Court Widens Wiretapping in Terror Cases

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.

In August 2001, weeks before the attacks on the World Trade Center and the Pentagon, Moussaoui was taken into custody by FBI agents in Minnesota because of his strange behavior. He was taking lessons on how to fly a jumbo jet, but said he did not need to learn to land it.

But the Minneapolis agents were blocked from examining his laptop computer because they had no evidence he was a criminal. However, CIA agents in France had learned of his ties to suspected terrorists.

Had this information been fully shared among agents, the government might have obtained a FISA warrant that could have revealed key information before Sept. 11.

In a normal criminal probe, government investigators must have good evidence of wrongdoing before they can obtain a search warrant. The 4th Amendment says warrants should be issued only when there is “probable cause” to believe a crime is taking place.

In contrast, the FBI can obtain a wiretap warrant for “foreign intelligence surveillance” simply by showing the target is linked to a foreign power or an international terrorist group. The individual may be entirely innocent, but the government can obtain an order to tap his phone or secretly break in to his residence.

FBI agents can obtain these search warrants rather easily through the secret FISA court. In fact, legal experts said that until the ruling in May, the department had never been turned down on any of these requests.

At a news conference, Ashcroft stressed that the government was not being given a free hand to spy on ordinary Americans.

“We haven’t really changed the threshold” for undertaking a search, he said. Agents must still show that the target is tied to a foreign terrorist group.

Rather, “this will greatly enhance our ability to put the pieces together” to make better use of intelligence information, Ashcroft added.

Several civil liberties organizations filed friend-of-the-court briefs in the case, but they were not permitted to argue in court against U.S. Solicitor General Theodore B. Olson, who presented the government’s case. That is because when the government seeks a wiretap order under FISA, it is the only party in the case. And the same holds true for the review court.

Consequently, attorneys who challenged the government actions are not clear whether they have standing to file an appeal, said Beeson of the ACLU and Marc Rotenberg of the Electronic Privacy Information Center in Washington, one of the groups that filed a brief. That alone is troubling, said Rotenberg.

“It can’t be the case that a government search fundamentally escapes review by the highest court in the land,” Rotenberg said.

“Congress should not lose sight of the fact that when FISA was created there was an intent to assure some accountability” in the way intelligence surveillance was conducted, Rotenberg added. “It is too easy to view FISA as an exception to the 4th Amendment. Neither the courts or Congress have reached that result, but this decision gets very close to that.”

Joshua L. Dratel, a New York attorney who was the co-author of a friend-of-the-court brief filed by the National Assn. of Criminal Defense Lawyers, said he was very troubled by the ruling -- particularly that it seemed to ignore the May findings of the spy court.

“Having discovered that the fox had been eating chickens for the last 25 years, the court decided that the solution was to give the fox more authority over the chicken coop and to stop monitoring it,” said Dratel, who was the co-counsel for Wadih El-Hage, who is now serving a life sentence in the United States for helping plan the 1998 U.S. Embassy bombings in Tanzania and Kenya.

Dratel said that it would now be easier for the government to use the FISA court to obtain a judicial order to wiretap or search the offices of a businessman suspected of money-laundering if the case involved activity in the Middle East or South America or some other place that has “a terrorist penumbra.” Moreover, Dratel said that unless the person eventually was charged with a crime, he might never know that the search or the wiretap had been conducted.

Legal scholars were divided on the merits of the ruling. “I think the court got it right,” said Robert F. Turner, associate director of the Center for National Security Law at the University of Virginia. “The government is trying to protect our lives by inconveniencing us some,” said Turner, who was an attorney in the Defense and State departments during the Reagan administration.

But Eric M. Freedman, a constitutional law professor at Hofstra University Law School in Hempstead, N.Y., said the decision “was an abrogation of judicial responsibility to enforce the Bill of Rights.”

“This is an extraordinarily ominous moment for civil liberties in this country,” Freedman said.

“If we don’t believe in civil liberties in a time of crisis, how can we persuade other countries to do that?”

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Savage reported from Washington; Weinstein from Los Angeles.