- The Washington Times - Saturday, August 24, 2002

The Justice Department said yesterday that a special court that oversees the issuing of wiretaps on suspected terrorists and spies misinterpreted a law passed after the September 11 attacks when it ordered the department to alter its guidelines in pursuing surveillance warrants.
In an appeal, the department said the U.S. Foreign Intelligence Surveillance Court one of the country's most secretive judicial bodies erred when it said the new USA Patriot Act did not justify new investigative techniques, including federal agencies' sharing information and surveilling people in cases where law enforcement was the primary interest.
Before the Patriot Act, prosecutors had to show that the primary purpose for surveillance was foreign intelligence.
The court told Attorney General John Ashcroft to scale back the guidelines. The department argued that under changes authorized by the Patriot Act, it could undertake searches and wiretaps "primarily for a law enforcement purpose, so long as a significant foreign-intelligence purpose remains."
Justice Department spokeswoman Barbara Comstock said the court's ruling, as a practical matter, limits the department's ability to engage in the kind of cooperation that is "both helpful and necessary" to protect national security.
"They have, in our view, incorrectly interpreted the Patriot Act, and the effect of that incorrect interpretation is to limit the kind of coordination that we think is very important," she said.
The appeal is the first time the Justice Department has challenged a ruling by the Foreign Intelligence Surveillance Court.
On May 17, the court said the Justice Department's revised guidelines were "not reasonably designed" to safeguard the privacy of Americans. The ruling made public Thursday said the new guidelines allowed the misuse of information in criminal investigations.
"These procedures cannot be used by the government to amend the [surveillance] act in ways Congress has not," the court said.
The court also said the FBI had made more than 75 errors in applications for top-secret espionage and terrorism warrants, including an inaccurate filing by former FBI Director Louis J. Freeh. All of the mistakes, which are the focus of a Justice Department inquiry, were made during the Clinton administration.
"How these misrepresentations occurred remains unexplained to the court," the court said in an unusual public statement.
The court's rulings, signed by U.S. District Judge Royce C. Lamberth, were sent to the Senate Judiciary Committee, which has raised questions about the department's use of wiretaps.
The committee's chairman, Sen. Patrick J. Leahy, Vermont Democrat, and two senior Republicans, Sens. Charles E. Grassley of Iowa and Arlen Specter of Pennsylvania, had asked the court in July for access to the documents. On Thursday, they released the court's ruling and other documents.
The court, made up of seven federal district court judges appointed by the chief justice of the U.S. Supreme Court, reviews applications by the Justice Department for authorization of secret surveillance warrants under the 1978 Foreign Intelligence Surveillance Act (FISA).
The court's records and files are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under a FISA warrant. Under FISA rules, there is no provision for the return of an executed warrant, much less with an inventory of items taken, nor for certification that the surveillance was even conducted.
The court meets inside a windowless room at the Justice Department.
The 1978 law, which limited the issuance of surveillance warrants to those cases involving foreign intelligence, has been criticized in recent months since the arrest of Zacarias Moussaoui, charged as a conspirator in the September 11 attacks on the World Trade Center and the Pentagon.
FBI agents in Minneapolis, advised that Moussaoui was seeking flight lessons, sought a FISA warrant in August 2001 to search his computer, but were blocked by FBI officials in Washington who said there was insufficient probable cause. The agents already had information that indicated Moussaoui was tied to terrorism suspects, including intelligence from officials overseas.
Under the Patriot Act, investigators are authorized to seek surveillance warrants when collecting information about foreign spies or terrorists under certain conditions.
During the past 24 years, the FISA court has approved thousands of surveillance requests, allowing searches and wiretaps on people suspected of having ties to international terrorists and spies.


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