, the so-called American Taliban? He was actually captured on the field of battle in Afghanistan. Now that's an enemy combatant. He got lawyered up. The Buffalo Six, those young Muslims who slipped into Afghanistan and then came back to America? Arrested and lawyered up. How about Zacarias Moussaoui? He's not even an American. He's a French Moroccan, and was allegedly the 20th guy on September 11. Lawyered up. In the end, it may be that the real reason Padilla has been refused a lawyer is not the alarming evidence against him, but the opposite.

Jack Hitt

Warning. Restricted area. Keep out. Authorized personnel only. Man, this thing is huge.

Over the Christmas holiday, I was in Charleston, South Carolina, visiting my mom. One morning, my nephew and I drove over to the Navy facility where the government's holding Padilla. I got turned away, of course, told that the closest I could get was the fence, so I pulled over. Behind the barbed wire was, strangely, nothing more than acres and acres of low-country pine forest, the kind I grew up in. Deep in it, somewhere, was the brig and Jose Padilla.

Just before this, the New York Judge who was hearing Donna Newman's motions, Michael Mukasey, issued his ruling. It was a Solomonic one. He said Padilla could finally meet with his lawyer to challenge his status as an enemy combatant. But he also said President Bush had the power to declare American citizens on home soil to be enemy combatants. Finally, he also said the court should oversee it all.

The tone of Mukasey's opinion is nervous. He's nervous. At one point he opines about the kind of case, quote, "a judge is unqualified for but must decide." And if you read all those old opinions, like the World War II cases, all the judges write in the same nervous tone. They don't toss off habeas very easily. Supreme Court Justice Felix Frankfurter, who supported the Quirin decision when it came down, groaned later, "It's not a happy precedent."

In comparison, the Bush administration is not agonizing about suspending this basic right, at least not publicly. While in the Persian Gulf, Secretary of Defense Donald Rumsfeld complained about folks who are concerned with Padilla's right to see a lawyer. Quote, "Our normal procedure is that if somebody does something unlawful, that the first thing we want to do is apprehend them, then try them in a court, and then punish them. In this case, that is not our first interest. Our interest, really, in this case is not law enforcement. It's not punishment. Our interest at the moment is to try to find out everything he knows."

Maybe Donald Rumsfeld is right, that the War on Terror is so important that we do need to lock people up without charges for the duration of the war just to find out what they know. Maybe it's true that the new battlefield is not just in Afghanistan but extends everywhere and anywhere on our own soil. Maybe it's true that even though in every previous war the courts have permitted some kind of trial, this war is different.

And maybe it's true that we have to trust the government when it says, the secret evidence against these Americans can't be revealed in a court of law. Maybe we need to be rethinking our basic Constitutional rights. But if so, it's not to be done lightly, not to be done off the record. We should, as a people, talk about all this and agree on it first.

This week, The Wall Street Journal reported that the government is preparing to declare some more American citizens here at home to be enemy combatants and remove them to military bases. So start talking.

Ira Glass

Jack Hitt in New Haven.

One quick footnote to that story, before you start talking. Late this week, the government went to the judge in Jose Padilla's case and asked the judge to consider changing his recent decision about Padilla, specifically his decision to let Donna Newman meet and confer with Padilla as lawyer and client. The reason the government gives for this? They're interrogating him, they say. And the government says that if he sees a lawyer and has any hope of getting out any time soon, he won't give any information in the interrogation.

OK. You have one minute to start talking. Coming up, a sneaky way to get some answers about secret deportations. That's in one Chicago minute from Chicago Public Radio and Public Radio International, when our program continues.

Ira Glass

It's This American Life. I'm Ira Glass. Each week on our program, of course, we choose some theme, and bring you a variety of different kinds of stories on that theme. Today's show, The Secret Government, a beginner's guide to all the new secrecy in our country. We've arrived at Act Two of our program. Act Two, Secret Trials and Secret Deportations.

In the current war, the War on Terror, the government has been rounding up foreigners, checking their immigration status, and then sometimes deporting them. David Kestenbaum tried to find out everything that can be found out about who they are and what happened to them once they were arrested and put on trial in secret.

David Kestenbaum

In the months after September 11, the US government rounded up over 700 immigrants, 700 people, and refused to talk about them, even in court. Civil rights groups sued to get the names, and as part of the filings, here's how far things have gone. The government submitted a 118-page list of people who had been detained, their names, one by one, inked out with a black marker.

