Administration Defends Secret Searches in Terror War

A Bush administration lawyer defended the government’s new policy of allowing its law enforcement investigators to press for secret searches of suspected foreign agents, saying Tuesday that this coordinated approach is needed in the war on terrorism.

“What is at stake is nothing less than our ability to protect this country from foreign spies and terrorists,” David Kris, an associate deputy attorney general, told the Senate Judiciary Committee. “We need all of our best people, intelligence and law enforcement alike, working together to neutralize the threat.”

While coordination sounds unremarkable, the policy of merging law enforcement and foreign intelligence-gathering has provoked much dispute in Washington, most of it behind closed doors within the Justice Department.

On Tuesday, Senate Democrats held a public hearing to voice their concern over what they say is a growing abuse of the law by Atty. Gen. John Ashcroft.

Sen. Patrick J. Leahy (D-Vt.) said the expanded search policy raises the specter of a return of secret buggings and break-ins by the FBI.

“We wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did not intend to obliterate the distinction between the two, and we did not do so,” said Leahy, the committee’s chairman. “This means they could secretly investigate any Americans and at any time they want.”

Sen. Dianne Feinstein (D-Calif.) said she shared that concern.

Last year, when Congress passed the USA Patriot Act, lawmakers sought “to lower the bar slightly” for obtaining wiretaps of foreign suspects, she said.

“In my view, there has been a skewing of what we set up,” Feinstein said.

Kris disagreed and said the recent changes in the search policy were likely to be “quite modest” in their effect.

The dispute centers on the Foreign Intelligence Surveillance Act, or FISA, a Cold War-era law that some say has become outdated in the war on terrorism.

Congress passed the measure in 1978 for two purposes.

First, it was intended to allow the government to search and wiretap Soviet spies or other foreign agents operating in the United States. This process had to be kept secret; on occasion, suspected spies were employees of the FBI or the CIA.

Second, lawmakers sought to prevent the government from using national security as a guise for spying on Americans. In the mid-1970s, it was revealed that the Nixon administration and the FBI had spied on thousands of Vietnam War protesters and civil rights activists, claiming that they were threats to national security.

The law created a seven-judge court within the Justice Department. The court, composed of U.S. district court judges, is charged with reviewing requests for national security wiretaps or searches.

If the FBI had evidence that a person was an “agent of a foreign power” or a member of “a group engaged in international terrorism,” it could obtain authority to wiretap that person for “the purpose ... of obtaining foreign intelligence information.”

Afterward, the evidence could be used to prosecute the individual; for example, suspected spies could be charged with espionage.

But at the start, the purpose of the search was to gather intelligence, not to build a criminal case.

The Constitution sets a high barrier before the government can undertake a search in criminal cases. The 4th Amendment says the government must have “probable cause” of criminal wrongdoing before a judge can issue a search warrant. This constitutional rule protects the privacy of Americans from official searches and seizures.

But this strict privacy standard does not apply in FISA cases. If the FBI can show that a person is linked to a “foreign power” or terrorist group, its agents can wiretap him, even if they have no evidence of wrongdoing.

Civil libertarians have feared that if the FBI can expand its use of FISA, agents could do an end run around the 4th Amendment and subject innocent people to bugging and spying.

In May, the FISA court expressed similar concerns in a ruling that rebuked Ashcroft for having gone too far in merging domestic crime-fighting with foreign intelligence-gathering.

The judges said they needed to maintain the “wall” between the two.

“This Court is the arbiter of FISA’s terms and requirements,” they said in the May 17 opinion. Ashcroft’s new policy “allows FISA to be used primarily for a law enforcement purpose,” and it would “authorize criminal prosecutors to advise FBI intelligence officials on the initiation of FISA’s intrusive seizures,” they said.

Administration officials disagreed. They said the Sept. 11 attacks showed the need for all agents to work together. If criminal investigators learn a foreign suspect is involved in suspicious activities, they can urge the intelligence unit to seek a FISA warrant.

The USA Patriot Act expressly “authorizes more effective coordination between intelligence and law-enforcement officials,” the department said in its appeal to a special three-member review court appointed by Chief Justice William H. Rehnquist.

On Monday, that court met behind closed doors at the Justice Department to hear Solicitor General Theodore B. Olson present this argument.

In Tuesday’s hearing, Kris said the critics were exaggerating the effect of the change.

“As always, a FISA target must be an agent of a foreign power,” he said. “Domestic criminals--corrupt Enron executives, Sammy ‘the Bull’ Gravano or Timothy McVeigh--cannot be FISA targets.... Let me emphasize: We cannot monitor anyone today whom we could not have monitored at this time last year.”

The senators admitted to struggling to understand FISA and to find the right balance between searches and civil liberties.

“There has been a dramatic change in the terrorist landscape since 1978, when FISA was enacted,” said Sen. Orrin G. Hatch (R-Utah), adding that he supported the administration.

Republican Jon Kyl of Arizona and Democrat Charles E. Schumer of New York have sponsored a bill to allow FISA searches of a “lone wolf” terrorist who is not affiliated with a known terrorist group.

In June, the committee heard from Coleen Rowley, a Minneapolis FBI agent who said that her office was unable to obtain a FISA warrant to inspect the laptop computer of Zacarias Moussaoui in the weeks before the Sept. 11 attack because there was no clear evidence linking the French Muslim to an international terrorist group.

“We need to give the government some expanded powers,” Schumer said. “The real trick is finding the right balance.”

Leahy said he might offer legislation to change or clarify FISA, but he would probably await a ruling from the review court.