Terror-war wiretaps get tangled in new scrutiny of FBI

Court ruling sets back attorney general's attempt to widen surveillance powers.

A major campaign in the war on terrorism involves lawmakers, lawyers, and jurists as combatants arrayed along a battle line marked by minute readings of law. Until now, their home front struggle has been mostly clandestine. But recently it's broken out onto open ground.

A normally secretive federal court dealing with intelligence matters has openly criticized the US Justice Department for overstepping its bounds in ferreting out terrorists. And in Congress, prominent Republicans as well as Democrats are butting heads with Attorney General John Ashcroft over lawmakers' oversight role in the effort to fight terrorism.

The essential issue is the degree to which the US Justice Department pursue terrorist suspects using court-approved searches and wiretaps. To investigate them as part of an intelligence operation is one thing; going after them as criminal suspects is quite another.

This may seem like arguing over legalistic angels on the head of an irrelevant pin. but there is an important difference involving the "probable cause" necessary to charge someone with a crime. It is generally more difficult to get court approval to use wiretaps in criminal prosecutions than it is in an intelligence probe.

The secret Foreign Intelligence Surveillance Court (established in 1978 in the wake of abuses by the Nixon administration) typically settles such questions.

The Justice Department asserts that the USA Patriot Act, passed after Sept. 11, widened the powers to investigate terrorism, including wiretaps and sharing information between intelligence investigators and criminal prosecutors.

Not so, declared the intelligence surveillance court in a ruling made public last week.

Citing "the troubling number of inaccurate FBI affidavits in so many [Foreign Intelligence Surveillance Act] applications," the court said, "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."

Justice Department lawyers quickly appealed the ruling to the Foreign Intelligence Surveillance Court of Review – the next judicial step up made up of a three-member panel of semiretired senior federal judges appointed by Chief Justice William Rehnquist.

In its appeal seeking more law enforcement powers (including wiretaps and searches), the Justice Department asserts that in passing the USA Patriot Act, lawmakers agreed that "the country and its people can no longer afford a fragmented, blinkered, compartmentalized response to international terrorism and espionage."

Civil Liberties advocates were quick to applaud the court's ruling.

"When the government is investigating crime, it must be able to show a judge strong evidence of wrongdoing before it is allowed to search a home or record telephone conversations," says Gregory Nojeim, chief legislative counsel of the American Civil Liberties Union in Washington.

Some important lawmakers agree.

"What ... the court properly rejected, was the idea that absent probable cause that a crime has been committed, a law enforcement official could direct our nation's spies to conduct surveillance on someone they claim is a criminal suspect," Rep. John Conyers (D) of Michigan, senior Democrat on the House Judiciary Committee, wrote to Ashcroft.

Citing their power to oversee Justice Department conduct, Mr. Conyers and Rep. James Sensenbrenner (R) of Wisconsin, chairman of the committee, sent Ashcroft a list of 50 questions about implementation of the USA Patriot Act. That was more than two months ago; Ashcroft has yet to reply fully.

Mr. Sensenbrenner said last week he will "start blowing a fuse" if answers are not provided soon, perhaps issuing the attorney general a subpoena.

Senators of both parties have expressed frustration as well, including Judiciary Committee chairman Patrick Leahy (D) of Vermont and Republican committee members Arlen Specter of Pennsylvania and Charles Grassley of Iowa. They have complained that unclassified information from the intelligence court was being withheld.

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