David Kestenbaum

Today, the Department of Justice will only talk round numbers. You're about to hear just about everything the government has to say on the subject. I talked with Jorge Martinez, a spokesperson for the DOJ.

David Kestenbaum

What is the government hiding? If you want to know who was deported, why they were fingered in the investigation, how long they were held, did they get a fair trial, did they get to make a phone call, you have to try somewhere besides Washington, D.C.

David Kestenbaum

Swissair Flight 246 to Pakistan. Coach class, unwatchable movie starring Robin Williams. Our mission: to meet some of the 400 people who got kicked out and find out what happened. Let me say up front that the people you're going to hear were tracked down by the American Civil Liberties Union, which thinks the government behaved very badly here. Emily Whitfield from the ACLU is also on the plane. She's sitting up in business class.

When the feds wouldn't release the names, the ACLU did something clever. It did an end-run around our government and wrote letters to foreign embassies requesting the names of deportees, letters to the countries where the people had been sent back to.

David Kestenbaum

The plane takes a weird turn to fly around Iraq, and lands in Karachi, Pakistan. This is where Daniel Pearl was kidnapped and decapitated. Bin Laden himself may be hiding in Pakistan. I think about this, getting off the plane. To find out what the Justice Department is hiding, I've gone somewhere the State Department warns not to. Non-emergency personnel at the embassy here have been ordered to leave.

Over the course of a week, I visit a handful of people who have been deported from the United States. Here's the deal. The Pakistani embassy's list had over 100 people on it. The ACLU, with the help of a Pakistani civil rights group, tracked down about 35 of those. 19 were willing to talk to the press. Of these, the ACLU people set up interviews with five whose cases they thought were compelling. And yes, in some instances, the US government seems to have behaved in ways I think many Americans would think was pretty unfair. But I have to say, other times things didn't seem so bad, even in these hand-picked cases. But you can judge for yourself. Also there was one nagging question every deportee had. I'll get to that later.

David Kestenbaum

The cab driver on the first day has a long white beard and says he was a big fan of the Taliban, but he seems perfectly nice. He stops to ask directions a few times and pulls into a dusty street where a man named Ansar Mahmood lives. Until recently, Ansar and his family lived 7,000 miles west of here in New Jersey.

Ansar's story begins like this. One morning, three weeks after the attacks on the World Trade Center, his doorbell rang. Ansar looked out the window and saw 25 or 30 FBI agents. He says he knew they were FBI because they had FBI on their jackets just like on TV. The FBI arrested him. His wife, Uzma, says that for 25 days, she had no idea at all where he was.

David Kestenbaum

Here's what Ansar says happened to him. When the FBI came by, the agents asked if he knew anything about Osama Bin Laden. They also asked about Ansar's brother-in-law, who they suspected was involved in credit card fraud. Ansar says the FBI eventually took him into custody for a different reason, because he had overstayed his visa. This, he admits, is true. He was working in the country illegally, using a fake Social Security card.

They put him in a jail near the Brooklyn-Queens Expressway. He says he was told not to ask any questions or he would be killed, and he was placed in solitary confinement for four months.

David Kestenbaum

After a month, jail personnel painted over the window, possibly for security reasons, possibly to avoid quotes like the one you just heard. Ansar says the cell became like a grave. Seven months after he was taken into custody, the INS took him out of jail and deported him to Pakistan.

A word of caution here. If you feel like you've heard stories like Ansar's before, you may have actually heard his. His family has become a poster child for groups who oppose the government's secret deportations.

David Kestenbaum

Ansar's son, Uzer, who's 14.

David Kestenbaum

His dad's case was unusual. Ansar was detained for seven months. The average time seems to be about two months. And the fact that his family didn't know where he was for weeks-- that seems to be very unusual.

Uzer's dad did get his time before a judge. He was convicted of a felony for using an altered Social Security card and deported for overstaying his visa. It's worth mentioning that these are pretty common offenses. By the government's own estimates, there are over a quarter million people in the United States who have overstayed their visas and have been told to leave. So what brought 25 FBI agents to Ansar's door and not others? That's a mystery. But still, an overstayed visa is a deportable offense. As for all the secrecy, Uzer thinks it's because the government is embarrassed. It doesn't want to be seen picking on families like his.

