Chief Justice Warren Burger is expected to name two Washington jurists today as the chief judges of the new national court being set up to approve warrants for national security wiretaps in the United States.
U.S. District Judge George L. Hart Jr., 73, will be head of the Foreign Intelligence Surveillance Court set up under the wiretap act Congress passed last year, according to sources. He will be one of a panel of seven district court judges from around the country who will take turns ruling on electronic surveillance requests by the FBI and the National Security Agency.
George E. MacKinnon, a member of the U.S. Circuit Court of Appeals here, is expected to be appointed head of the three-member panel that will review applications denied by the special lower court.
Hart, a senior judge, and MacKinnon are considered to be pro-government judges who have ruled favorably for the intelligence community in the past.
The names of the other members of the special court could not be learned yesterday, although several members of the court had lunch with Attorney General Griffin B. Bell in anticipation of today's expected announcement.
Jerry Berman, legislative counsel for the American Civil Liberties Union in Washington, said yesterday, "You can't say conservative judges won't protect civil liberties, but their appointment may raise questions about this court being a rubber-stamp for the intelligence community."
Berman also said the final makeup of the new court could affect the current debate on a charter for the intelligence agencies. This is because the Carter administration has proposed that spying on Americans overseas be permitted. Warrants for such activity probably would be sought from the new special court.
Other sources said Burger's remaining appointments are expected to make the curt more balanced over the philosophical spectrum. They also noted that neither Hart nor MacKinnon is expected to have an undue amount of influence because the district judges will rotate, and few appeals are expected.
However, Hart is expected to be the judge ruling on emergency warrant requests because his court is in the area.
The wiretap law grew out of post-Watergate revelations about abuses by the intelligence agencies in spying on innocent Americans. The new law requires that there be "probable cause" of criminal conduct before American citizens are targeted for surveillance by U.S. counter intelligence specialists monitoring the activities of suspected foreign agents.
The law was backed by civil liberties groups and the intelligence community and is considered precedentsetting because it's the first time Congress has put statutory limits on the president's long-asserted powers to protect national security.
Foreign government offices such as embassies are common targets of telephone or microphone surveillance by the FBI. Individuals are targeted less frequently.
The FBI conducted about 75 national security surveillances of all types last year. NSA intercepts airborne communications such as embassy cable traffic to foreign capitals.
During the first three months of the new court, all urgent warrantless surveilances will have to approved by one of the judges. The warrants usually are for 90 days - and renewable - on individuals and one year on embassies.
Several members of the new court received briefings yesterday about the special security measures used to protect the warrant process from foreign spies.
Because federal courts are not considered sufficiently secure, the new court will hold hearings in a specially equipped room. This is likely to be a sound-proof, vault-like room on the sixth floor of the Justice Department.