[August 23, 2002]
WASHINGTON, Aug. 22 ‹ The nation's secret intelligence court has identified more than 75 cases in which it says it was misled by the Federal Bureau of Investigation in documents in which the bureau attempted to justify its need for wiretaps and other electronic surveillance, according to the first of the court's rulings to be released publicly.
The opinion by the Foreign Intelligence Surveillance Court, which was issued in May but made public today by Congress, is stinging in its criticism of the F.B.I. and the Justice Department, which the court suggested had tried to defy the will of Congress by allowing intelligence material to be shared freely with criminal investigators.
In its opinion, the court rejected a secret request made by the Justice Department this year to allow broader cooperation and evidence-sharing between counterintelligence investigators and criminal prosecutors. The court found that the request was "not reasonably designed" to safeguard the privacy of Americans. The court generally operates in secret and is responsible for approving warrants to eavesdrop on people suspected of espionage or terrorism.
The opinion may be important in documenting why the F.B.I. was hesitant last summer to seek court authority to search the computer and other belongings of Zacarias Moussaoui, the only person charged in the Sept. 11 attacks.
Mr. Moussaoui was arrested in Minnesota last August, and F.B.I. officials have acknowledged that their failure to investigate him more fully was among the mistakes that allowed the Sept. 11 hijackers to operate in the United States undetected in the weeks before the attacks.
Officials have previously acknowledged that at the time of Mr. Moussaoui's arrest, the F.B.I. was wary of making any surveillance requests to the special court after its judges had complained bitterly the year before that they were being seriously misled by the bureau in F.B.I. affidavits requesting surveillance of Hamas, the militant Palestinian group.
As a result of the complaints, the Justice Department opened an internal investigation of the conduct of senior F.B.I. and Justice Department officials. Department officials said the inquiry was still under way and could result in disciplinary action.
Justice Department officials noted that the criticism of the department in the opinion referred mostly to actions by the department and the F.B.I. in the Clinton administration.
The department said today that it intended to appeal the court's decision not to grant its request for broader authority to share intelligence information with criminal investigators, and that secret appeal papers were filed today with a special three-judge panel that oversees the surveillance court.
"We believe this decision unnecessarily narrowed the Patriot Act and limits our ability to fully utilize the authority that Congress provided us," said Barbara Comstock, the Justice Department spokeswoman, referring to the U.S.A. Patriot Act, the broad antiterrorism law that Congress passed after Sept. 11. The act makes it easier for prosecutors to use information gathered from intelligence wiretaps.
At a forum in April at the University of Texas, Judge Royce C. Lamberth, who recently stepped down as the court's presiding judge, praised Attorney General John Ashcroft and his staff for ending abuses of the system for requesting wiretap authority. The F.B.I. had no separate comment on the ruling and referred calls to the Justice Department.
In its opinion made public today, the court, which is based in Washington, documented the "alarming number of instances" during the Clinton administration in which the F.B.I. might have acted improperly.
The opinion was part of a package of material presented this week by the court to the Senate Judiciary Committee, which is reviewing requests by the Justice Department for even broader investigative powers in the aftermath of Sept. 11. The committee released the documents today, along with a statement from the panel's chairman, Senator Patrick J. Leahy, Democrat of Vermont, who said, "this ray of sunshine from the judicial branch is a remarkable step forward for constructive oversight."
In weighing eavesdrop requests, the special court, which was created by the 1978 Foreign Intelligence Surveillance Act and was recently expanded from to 11 members from 7, is responsible for enforcing provisions of the law that limit the sharing of electronic surveillance from intelligence or terrorism cases with criminal investigators; the limitations are intended to uphold the Fourth Amendment, which prohibits unreasonable search and seizure.
Because the standards of evidence required for electronic surveillance are much lower in many intelligence investigations than in criminal investigations, the authors of the law wanted to prevent the dissemination of intelligence information to criminal investigators or prosecutors.
But in a number of cases, the court said, the F.B.I. and the Justice Department had made "erroneous statements" in eavesdropping applications about "the separation of the overlapping intelligence and criminal investigators and the unauthorized sharing of FISA information with F.B.I. criminal investigators and assistant U.S. attorneys."
"How these misrepresentations occurred remains unexplained to the court," the opinion said.
In essence, the court said that the F.B.I. and the Justice Department were violating the law by allowing information gathered from intelligence eavesdrops to be used freely in bringing criminal charges, without court review, and that criminal investigators were improperly directing the use of counterintelligence wiretaps.
The opinion said that in September 2000, "the government came forward to confess errors in 75 FISA applications related to major terrorist attacks directed against the United States ‹ the errors related to misstatements and omissions of material facts."
In one case, it said, the error appeared in a statement issued by the office of Louis J. Freeh, then the F.B.I. director, in which the bureau said that target of an intelligence eavesdropping request "was not under criminal investigation."
In March of 2001, the court said, "the government reported similar misstatements in another series of FISA applications in which there was supposed to be a `wall' between separate intelligence and criminal squads in F.B.I. field offices to screen FISA intercepts, when in fact all of the F.B.I. agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations." The location of the squad and the nature of the inquiry were not described.
Gregory T. Nojeim, associate director of the national office of the American Civil Liberties Union in Washington, said the opinion was "astounding" in demonstrating that the F.B.I. and the Justice Department have tried an "end run around the Fourth Amendment protections against unreasonable searches."
"These disclosures couldn't have come at a worse time for the Department of Justice," Mr. Nojeim said. "They've just been given vast new intelligence powers and are seeking more."
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