David Kestenbaum

Uzer says life in Pakistan sucks. Neither he nor his brothers really speak the language. Kids at school have thrown rocks at them, calling them Americans, though of course they weren't real Americans, American citizens. Uzer and his brothers played basketball when they lived in New Jersey. I ask if they need a new ball. I can send them one. Uzer looks at me and says, man, what we need is a court.

This is the part of the story where you would typically hear the US government's side of things, the government's take on what happened to Ansar and why they were investigating him in the first place. But of course, it refuses to discuss any of these cases. As a lousy second choice, I've brought along a tape recording of someone from the Department of Justice who spoke at a debate a while back. I'll play some of it for you in a little bit.

The next deportee on the list is Huram Alta. I meet him at his parents' house in Islamabad. We sit on a couch and look over some family photos.

David Kestenbaum

They're all sitting in a toy race car at a Chuck E. Cheese restaurant. While Huram and I talk, a guy named Wassim walks in. He's big and adorable. You could put him on a teen pinup poster. Wassim and Huram met in jail. Wassim is also on the ACLU list of appealing, mediagenic people kicked out of the United States. And he also has an ironic looking-out-the-jail-window story.

David Kestenbaum

But here's the thing. Talking to these guys, it seems like what they went through is no worse than the sorts of hassles immigrants in America have gone through with the INS for decades. Their stories don't explain the secrecy. In some ways, the two were treated well. Their families knew where they were. They got to make phone calls. Huram says the people in jail weren't mean or abusive. In the end, he was detained for two months, Wassim for one.

And did they get a fair hearing? Here, things get a little fuzzy. The Justice Department will tell you how all detainees are given lists of lawyers who will take their cases pro bono. And they all have access to law libraries and courts. And that's all true, except in practice, both men-- and a lot of these guys-- never got to see a judge. Huram and Wassim are what the INS calls absconders, people who according to its records had been sent letters ordering them to leave the country. The thing is, Wassim and Huram say they never got those letters.

Wassim's lawyer later told me that these are the sort of cases that can go either way. To prevent deportation, a lawyer has to convince an immigration judge to issue a stay and reopen the case. Wassim had some things in his favor. He's married to an American citizen and was working toward a green card, but since September 11, judges seem to be increasingly strict.

I think it's fair to summarize the current US policy like this: if we can deport you, we will, just to be safe. Another guy I met in Pakistan says the INS told him his papers weren't in order and give him a choice-- go to jail, maybe for a year, and fight it, or get on a plane right now. He chose the plane.

Huram pulls out another picture of his family. He and his wife have been lying to his kids, telling them that he's away working, that he had to go overseas.

David Kestenbaum

Huram has been keeping up the lie for eight months now.

I get Wassim and Huram to pose for a picture, ask them to make their best sad-immigrant, please-let-me-back-in-the-United-States faces. They try, but can't stop laughing.

When I try to imagine the government's point of view, I think about the plane that carried these guys back to Pakistan. Maybe most of the seats were filled with people like them. But what if, on the last seat in the back row, there was a terrorist. Was it worth it? After all, three of the September 11 hijackers were in this country illegally.

On one of the last days, I go to meet Asma Jahangir, who works with the Pakistan Commission on Human Rights in the United Nations. It was some of her people who helped track down the deportees. She's a small woman who doesn't joke around much. This is a country where two women a day are killed, some burned alive, for dishonoring their families. Where it's illegal to speak ill of Islam. Where posters have been put up in phone booths, calling for Asma's death. 1/5 of Asma's employees are security guards, all carry big guns. I pull out a second tape recorder and play her part of the debate I've brought.

This is Michael Chertoff, an assistant Attorney General of the United States. You heard him briefly in Jack Hitt's story. He makes a pretty powerful argument. She stares at the tape while it plays.

David Kestenbaum

Asma taps a pack of Benson and Hedges on her desk. Mr. Chertoff, I can send you a tape, but here's her rebuttal.

David Kestenbaum

Then Asma says something that catches me off-guard. She says this bothers her for another reason. When the US starts having secret trials and secret deportations, when human rights erode in the United States, it becomes harder for her to make the case for human rights here. If democracies don't respect human rights, she says, why should dictatorships?

The one central question all the deportees had while I was in Pakistan, the one thing that drove everyone crazy, was the question, why investigate me? Why was Wassim pulled over at 7:00 AM? Why did 25 FBI agents appear at Ansar's door? Most of the deportees felt the US government had singled them out, but this doesn't seem to be quite true. When I got back, I spoke with Muzaffar Chishti, director of the Immigration Policy Institute at NYU's law school. His group has been scouring the newspapers, talking to lawyers, to gather data on as many of these secret detentions as possible. They've now got information on some 400 people, about half the number picked up.

