By Dan Eggen and Susan Schmidt
Washington Post
Aug. 23, 2002
http://www.arizonarepublic.com/news/articles/0823secretcourt23.html
WASHINGTON - The secretive federal court that approves spying on terrorism suspects
has refused to give the Justice Department broad new powers in the war on terror,
saying the government had misused the law and misled the court dozens of times,
according to an extraordinary legal ruling released Thursday.
A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance
Act says that Justice and FBI officials supplied erroneous information to the
court in more than 75 applications for search warrants and wiretaps in the past
two years, including one signed by former FBI Director Louis Freeh.
Authorities also improperly shared classified intelligence information with law enforcement agents and prosecutors in New York on at least four occasions, the judges said.
Given such problems, the court found that proposed new procedures submitted by Attorney General John Ashcroft in March would have given prosecutors too much control over counterintelligence investigations and would have effectively allowed the government to misuse intelligence information in criminal cases, according to the ruling.
The dispute between the Justice Department and the court, which has raged behind closed doors until Thursday, 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 currently must seek the court's permission to give criminal prosecutors any information gathered by the FBI in an intelligence investigation. Ashcroft had proposed that criminal prosecutors be given routine access to such intelligence information and that they be allowed to direct intelligence investigations as well as criminal investigations.
The court agreed with some of the proposed rule changes. But Ashcroft filed an appeal Thursday over the rejected procedures that would constitute the first formal challenge to the 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 Thursday also provide a rare glimpse into the workings of the almost entirely secret court, composed of a rotating panel of federal judges from around the United States. Until Thursday, it 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 official said that the 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 errors.
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.
Bush administration officials and many leading lawmakers have complained since Sept. 11 that such limits hampered the ability of officials to investigate terror suspects, including hijack conspiracy defendant Zacarias Moussaoui.
The law requires agents to have probable cause to believe that the subject of the search is an agent of a foreign government 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 a FISA warrant to search his laptop computer and other belongings in the weeks before the Sept. 11 attacks because some officials believed that they could not adequately show the court Moussaoui's connection to a foreign terrorist group.