INTELLIGENT INTELLIGENCE SAFEGUARDS

The Justice Department has appealed the recent decision by the Foreign Intelligence Surveillence Court, resulting in the first ever review by the U.S. Foreign Intelligence Surveillience Court of Review. That ruling slammed the FBI for filing 75 misleading applications to the secret court. It turns out that the major fibbing being done by the FBI was not in the alleged conduct of the suspect, but instead the degree to which the intelligence information was being shared with criminal prosecutors. In other words, the FBI violated the terms of the 1978 compromise - lower burdens for intelligence gathering in return for a guarentee that information obtained through those warrants not be used in ordinary criminal procedings. The insurance of this compromise was a strict ban on intelligence specialists sharing information gained through such warrants with prosecutors. In the context of a counter-terror prosecution, however, the neat distinction between "intelligence investigation" and "criminal investigation" breaks down. The mishaps of 9/11 show us that it is essential for any and all information to be shared. On the other hand, safeguards have to be in place to make sure that FISA is not abused as an end-run around the Fourth Amendment. One place to start would be with a revision of the Patriot Act that delineates what is and what is not a counter-terror prosecution.