Secret Court Rebuffs Ashcroft (fwd)

[Heiko Recktenwald <uzs106@ibm.rhrz.uni-bonn.de>]

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Secret Court Rebuffs Ashcroft 
 
By Dan Eggen and Susan Schmidt
Washington Post Staff Writers
Friday, August 23, 2002; Page A01 

The secretive federal court that approves spying on terror suspects in the 
United States has refused to give the Justice Department broad new powers, 
saying the government had misused the law and misled the court dozens of 
times, according to an extraordinary legal ruling released yesterday.

A May 17 opinion by the court that oversees the Foreign Intelligence 
Surveillance Act (FISA) alleges that Justice Department and FBI officials 
supplied erroneous information to the court in more than 75 applications for 
search warrants and wiretaps, including one signed by then-FBI Director Louis 
J. Freeh.

Authorities also improperly shared intelligence information with agents and 
prosecutors handling criminal cases in New York on at least four occasions, 
the judges said.

The department discovered the misrepresentations and reported them to the 
FISA court beginning in 2000.

Given such problems, the court found that new procedures proposed by Attorney 
General John D. Ashcroft in March would have given prosecutors too much 
control over counterintelligence investigations and would have effectively 
allowed the government to misuse intelligence information for criminal cases, 
according to the ruling.

The dispute between the Justice Department and the FISA court, which has 
raged behind closed doors until yesterday, strikes at the heart of Ashcroft's 
attempts since Sept. 11 to allow investigators in terrorism and espionage to 
share more information with criminal investigators.

Generally, the Justice Department must seek the FISA court's permission to 
give prosecutors of criminal cases any information gathered by the FBI in an 
intelligence investigation. Ashcroft had proposed that criminal-case 
prosecutors be given routine access to such intelligence information, and 
that they be allowed to direct intelligence investigations as well as 
criminal investigations.

The FISA court agreed with other proposed rule changes. But Ashcroft filed an 
appeal yesterday over the rejected procedures that would constitute the first 
formal challenge to the FISA court in its 23-year history, officials said.

"We believe the court's action unnecessarily narrowed the Patriot Act and 
limited our ability to fully utilize the authority Congress gave us," the 
Justice Department said in a statement.

The documents released yesterday also provide a rare glimpse into the 
workings of the almost entirely secret FISA court, composed of a rotating 
panel of federal judges from around the United States and, until yesterday, 
had never jointly approved the release of one of its opinions. Ironically, 
the Justice Department itself had opposed the release.

Stewart Baker, former general counsel of the National Security Agency, called 
the opinion a "a public rebuke.

"The message is you need better quality control," Baker said. "The judges 
want to ensure they have information they can rely on implicitly."

A senior Justice Department official said that the FISA court has not 
curtailed any investigations that involved misrepresented or erroneous 
information, nor has any court suppressed evidence in any related criminal 
case. He said that many of the misrepresentations were simply repetitions of 
earlier errors, because wiretap warrants must be renewed every 90 days. The 
FISA court approves about 1,000 warrants a year.

Enacted in the wake of the domestic spying scandals of the Nixon era, the 
FISA statute created a secret process and secret court to review requests to 
wiretap phones and conduct searches aimed at spies, terrorists and other U.S. 
enemies.

FISA warrants have been primarily aimed at intelligence-gathering rather than 
investigating crimes. But Bush administration officials and many leading 
lawmakers have complained since Sept. 11 that such limits hampered the 
ability of officials to investigate suspected terrorists, including alleged 
hijacking conspirator Zacarias Moussaoui.

The law requires agents to be able to show probable cause that the subject of 
the search is an agent of a foreign government or terrorist group, and 
authorizes strict limits on distribution of information because the standards 
for obtaining FISA warrants are much lower than for traditional criminal 
warrants.

In Moussaoui's case, the FBI did not seek an FISA warrant to search his 
laptop computer and other belongings in the weeks prior to the Sept. 11 
attacks because some officials believed that they could not adequately show 
the court Moussaoui's connection to a foreign terrorist group.

The USA Patriot Act, a set of anti-terrorism measures passed last fall, 
softened the standards for obtaining intelligence warrants, requiring that 
foreign intelligence be a significant, rather than primary, purpose of the 
investigation. The FISA court said in its ruling that the new law was not 
relevant to its decision.

Despite its rebuke, the court left the door open for a possible solution, 
noting that its decision was based on the existing FISA statute and that 
lawmakers were free to update the law if they wished.

Members of the Senate Judiciary Committee have indicated their willingness to 
enact such reforms but have complained about resistance from Ashcroft. 
Chairman Patrick J. Leahy (D-Vt.) said yesterday's release was a "ray of 
sunshine" compared to a "lack of cooperation" from the Bush administration.

Sen. Charles E. Grassley (R-Iowa), another committee member, said the legal 
opinion will "help us determine what's wrong with the FISA process, including 
what went wrong in the Zacarias Moussaoui case. The stakes couldn't be higher 
for our national security at home and abroad."

The ruling, signed by the court's previous chief, U.S. District Judge Royce 
C. Lamberth, was released by the new presiding judge, U.S. District Judge 
Colleen Kollar-Kotelly.

FBI and Justice Department officials have said that the fear of being 
rejected by the FISA court, complicated by disputes such as those revealed 
yesterday, has at times caused both FBI and Justice officials to take a 
cautious approach to intelligence warrants.

Until the current dispute, the FISA court had approved all but one 
application sought by the government since the court's inception. Civil 
libertarians claim that record shows that the court is a rubber stamp for the 
government; proponents of stronger law enforcement say the record reveals a 
timid bureaucracy only willing to seek warrants on sure winners.

The opinion itself -- and the court's unprecedented decision to release it -- 
suggest that relations between the court and officials at the Justice 
Department and the FBI have frayed badly.

FISA applications are voluminous documents, containing boilerplate language 
as well as details specific to each circumstance. The judges did not say the 
misrepresentations were intended to mislead the court, but said that in 
addition to erroneous statements, important facts have been omitted from some 
FISA applications.

In one case, the FISA judges were so angered by inaccuracies in affidavits 
submitted by FBI agent Michael Resnick that they barred him from ever 
appearing before the court, according to the ruling and government sources.

Referring to "the troubling number of inaccurate FBI affidavits in so many 
FISA applications," the court said in its opinion: "In virtually every 
instance, the government's misstatements and omissions in FISA applications 
and violations of the Court's orders involved information sharing and 
unauthorized disseminations to criminal investigators and prosecutors."

The judges were also clearly perturbed at a lack of answers about the 
problems from the Justice Department, which is still conducting an internal 
investigation into the lapses.

"How these misrepresentations occurred remains unexplained to the court," the 
opinion said.


© 2002 The Washington Post Company

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