David Kestenbaum

Here's what I've been thinking. Secrecy is like a shot of Novocaine. It keeps you from having to feel anything. It blurs the chain of responsibility. We all want to believe our government is doing a fair job, that it's balancing the needs of security and fairness. We want to believe that someone from another country who's determined enough can make a life here, that those words engraved by the Statue of Liberty actually mean something. The secrecy saves us from having to think about it. It keeps the names and stories inked out.

Ira Glass

David Kestenbaum is filling in as a producer on our show for a few months.

Ira Glass

Act Three, Secret Wiretaps From a Secret Court. We've had a secret court here in the United States since way before 9/11. It's called a FISA court. FISA stands for Foreign Intelligence Surveillance Act. It's a whole court system designed to do one thing: authorize wiretaps on people who may be foreign spies or foreign agents of some sort. And for 24 years since the court's creation, it has never said no to the government on any wiretap request, as best as anyone can figure out.

Then this past year, the court finally did say no, for the first time ever possibly, with an opinion that said that Attorney General John Ashcroft and the Bush Justice Department were going way too far. Note that the judges who said this were all conservatives, appointed to their positions by Chief Justice Rehnquist of the Supreme Court. The judges said that the Justice Department was trying to squeak its way around rules on wiretapping citizens that have been in place for decades now. They cited scores of abuses all done in the name of the War on Terror. The Justice Department, as you might expect, disagreed. A legal fight broke out. Blue Chevigny tells the whole story.

Blue Chevigny

Perhaps the most remarkable thing about this fight is that for the first time, it gives us a glimpse inside the FISA court. Up until now, we've known next to nothing. We didn't know where the secret court met. We didn't know when. We didn't know which government agencies were responding to wiretaps, or what they did with the information they got from the tapes. We didn't know who was getting tapped or exactly why. We did know, because it was part of the original law creating the court, that there were seven judges on the court at any time. They served a seven-year term and they were regular district court judges from around the country.

This is Ann Beeson, a lawyer at the ACLU and one of the people who's tried over the years to figure out what's going on inside FISA.

Blue Chevigny

Some quick background. The FISA statute itself was a compromise that came out of the last big battle between privacy and national security in the 1960s and '70s. In the aftermath of Watergate and other scandals, a Senate investigation known as the Church Committee found that intelligence agents were routinely spying on and wiretapping people they shouldn't be-- like, famously, Martin Luther King, Jr.-- all in the name of national security.

Congress set up the FISA court to make sure that the people that were spied on were actually agents of a foreign power, but in a compromise with the Justice Department, the court was allowed to meet in secret. And also, the standard to get a wiretap through FISA was much lower than in a regular court. Specifically, the Fourth Amendment did not apply. You didn't need to show probable cause that a crime was being committed before you could do FISA surveillance.

The USA PATRIOT Act, which was passed quickly and mostly without opposition through Congress after September 11, changed everything. It altered the language in the FISA act by just one word, a familiar little word we use every day-- the. Before, FISA had stated that foreign intelligence gathering had to be the purpose of the surveillance. And now, it only had to be a significant purpose of it. What this wording change meant varied depending on who you talked to, but a lot of people feared that it gave the government too much spying power.

Blue Chevigny

This is Congressman Bobby Scott, a Democrat from Virginia. He sits on the House Judiciary Committee and opposed the passage of the USA PATRIOT Act.

Blue Chevigny

Congressman Scott and others were afraid that the Justice Department would use the FISA court to get these easier secret FISA wiretaps and use them to spy on people who aren't terrorists or spies. But because none of their proceedings were public, nobody was sure how the FISA court was reading the word change. In August, a few members of Congress, most vocally Senator Patrick Leahy of Vermont, Chairman of the Senate's Committee on the Judiciary, decided to try to find out. He and other members of Congress wrote a letter to the FISA court, asking them for their take on the word change. And they got a reply. Ann Beeson of the ACLU tells the story.

Blue Chevigny

What the senators had uncovered was the biggest courtroom drama you never heard of. It went like this. Attorney General John Ashcroft had interpreted the USA PATRIOT Act language as broadly as possible. That is, he said that now, under the new wording, the FISA court should authorize wiretaps in cases where criminal investigation was the main purpose, not national security. But the FISA court judges disagreed with his interpretation of the PATRIOT Act, and for the first time in history issued an opinion which said no.

