U.S. Expands Clandestine Surveillance Operations
WASHINGTON — The Justice Department has stepped up use of a secretive process that enables the attorney general to personally authorize electronic surveillance and physical searches of suspected terrorists, spies and other national-security threats without immediate court oversight.
Atty. Gen. John Ashcroft told the Senate Judiciary Committee on Tuesday he has authorized more than 170 such emergency searches since the Sept. 11 attacks -- more than triple the 47 emergency searches that have been authorized by other attorneys general in the last 20 years.
A 1978 law, the Foreign Intelligence Surveillance Act, enables the FBI and other investigators to conduct intelligence operations under the supervision of a secret federal tribunal known as the Foreign Intelligence Surveillance Court. Over the years, the number of such FISA applications has grown -- and civil liberties' groups and defense lawyers have complained that the law has become a tool to dilute suspects' constitutional rights.
Now, Justice Department officials are pushing the law's limits even further. Since the Sept. 11 attacks, officials have seized on a provision that allows them to launch emergency searches signed only by the attorney general. The department must still persuade the secret court that the search is justified -- but officials have 72 hours from the time the search is launched, and such requests are almost always granted.
Ashcroft's tally was more fuel for critics of the law who contend that it already operates in the shadows.
"That is a startling increase," said Timothy Edgar, a legislative counsel for the ACLU.
Edgar and others are concerned that law-enforcement officials are pursuing run-of-the-mill criminal cases under the guise of national security. The trouble, they say, is that defendants' customary 4th Amendment rights against unreasonable searches don't apply in FISA cases. Others point to the fact that the number of search warrants obtained by federal investigators in intelligence cases in recent years has started to outstrip the number in criminal cases.
The process "is getting attenuated from any kind of effective judicial oversight," said Joshua Dratel, a New York lawyer who helped represent the National Assn. of Criminal Defense Lawyers in a challenge to FISA last year. "The question now becomes, 'How much can a court tolerate before it reins this in?' "
