THE TOP-SECRET Foreign Intelligence Surveillance Court is not exactly the ACLU. Meeting in a guarded, locked room on the highest floor of the Justice Department, this is a court that in 25 years has never met a wiretap it didn't like. Its judges routinely consider the most sensitive national-security questions and have signed off on more than 10,000 warrants.
So when this secret court publicly kicks John Ashcroft in the teeth, it's clear something is going on. It's even more clear something is going on when, just a few days later, another unanimous panel of federal judges — this an appeals court in Cincinnati — slams the Ashcroft Justice Department's secret deportation hearings: “Democracies die behind closed doors,” writes Judge Damon Keith for the 6th U.S. Circuit Court of Appeals.
What's going on — with the anniversary of September 11 just days away — is that Ashcroft's entire post-attack legal strategy, a strategy built on broad domestic surveillance and broader secrecy, is collapsing of its own extremity. It is no exaggeration to say that the nation's federal judges — many of them appointed by Reagan and Bush I — are now in open rebellion at the measures embraced by the current Bush administration, measures that these judges perceive as a naked power grab by the executive branch.
Last week's extraordinary ruling by the Foreign Intelligence Surveillance Court is instructive. The court was set up in 1978, in the aftermath of Watergate and the revelations of FBI abuses, to make sure that the kind of raw information needed for foreign intelligence would not be abused in criminal investigations or politics. In fact, the court has not once rejected a national-security wiretap application and has, case by case, allowed foreign-surveillance information to be shared with prosecutors.
But when the Bush administration asserted that the USA PATRIOT Act allows a wholesale blurring of the line, with criminal investigators directing “national security” investigations, the judges went ballistic — revealing 75 recent cases in which FBI agents “misled” the court, “a troubling number of inaccurate FBI affidavits” and repeated “violation of the Court's orders.” The judges' point: Ashcroft and the FBI are not to be trusted with new power when they have abused the power they already had. The policies proposed by Bush “are not reasonably designed” to protect the privacy of law-abiding citizens, the court found.
Ashcroft spokeswoman Barbara Comstock made much of the fact that these documented abuses happened on Bill Clinton's watch, but that is precisely the judges' point: The abuse of power transcends particular administrations. So often have the FBI and Justice Department lied in order to stretch the limits of legal surveillance that the court now refuses to accept applications from the FBI agent in charge of Hamas.
AND BLUNT AS THAT REBUKE BY THE surveillance court was, it was a love letter compared to the reception the administration's secret deportation hearings received from that Cincinnati appeals court. Last year the INS began deportation hearings against Rabih Haddad, head of a Muslim charity whose assets were frozen after September 11. Attorney General Ashcroft had asserted the unilateral right to close Haddad's deportation hearings to press and public — an assertion challenged by Detroit newspapers and Representative John Conyers (D-Michigan).
This week's ruling by the 6th Circuit panel could not have been more unambiguous, with the judges' own sense of urgency and outrage clear from the speed with which the ruling was issued — just three weeks after argument. “The executive branch seeks to uproot people's lives, outside the public eye and behind a closed door,” wrote Judge Keith. But “when government begins closing doors, it selectively controls information that rightly belongs to the people. Selective information is misinformation.”
In the face of resistance from courts nationwide, Ashcroft's homeland-security strategies are unraveling so fast that you need a scorecard to keep up. An even broader case on secret immigration proceedings is on the federal appellate docket next month in Philadelphia, where a district judge ordered all such proceedings nationwide opened to the public in the absence of a good reason for secrecy. It's hard to avoid the conclusion that far from being a “wartime consigliere,” Ashcroft has turned out to be a colossal failure, even on the administration's own terms, leading the White House down a succession of blind alleys. Congress, which until now rolled over for the administration's most draconian proposals, is beginning to ask questions. Congressman James Sensenbrenner (R-Wisconsin), the conservative law-and-order chair of the House Judiciary Committee, says he is ready to “start blowing a fuse” over the administration's addiction to secrecy and obsession with restoring the imperial executive. The anniversary of September 11 may be approaching, but the post-attack political honeymoon may at last be over.