Blue Chevigny

The court cites 75 cases of abuse of the system. And to understand those abuses, remember that the original purpose of the FISA court was to prevent scenarios like this one. Let's say a criminal investigator thinks a guy is involved in drug activity, and he wants to do a wiretap on the guy, but he doesn't have enough evidence under the fourth amendment to do it through the criminal courts. So the criminal division guy calls up a friend, somebody in intelligence-- in the FBI for example-- and says, this guy is up to something and he might have ties to a foreign country anyway. Do me a favor and go to the FISA court and get them to authorize a wiretap.

To guard against that scenario, for 20 years the FISA court had put up what they called a wall. Regular criminal investigators and prosecutors couldn't go to foreign intelligence investigators and tell them who to tap. The 75 cases of abuse that the FISA court cited in its ruling were all instances where government officials had tried to breach that wall.

So the FISA court ruled against the Justice Department, and on the same day in August that they made their ruling public, they revealed something else. John Ashcroft and the Justice Department had not accepted the FISA court's ruling. There was an appeals process in the FISA statute, written in, in case of a major disagreement like this. But remember, there had never been a major disagreement before. The FISA court had never turned down a Justice Department request before. And so, for the first time ever, the FISA appeals court met. It's made up of three judges also convening in secret. Here's Ann Beeson.

Blue Chevigny

Sounds simple enough. But consider for a second, this is a court whose operations are completely secret as a matter of national security, a court that no outside lawyer has ever filed a brief with.

Blue Chevigny

The hearing was done, and the only oral argument the court heard was from the government. No one on the other side. Then the day after the secret hearing, Ann got a call from a woman identifying herself as a designated clerk of the FISA court, telling her the case wasn't over, giving her permission to submit the ACLU brief, and giving her an address for the court in a Justice Department building. Ann sent in their brief, and the court sent back an official letter, an order, saying they'd accepted it. She fished the order out of a stack of papers on her desk and showed it to me.

Blue Chevigny

She pointed to the top of the page.

Blue Chevigny

Two months went by. Then in November, on the 18th, the Court of Appeals issued its decision. It overturned the lower court and sided with the Justice Department's interpretation of the USA PATRIOT Act. The ACLU had, in essence, lost the case.

Blue Chevigny

Attorney General John Ashcroft, of course, sees things differently. This is from a press conference on the day of the appeals court decision.

Blue Chevigny

In his press conference, he didn't say much about the Constitutional questions raised by the decision, though he was asked. We wanted to hear more of the Justice Department's reasoning, so we decided to give them a call.

Blue Chevigny

This proved a lot more difficult than you'd think.

Blue Chevigny

It took two months of continuous phone calls. Finally an interview was set up with David Kris, a lawyer who worked on the Justice Department's brief before the FISA appeals court. We asked about the possibility that criminal investigators will start to label everyday Americans as threats to national security just to get a wiretap. And here's how he explained that it shouldn't be a big concern.

Blue Chevigny

David Kris made this point several times. He slowed down when he said it. What has changed, he said, is something different, that the intelligence side and the criminal side can share information about cases and potential targets more freely. In other words, the wall is down. Which is fine if you trust the government will do the right thing with this power, or dangerous if you don't.

The ACLU has tried to figure out if there's any way to appeal the decision, to the Supreme Court, for example. It's a constitutional question at stake, after all But they can only bring a case if they find someone who thinks they were unfairly wiretapped under FISA, and there's not much chance of that, since virtually everyone tapped under FISA will never know they were.

Ira Glass

Blue Chevigny, from New York City.

Ira Glass

Well, our program was produced today by Alex Blumberg and myself with Diane Cook, Wendy Dorr, Dave Kestenbaum, and Starlee Kine. Elizabeth Meister runs our website. Production help from Todd Bachmann and Jane Golombisky.

[ACKNOWLEDGEMENTS]

Music help from consigliere Sarah Vowell. If you'd like to buy a cassette of this or any of our programs, visit our website, where you can get tapes or you can also listen to our programs for free, www.thisamericanlife.org.

This American Life is distributed by Public Radio International. Funding for our show comes from the listeners of WBEZ Chicago. WBEZ management oversight by Torey Malatia, who keeps calling me at 3:00 in the morning to say:

Ira Glass

I'm Ira Glass, back next week with more stories of This American Life.

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