The number of Americans being secretly wiretapped or having their financial and other records reviewed by the government has continued to increase as officials aggressively use powers approved after the Sept. 11 attacks. But the number of terrorism prosecutions ending up in court -- one measure of the effectiveness of such sleuthing -- has continued to decline, in some cases precipitously.
The trends, visible in new government data and a private analysis of Justice Department records, are worrisome to civil liberties groups and some legal scholars. They say it is further evidence that the government has compromised the privacy rights of ordinary citizens without much to show for it.
The emphasis on spy programs also is starting to give pause to some members of Congress who fear the government is investing too much in anti-terrorism programs at the expense of traditional crime-fighting. Other lawmakers are raising questions about how well the FBI is performing its counter-terrorism mission.
The Senate Intelligence Committee last week concluded that the bureau was far behind in making internal changes to keep the nation safe from terrorist threats. Lawmakers urged that the FBI set specific benchmarks to measure its progress and make more regular reports to Congress.
These concerns come as the Bush administration has been seeking to expand its ability to gather intelligence without prior court approval. It has asked Congress for amendments to the 1978 Foreign Intelligence Surveillance Act to make it clear that eavesdropping on foreign telecommunications signals routed through the U.S. does not require a warrant.
Law enforcement officials say the additional surveillance powers have been critically important in ways the public does not always see. Threats can be mitigated, they say, by deporting suspicious people or letting them know that authorities are watching them.
"The fact that the prosecutions are down doesn't mean that the utility of these investigations is down. It suggests that these investigations may be leading to other forms of prevention and protection," said Thomas Newcomb, a former Bush White House national security aide. He said there were half a dozen actions outside of the criminal courts that the government could take to snuff out potential threats, including using diplomatic or military channels.
Although legal experts say they would not necessarily expect the number of prosecutions to rise along with the stepped-up surveillance, there are few other good ways to measure how well the government is progressing in keeping the country safe.
"How does one measure the success? The short answer is we aren't in a great position to know," said Daniel Richman, a former federal prosecutor. With prosecutions declining, he said, the public is left with imperfect and possibly misleading ways to gauge progress in the Bush administration's war on terrorism -- such as the number of secret warrants the government issues or the number of agents it assigns to terrorism cases.
"These are the only tracks in the snow left by terrorism investigations, if there are no more counter-terrorism prosecutions," Richman said. "This is why, more than ever, there is a pressing need for congressional oversight, for accountability at the top of the [Justice] department, and for public confidence in the department."
A recent study showed that the number of terrorism and national security cases initiated by the Justice Department in 2007 was more than 50% below 2002 levels. The nonprofit Transactional Records Access Clearinghouse at Syracuse University, which obtained the data under the Freedom of Information Act, found that the number of cases brought declined 19% in the last year alone, dropping to 505 in 2007 from 624 in 2006.
By contrast, the Justice Department reported last month that the nation's spy court had granted 2,370 warrant requests by the department to search or eavesdrop on suspected terrorists and spies in the U.S. last year -- 9% more than in 2006. The number of such warrants approved by the Foreign Intelligence Surveillance Court has more than doubled since the 2001 terrorist attacks.
The department also reported a sharp rise in the use of national security letters by the FBI -- from 9,254 in 2005 to 12,583 in 2006, the latest data available. The letters seek customer information from banks, Internet providers and phone companies. They have caused a stir because consumers do not have a right to know that their information is being disclosed and the letters are issued without court oversight.
The inspector general of the Justice Department has found numerous cases in which FBI agents failed to comply with rules and guidelines in issuing the letters, often gaining access to information they were not entitled to. The FBI has responded by taking a number of measures to tighten its internal procedures.
Civil liberties groups say the new data reveal a disturbing consequence of the government's post-Sept. 11 expanded surveillance capabilities.
"The number of Americans being investigated dwarfs any legitimate number of actual terrorism prosecutions, and that is extremely troubling -- for both the security and privacy of innocent Americans as well as for the squandering of resources on people who have not and never will be charged with any wrongdoing," said Lisa Graves, deputy director of the Center for National Security Studies, a Washington-based civil liberties group.
A mixed record
But Dean Boyd, a Justice Department spokesman, said statistics on court-approved FISA applications and statistics on criminal prosecution were "apples and oranges."
"There are a variety of factors that may account for the increase in court-approved FISA applications since 9/11," he said. Boyd said he could not comment on those factors, but said, "It is important to remember that surveillance under FISA is authorized by an independent court and used carefully and judiciously to protect the country from national security threats."
Certainly, the government has pursued a number of high-profile terrorism cases of late. A U.S. sailor was convicted in March of providing support to terrorists by passing classified information regarding movements of a Navy battle group to operators of an Internet site suspected of terrorist leanings.
The record in court has been somewhat mixed, however. Federal prosecutors in Miami twice have failed to secure verdicts in the cases of six men accused of plotting to destroy Chicago's Sears Tower and several FBI offices. After two mistrials, the "Liberty City Seven" case is due in court in January.
Even some former government officials concede many intelligence investigations fail to yield evidence of a serious threat to the U.S. "Most of these threats ultimately turn out to be wrong, or maybe just the investigating makes them go away," said Washington lawyer Michael Woods, former head of the FBI national security law unit. "A lot more information is going to pass through government hands, and most of that is going to be about people who turn out to be innocent or irrelevant."