Terror Probe Feuds Revealed by Secret Court

In a rare glimpse into the inner workings of one of the nation’s most secretive courts, documents released Thursday show that the federal judges have voiced grave misgivings for years about the way the Justice Department has handled classified wiretaps and searches in terrorism cases.

The FBI gave false information in more than 75 requests for top-secret warrants brought in recent years before the special court, which hears cases related to international terrorism and espionage probes, the documents revealed. Known as the Foreign Intelligence Surveillance Act court, or FISA court, the panel reviews government requests to spy on suspected foreign agents or terrorists.

The special court was so concerned by Atty. Gen. John Ashcroft’s behind-the-scenes efforts to broaden the FBI’s spying abilities after the Sept. 11 terrorist attacks that in May it secretly ordered Ashcroft to scale back the regulations, the documents showed.

On Thursday, the Senate Judiciary Committee, which had asked the FISA court for access to the documents in July, released 55 pages to the public. Committee members had expressed concern about what some saw as a clampdown on information about the administration’s anti-terrorism campaign.

In one case, the documents said, former FBI Director Louis J. Freeh falsely certified to the court that the target of the warrant was not under criminal investigation, when in fact he was.

In another instance, information was improperly shared between criminal and intelligence investigations, despite claims by the FBI that the firewall between the two had been honored, the court said. And in another case, the FBI failed to disclose to the court that the bureau had a “previous relationship” with the target of a warrant, who had been interviewed by a criminal prosecutor.

On Thursday, the Justice Department appealed the order to scale back the regulations, marking the first time the department has initiated such an appeal of a ruling by the FISA court, which is so secretive that it meets in a windowless chamber deep inside the Justice Department, its operations heavily guarded.

“We think [the judges] got it wrong,” said a senior Justice Department official, adding that the error-riddled warrant requests occurred before Ashcroft took office and reforms have been instituted to correct the problem.

The department believes the court’s May ruling unnecessarily limits its ability to let prosecutors, FBI agents and intelligence operatives share information in rooting out international terrorists.

“As a practical matter, their opinion limits our ability to engage in the kind of coordination which we believe is both helpful and necessary to our ability to protect national security,” Justice Department spokeswoman Barbara Comstock said.

The tensions revealed in the newly released documents cut to the heart of the ongoing debate about how far the FBI and the Justice Department should be able to go in gathering intelligence in the fight against terrorism.

. FISA court Presiding Judge Colleen Kollar-Kotelly said that it was the first time in its 23-year history that the entire court has released an unclassified opinion.

Judges Were Hesitant

Initially, the judges indicated privately that they would not release the documents to Congress because it could compromise the separation of powers, according to a congressional official who asked not to be identified.

“We were all pretty surprised to get them,” the official said.

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, hailed the release of the documents as a “ray of sunshine for the judicial branch.”

Lashing out at “the administration’s lack of cooperation,” Leahy said the documents provide “a window on the process that will help us better understand how the laws are being implemented and how well they are working.”

The FISA court has approved thousands of requests over the years from the Justice Department allowing federal agents to conduct secret searches and surveillance of people in the United States who are suspected of having links to foreign agents or powers, often involving terrorism or espionage.

Requests are hardly ever denied, and the 11-member court noted in an unclassified opinion included in Thursday’s documents that such warrants are “highly intrusive.” In fact, the suspect is never notified that he is the target of a search or a surveillance.

After the Sept. 11 attacks, the Justice Department came to rely more heavily on the secret surveillances as a way of gathering intelligence on terrorism suspects, and Ashcroft convinced Congress to loosen the rules for such operations as part of the USA Patriot Act.

Intelligence-gathering no longer has to be the primary purpose for executing an intelligence warrant, but merely a purpose.

Ashcroft effectively reversed a trend that began in the mid-1990s, when then-Atty. Gen. Janet Reno erected a high firewall between intelligence-gathering investigations and criminal probes to guard against undue invasion of privacy. She frustrated federal investigators by ordering that intelligence operatives have virtually no contact with criminal prosecutors, who must meet higher legal standards to win approval of wiretaps and searches.

Ashcroft, in a plan presented to the FISA court in March, moved to eliminate that “bright line” by giving criminal prosecutors broad new powers to take part in intelligence operations.

“The attorney general seized authority that has not been granted to him by the Constitution or the Congress,” Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center, said Thursday.

The FISA court, in its May 17 ruling, appeared to agree. The justices said that the department went too far in loosening the regulations that govern intelligence-gathering, and they scaled back part of Ashcroft’s plan.

The court found that parts of Ashcroft’s plan “are NOT reasonably designed” to safeguard privacy rights.

The court said the plan could mute the intent of the law to gather information for foreign intelligence operations, not for criminal investigations.

The court’s hesitancy to endorse Ashcroft’s plan for broadened intelligence-gathering operations appeared rooted in a years-long series of run-ins with the FBI over the accuracy of the bureau’s warrant requests.

The court said in September 2000 that the FBI came forward to “confess error in some 75 FISA applications related to major terrorist attacks directed against the United States.” More errors turned up later.

Word of the FBI’s run-ins with the court over misleading warrant requests had leaked out publicly in recent months. Some FBI officials blame the tensions for creating a chilling effect that led the bureau not to seek a warrant in the summer of 2001 against suspected “20th hijacker” Zacarias Moussaoui, who was jailed in Minneapolis on an immigration violation.

But the full extent of the problem--and the fact that dozens of FBI warrant requests were found to contain errors--had never been disclosed before.

Those errors usually centered on misstatements or omissions of facts by the FBI in claiming that criminal prosecutors were not involved in intelligence-gathering operations, the court said in its May opinion.

The documents released Thursday did not cite specific cases by name.

The problem became so severe that the court convened a special session in November 2000 to consider “the troubling number of inaccurate FBI affidavits,” and one agent was barred from appearing before the FISA court to present warrant requests, the court said.

Justice Department officials have been investigating the false claims by FBI officials for more than a year, but “how these misrepresentations occurred remains unexplained to the court,” wrote U.S. District Judge Royce C. Lamberth, then the presiding judge of the FISA court, in the May 17 opinion.

Top officials of the Justice Department said they were gravely concerned about the FISA court’s decision to scale back Ashcroft’s March regulations.

Even though the secret decision was issued by the court as a whole in May, Justice lawyers spent months determining how to appeal, and finding a specific case to appeal, before filing the paperwork Thursday.

“I can’t overstate the delicacy of this, the difficulty of this, the significance of this,” said the senior Justice Department official. “We don’t want to tank the FISA program. We don’t want to mess up our relations with the FISA court.”

A Blow to Law Is Seen

Justice officials said the May ruling did not force them to stop conducting any particular investigations, but rather that it prevented them from implementing key provisions of the Patriot Act.

“It’s like we got nowhere with the [implementation of] the Patriot Act, and were not able to coordinate things like we wanted to and needed to,” the official said.

Justice Department officials also stressed that the 75 cases cited in the May ruling occurred before President Bush took office, and said that the problems were corrected by a succession of legal reforms within the department over the last two years.

They cited a speech given last year in which Lamberth credited Ashcroft for ensuring that all FISA applications were “well scrubbed” and free of inaccuracies that had plagued earlier applications. “The process is working,” Lamberth said in the speech.

“A lot of the old problems had been remedied,” Comstock said.