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Court Widens Wiretapping in Terror Cases

Panel lowers the 'wall' between intelligence agencies and the FBI. Ashcroft lauds the ruling, but some fear a loss of civil liberties.

November 19, 2002|David G. Savage and Henry Weinstein | Times Staff Writers

WASHINGTON — Atty. Gen. John Ashcroft and the FBI have broad power to wiretap the phones and secretly search the computers and homes of individuals who can be linked to foreign terrorists, a special spy review court ruled Monday.

Proclaiming a major victory in the war on terrorism, Ashcroft said the decision "revolutionizes our ability to investigate and prosecute terrorists" because it permits criminal investigators and intelligence agents to work together and to share information.

Ann Beeson, who heads the American Civil Liberties Union's Technology and Liberty program, said she was "deeply disappointed with the decision, which suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants." Other lawyers were uncertain whether the case could be appealed to the U.S. Supreme Court.

Until now, the government has been told to maintain a "wall" between its spying on foreign agents and its investigation of ordinary criminals.

In Monday's opinion, the Foreign Intelligence Surveillance Court of Review cast aside that concept. "There is simply no basis [in law] to limit criminal prosecutors' ability to advise FBI intelligence officials" on undertaking searches or sharing the results -- and vice versa, the review court said.

In addition, as a policy matter, the court said, "counterintelligence brings to bear both classic criminal investigation techniques as well as less focused intelligence-gathering. Indeed, effective counterintelligence, we have learned, requires the wholehearted cooperation of all the government's personnel who can be brought to the task. A standard which punishes such cooperation could well be thought dangerous to national security."

The court's three federal appeals court judges were appointed by Chief Justice William H. Rehnquist with the sole mission to review rulings from the Foreign Intelligence Surveillance Court, which was created in 1978 to oversee particularly sensitive law-enforcement activities, including wiretaps and other forms of surveillance, against suspected spies, terrorists and foreign agents.

All three judges on the review court -- Ralph B. Guy of the 6th Circuit in Cincinnati, Edward Leavy of the 9th Circuit in San Francisco and Laurence H. Silberman of the D.C. Circuit -- were originally named to the federal bench by President Reagan.

In May, the seven-member Foreign Intelligence Surveillance Court ruled that Ashcroft was improperly trying to broaden the FBI's spying abilities. His actions were based on the USA Patriot Act, passed in the aftermath of the Sept. 11 terrorist attacks, which appeared to lower the wall between intelligence gathering and criminal investigations.

That decision, made public in August by the Senate Judiciary Committee, which had been pushing for information about the secret court, contained blistering criticism of the FBI and the Justice Department. The decision accused the FBI of misleading the FISA court in 75 cases, all during the tenure of FBI Director Louis J. Freeh.

The spy court spurned a request from the Justice Department to permit broader cooperation between criminal prosecutors and counterintelligence investigators, saying the request was "not reasonably designed" to safeguard the privacy of Americans.

Monday's ruling reverses that decision and upholds Ashcroft's initiative.

In response, Ashcroft ordered an immediate stepped-up use of "the powerful tools of foreign intelligence surveillance."

Officials said the ruling allows the CIA and the FBI to work together and share information on potential terrorists. However, they also stressed that there would be continued limits on the government's power.

The expanded wiretap power applies only to cases involving "serious foreign threats to national security," not to "ordinary crimes," the review court said.

The Cold War-era division between intelligence-gathering and criminal investigation grew from much-publicized abuses of the government's spying power under Presidents Kennedy, Johnson and Nixon. Civil rights leaders, including the Rev. Martin Luther King Jr., and Vietnam War protesters were spied upon in the guise of protecting national security.

In reaction, Congress passed the Foreign Intelligence Surveillance Act in 1978 to limit the government's power to wiretap and break into homes.

But after Sept. 11, the wall between criminal investigation and intelligence-gathering was faulted as outdated and dangerous. The FBI and the CIA were accused of failing to "connect the dots" in a way that might have prevented a terrorist group from carrying out an attack in the United States.

For example, an FBI agent in Phoenix expressed concern about Middle Eastern men taking flight lessons, yet this information was not shared with the CIA, which had learned of Al Qaeda's plans to hijack planes.

The case of Zacarias Moussaoui, the accused 20th hijacker, also illustrates the gaps in the previous policy.

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