Night Courts

The law, lawyers, and the court.
Aug. 24 1996 3:30 AM

Night Courts

Does the U.S. really need its new secret tribunal?

It's a courtroom so secure and austere it wouldn't look out of place in Mission: Impossible. Located on the sixth floor of the Justice Department's headquarters in Washington, D.C., its double doors swing shut and seal themselves to the wall when a button nearby is depressed; an oddly textured ceiling looms overhead. Outside its doors, the seals of intelligence agencies adorn the walls.

Its judge doesn't sit behind the bench, raised above plaintiffs and defendants to symbolize his authority. Instead, he joins the witnesses and lawyers from the intelligence agencies and the Justice Department at a single conference table. No defense attorneys ever join these proceedings.

It took Congress more than 200 years to establish this secret court--the Foreign Intelligence Surveillance Act Court--and less than 20 years to craft a second in its mold. The new tribunal--a k a the "removal court"--was created in April as part of the Anti-Terrorism and Effective Death Penalty Act of 1996, with the goal of easing the deportation of legal aliens whom the government suspects of materially supporting terrorist groups, but who have committed no crimes.

The creation of this super-secret court (which is likely to share FISA Court space) was largely ignored in the debate over the counter-terrorism bill and underreported by the press. The government claims that it needs the removal court to protect national security in sensitive deportation cases against suspected alien terrorists. It argues that publicly disclosing key evidence, as normal courts require, can expose and endanger its intelligence sources, and that the unspeakable alternative is to allow suspected terrorists to remain in the country.

These two covert courts depart from America's open legal culture, and endow the judicial branch with a level of secrecy more typical of the executive than the courts. Justice officials bristle at the charge that the secret courts also carve out a de facto national-security exemption to both the Fourth Amendment's prohibition of warrantless surveillance and the Fifth Amendment's guarantees of due process.

That's why civil-liberties activists are crying foul at the new venue, saying that the only thing the removal court will remove is constitutional protections for aliens who engage in politically unpopular speech.

The mechanics of the new stealth court are simple: Government attorneys will present classified evidence in secret to a removal-court judge, one of five federal district judges serving on the court at any one time. If convinced that a proposed deportee is a terrorist, the judge will authorize the Justice Department to initiate deportation proceedings against the alien in a district court, where it will introduce as much secret evidence as it sees fit. The defendant will not know he has been targeted for deportation during removal-court proceedings, and when the case reaches the district court, he will see only a sketchy summary of the evidence against him. The district court then will decide whether the alien should be deported.

The Justice Department insists that removal-court procedures will be invoked only in extreme cases where national security would be damaged by the public disclosure of deportation evidence. But modifying judicial processes to accommodate the executive branch risks upsetting the traditional role of the courts as a check on executive power.

Civil libertarians worry that the trend toward secret courts begs for abuse by intelligence agencies because judges seem incapable of turning government requests down. Indeed, ever since the FISA Court was established in 1978 to approve secret warrants for surveillance of suspected spies, Justice has won approval for all its 8,827 surveillance requests. (FISA hearings, to cite one example, approved the surveillance used in the Sheik Omar Abdel Rahman investigation.) The appeals court, the FISA Court of Review, has never even had to convene. Perhaps the cloak-and-dagger ambience and absence of an advocate for the surveillance target persuade otherwise skeptical judges to give credence to government security claims. (Whatever FISA's faults, it's better than the previous federal wiretapping policy that permitted the attorney general to authorize national-security wiretaps with no judicial review.)

Are the secret courts constitutional? Probably. A host of legally significant distinctions separates aliens from citizens and national-security investigations from law-enforcement probes. The Supreme Court has never ruled on FISA, and it did not overturn a McCarthy-era statute which, like the removal court, was used to deport noncriminal aliens based on their political affiliations.

But these legal arguments are pedantries to many Arabs and Irish residing in the United States who fear they will be unjustly targeted under the new statute. And they don't calm civil libertarians, who fear the FISA Court is a mere rubber stamp for executive power.

"Government lawyers might not lie about the facts," says Kate Martin of the Center for National Security Studies. "But they draft the applications in a way to say that these facts meet the requirements, and by the time the application reaches the court, it is unlikely that the court really gets to notice deficiencies."

Officials at the Justice Department and FISA Court deny that the latter is a rubber stamp, attributing Justice's winning percentage to rigorous internal review that weeds out bad applications before they're filed. That's how presiding FISA Judge Royce Lamberth feels. "There might be a concern that the Justice Department has been too conservative in what they are presenting to the court if we're approving every one," he says.

But the public doesn't have many independent guarantees that the courts are applying tough scrutiny to the government's applications. Secrecy prevents open investigation of the courts' methods and standards; there is a paucity of serious journalistic coverage of the courts; and congressional oversight of the courts is limited to the review (in closed session) of classified reports. The only public indication that FISA plays fair comes from federal courts. In their review of several FISA applications in the context of criminal cases, they have yet to indicate that a FISA warrant was improperly granted.

"I understand that it's hard for people who don't see the process," Deputy Attorney General Jamie Gorelick said of FISA in 1994. "We're not at liberty to make the kind of disclosures that I agree would make the public more comfortable."

Secret courts require great faith that the Justice Department--and future Justice Departments--will act with integrity. In the absence of more openness, nobody outside the national-security establishment will know how much freedom the secret court structures really cost.

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