The Supreme Court this week declined to hear an appeal by two convicted spies challenging the government's ability to obtain wiretaps and search warrants under the Foreign Intelligence Surveillance Act (FISA) on the basis of secret evidence.
Attorneys for Theresa Squillacote, a former Pentagon lawyer, and her husband, Kurt Stand, a labor organizer, argued that prosecutors should have been forced to show defense attorneys evidence underlying a FISA wiretap that remained on a telephone at the couple's home for 550 days.
FISA is overseen by a secret federal court created over two decades ago to police the domestic collection of intelligence against foreign agents, including U.S. citizens. The act creating the court was passed following disclosure by Congress in the mid-1970s of unlawful domestic spying against Americans by U.S. intelligence agencies.
The act requires prosecutors to establish "probable cause" that an American is a foreign agent in order to obtain a wiretap or search warrant, and allows the defense to challenge the legality of such wiretaps or warrants.
But the lower courts have ruled that evidence used by the government to obtain a FISA warrant or wiretap can remain secret. "That's the great Kafkaesque irony of the statute," said Lawrence S. Robbins of Mayer, Brown & Platt, one of the attorneys who filed the latest appeal. "We're allowed to challenge [the evidence], but we're not allowed to know what it is."
While Squillacote and Stand were convicted in 1998 of spying for East Germany, Robbins said, East Germany no longer existed when the government obtained a FISA warrant and began intercepting their communications. Robbins asked, what foreign power were they agents for?
He's been waiting for years to see the evidence -- and now has to wait some more after the Supreme Court announced Monday, without explanation, that it had decided against hearing the appeal.
"So far," Robbins said, "I keep losing -- without ever getting in the game."
CACHERIS CONSULT: Plato Cacheris, the attorney who defended CIA spy Aldrich H. Ames and is now representing accused FBI spy Robert P. Hanssen, is among a group of American and British lawyers reviewing the conviction of a Libyan intelligence operative by a three-judge Scottish panel earlier this year for the 1988 bombing of Pan Am Flight 103.
Cacheris says he and the other lawyers have been retained by a British solicitor representing Abdel Basset Ali Megrahi. Their wisdom on possible grounds for appeal will be passed to Megrahi's Scottish defense team.
"I'm about three steps removed," Cacheris said.
DISPUTED IMAGE: Government officials are still at odds with outside analysts over what to make of a commercial satellite image taken on April 9 of the damaged Navy EP-3 forced to land at a Chinese air base after a collision with a Chinese fighter. The image appeared to show that a large portion of the right rear fuselage had been disassembled.
Since later images produced by both U.S. spy satellites and Space Imaging Inc.'s Ikonos satellite show the fuselage intact, one government official speculated publicly that Space Imaging may have mistakenly manipulated the photo to produce an illusion that a chunk of the fuselage was gone.
John Pike, a defense and intelligence analyst who is director of Global Security.org, doesn't believe that Space Imaging monkeyed around with the picture. The missing "chunk" of the fuselage might have been an "optical illusion," or possibly a tarp draped over that part of the plane.
But whatever the explanation, Pike said, Space Imaging's ability to produce a series of four pictures of the plane in a denied area represents "a significant turning point in the history of news gathering -- that you would have this independent source of information for an event like this."