Sunday, June 15, 2003

Long-sought details have begun to emerge from the Justice Department on how anti-terrorist provisions of the USA Patriot Act were applied in nonterror investigations, just as battle lines are being drawn on proposed new powers in a Patriot Act II.

Overall, the policy now allows evidence to be used for prosecuting common criminals even when obtained under extraordinary anti-terrorism powers and information-sharing between intelligence agencies and the FBI.

“We would use whatever tools are available to us, within reason, to prosecute violations of any law,” Justice Department spokesman Bryan Sierra said in the wake of his department’s massive report to Congress describing how the USA Patriot Act is being implemented.

The information was a response to doubts, not from outspoken civil liberties groups, but from Rep. F. James Sensenbrenner Jr., Wisconsin Republican and the House Judiciary Committee chairman who publicly pushed for its speedy 337-79 House passage.

“We had something to do with encouraging Chairman Sensenbrenner to express our concerns,” said Timothy Edgar, American Civil Liberties Union legislative counsel. The ACLU spearheaded opposition to sections that could let the government obtain vast amounts of information that infringe on constitutional rights.

“It’s clear that the problems of 9/11 were the result of not analyzing information we had already collected. Creating more hay to search through the haystack is not an effective way to find the needle,” Mr. Edgar said in an interview.

“It’s impossible for anyone to make the case that our civil liberties were the problem,” agreed Lee Tien, staff attorney at the Electronic Frontier Foundation in San Francisco.

Key objections include authorizing FBI agents to monitor mosques, which the Justice Department said was done only by 20 percent of FBI’s 45 field offices; access to business records, which they say includes files at libraries and bookstores; and expanding CIA influence over domestic intelligence by authorizing the agency to request individual surveillance.

The Justice Department takes the position that grand juries have long had the power to subpoena bookstore and library records, and that the Patriot Act merely expanded that authority to anti-terror and foreign intelligence probes.

Mr. Tien said the Patriot Act corrected a general belief that the long-standing Foreign Intelligence Surveillance Act was restricted to terrorist activity.

“It is now much easier to use FISA surveillance in an investigation for a law-enforcement purpose,” he said, but he added that authorities rarely cross that line.

Without acknowledging such objections, Attorney General John Ashcroft told the House Judiciary Committee in an appearance Thursday to consult on guidelines for future investigations that September 11 proved the FBI must prevent crime, and not just wait for new outrages.

But Mr. Ashcroft always was emphatic about the law’s purpose and on Oct. 25, 2001, told the U.S. Mayors Conference that he supported applying to terrorists Robert Kennedy’s stated policy to arrest organized crime figures for “spitting on the sidewalk” if need be.

“We will use every available statute. We will seek every prosecutorial advantage,” Mr. Ashcroft said that day before the Patriot Act was signed into law. On June 5 he asked that those powers be expanded.

More changes were expected to follow Justice Department negotiations with House Judiciary Committee staffers scheduled for last week, but the recent revelations showed that information gathered under the law — by secret warrant or compulsory disclosures — will be used for nonterrorist prosecutions as well.

The committee’s ranking Democrat, John Conyers Jr. of Michigan, said he hoped the meetings would allow better analysis of the complex subject than each member’s having five minutes each to quiz Mr. Ashcroft.

The complexity of the 342-page USA Patriot Act would be difficult to overstate since it modified 15 existing laws to:

• Expand the capability to obtain warrants and conduct searches without disclosing them immediately.

• Expand DNA collection to include any violent crime.

• Allow Internet monitoring.

• Mandate access to “business records” that include librarian and bookstore files.

• Restrict lawsuits to keep from bankrupting airlines whose planes were hijacked September 11.

• Compensate survivors of more than 3,000 people killed that day.

Many provisions are now planned to expire in October 2005, although evidence obtained now may be used later. Some provisions are yet to go into effect, including aspects requiring fuller identification of “financial-transaction” customers, which takes full force Oct. 1.

Software, like that sold by Innovative Systems of Pittsburgh, helps firms in 25 finance-related industries covered by the law to compare millions of customer records with thousands of entries on federal government blacklists. “Suspicious Activity Reports” will be required to the Treasury Department from car dealers, insurance companies, investment brokers, lenders, and real-estate firms.

“The only companies out doing that today are banks. I’ll bet a lot of places don’t even know they’ll have to do it,” said Charles Schardong, Innovative’s product manager, who said private companies shield their customers’ privacy.

One example of detail in the law — whose full formal name is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 — is that Acting Assistant Attorney General Jamie E. Brown used 60 closely spaced pages to respond to 18 pages of questions on civil liberties issues. In addition, answers containing classified information were filed separately.

Among other things, the DOJ revealed it obtained 113 secret emergency search or electronic-surveillance authorizations in the year after September 11, compared with 47 in the 23 years before that attack. The law lowered the standard for such intrusions from terrorism being “the purpose” to being only “a significant purpose.”

Other replies on statistical questions about the law’s implementation:

• One of the 15 requests to seize material without notifying the owners was refused. A court ruled photographs of items in storage would suffice, so seizure was unjustified.

• Justice refused to say how many persons were detained as “material witnesses” or identify any, but said that as of January the total was “fewer than 50” and that most were freed in less than 90 days.

• Six hundred accounts encompassing $124 million in assets were frozen and 70 “terrorist financing” investigations led to 23 convictions or guilty pleas.

• Information obtained from computer-service providers was used in investigations unrelated to foreign terrorism. They included a kidnaping, a bomb threat against a school, a hacker who extorted his victim, and a lawyer who defrauded clients.

• The FBI hired 264 translators “to support counterterrorism efforts,” including 121 Arabic speakers and 25 who speak Farsi.

• Telephone voicemails were obtained through search warrants rather than wiretap orders “in a variety of criminal cases … [including] foreign and domestic terrorists.” The law also opens to seizure e-mail stored on a provider’s server.

• Pen-register devices that record strokes on a telephone keypad or a computer keyboard identified conspirators in the murder of Wall Street Journal reporter Daniel Pearl.

• More than 8.4 million FBI files were provided to the State Department, and 83,000 records on wanted persons went to the Immigration and Naturalization Service along with data on detainees held in Afghanistan, Pakistan and Guantanamo Bay, Cuba.

“In our judgment the government success in preventing another catastrophic attack on the American homeland in the 20 months since September 11, 2001, would have been much more difficult, if not impossibly so, without the USA Patriot Act,” wrote Ms. Brown, who directs congressional affairs for the Justice Department.

Mr. Edgar, her opposite number at the ACLU, largely dismissed the bulky reply that provided answers his organization had long demanded.

“I’d say the response was dismissive and cavalier. It provided some information without answering the basic question: ‘Are we safer from terrorism?’” said Mr. Edgar, adding that the impact of the Patriot Act appears exaggerated.

“They say we’ve used this section or that section but don’t say why, how, or whether it was important or what would have happened if they had not used that section or whether it was used to prevent terrorism,” Mr. Edgar said.

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