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White House Appeals Wiretap Ruling
Administration Appeals Court Ruling That Rejected Some New Wiretap Rules

The Associated Press, 23 August 2002


W A S H I N G T O N, Aug. 23 - Setting up the next showdown over anti-terrorism powers, the Bush administration appealed a court ruling that forced Attorney General John Ashcroft to change new guidelines for FBI terrorism searches and wiretaps.

Documents released Thursday showed that the U.S. Foreign Intelligence Surveillance Court, which has not publicly disclosed any of its rulings in nearly two decades, rejected some of Ashcroft's guidelines as "not reasonably designed" to safeguard the privacy of Americans. The secretive court oversees government's most sensitive surveillance efforts.

The Justice Department amended the guidelines and won the court's approval. But the Bush administration it was appealing the court's restrictions, arguing that the new limits inhibit the sharing of information between terrorism investigators and criminal investigators.

The Justice Department declined to release a copy of the appeal Thursday night to reporters. Officials said it was coincidence that the appeal was filed the same day the court's May 17 order was made public.

The court also disclosed the FBI acknowledged making more than 75 mistakes in applications for espionage and terrorism warrants under the surveillance law, including one instance in which former Director Louis Freeh gave inaccurate information to judges.

"How these misrepresentations occurred remains unexplained to the court," the special court said.

The court's orders, signed by U.S. District Judge Royce Lamberth, were disclosed to the Senate Judiciary Committee, which has raised questions about the Justice Department's use of wiretap laws in espionage and terrorism cases.

The court, now headed by U.S. District Judge Colleen Kollar-Kotelly, said it intended separately to publish the rulings and promised similarly to disclose any future unclassified orders.

Congress last year passed and President Bush signed the USA Patriot Act, which among other things loosened standards for obtaining warrants.

In March, Ashcroft, in a memorandum to FBI Director Robert Mueller and senior Justice officials, made it easier for investigators in espionage and terrorism cases to share information from searches or wiretaps with FBI criminal investigators.

But the surveillance court, which considers federal search and wiretap requests in secret under the 1978 Foreign Intelligence Surveillance Act, found that Ashcroft's rules could allow misuse of information in criminal cases. Prosecutors in criminal cases must meet higher legal standards to win approval for searches or wiretaps.

"These procedures cannot be used by the government to amend the (surveillance) act in ways Congress has not," the court wrote. In its rare public rebuke, it said the Justice Department spent "considerable effort" arguing its case, "but the court is not persuaded."

Justice spokeswoman Barbara Comstock said that the decision hampers use of the surveillance law.

"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.

Ashcroft had argued that, under changes authorized by the Patriot Act, the FBI could use the 1978 surveillance law to perform searches and wiretaps "primarily for a law enforcement purpose, so long as a significant foreign intelligence purpose remains."

Critics of the 1978 law said it may have hampered the federal investigation of Zacarias Moussaoui prior to the Sept. 11 attacks. Moussaoui now is awaiting trial on conspiracy charges in the attacks.

The Patriot Act changed the surveillance law to permit its use when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose" of an investigation. Critics at the time said they feared government might use the change to employ espionage wiretaps in common criminal investigations.

"The attorney general seized authority that has not been granted to him by the Constitution or the Congress," said Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center.

In a follow-up order also disclosed Thursday, the court accepted new Justice guidelines amending Ashcroft's instructions. The court also demanded to be told about any criminal investigations of targets under the surveillance act and about discussions between the FBI and prosecutors at Justice.

"The first Ashcroft order sort of snugged up against the new line that was being drawn, and that may not have been prudent," said Stewart Baker, an expert on the law and former general counsel at the National Security Agency. "You might be able to justify it legally, but I can see why the court would have reacted badly."

Critics have worried that the surveillance court is too closely allied with the government, noting that judges have rarely denied a request under the 1978 law. But the newly disclosed court's orders indicated irritation with serious FBI blunders in 2000 and 2001.

The court said the FBI admitted in September 2000 to mistakes in 75 wiretap applications, including Freeh's erroneous statement to judges that the target of a wiretap request wasn't also under criminal investigation.

Copyright © 2002 The Associated Press
Reprinted for Fair Use Only.

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