Secret Court Rebuffs Ashcroft: Justice Department Chided On Misinformation

23 August 2002

The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.

A May 17 opinion by the court that oversees the Foreign Intelligence Surveillance Act (FISA) alleges that Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh.

Authorities also improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions, the judges said.

Given such problems, the court found that new procedures proposed by Attorney General John D. Ashcroft in March would have given prosecutors too much control over counterintelligence investigations and would have effectively allowed the government to misuse intelligence information for criminal cases, according to the ruling.

The dispute between the Justice Department and the FISA court, which has raged behind closed doors until yesterday, strikes at the heart of Ashcroft's attempts since Sept. 11 to allow investigators in terrorism and espionage to share more information with criminal investigators.

Generally, the Justice Department must seek the FISA court's permission to give prosecutors of criminal cases any information gathered by the FBI in an intelligence investigation. Ashcroft had proposed that criminal-case prosecutors be given routine access to such intelligence information, and that they be allowed to direct intelligence investigations as well as criminal investigations.

The FISA court agreed with other proposed rule changes. But Ashcroft filed an appeal yesterday over the rejected procedures that would constitute the first formal challenge to the FISA court in its 23-year history, officials said.

"We believe the court's action unnecessarily narrowed the Patriot Act and limited our ability to fully utilize the authority Congress gave us," the Justice Department said in a statement.

The documents released yesterday also provide a rare glimpse into the workings of the almost entirely secret FISA court, composed of a rotating panel of federal judges from around the United States and, until yesterday, had never jointly approved the release of one of its opinions. Ironically, the Justice Department itself had opposed the release.

Stewart Baker, former general counsel of the National Security Agency, called the opinion a "a public rebuke.

"The message is you need better quality control," Baker said. "The judges want to ensure they have information they can rely on implicitly."

A senior Justice Department official said that the FISA court has not curtailed any investigations that involved misrepresented or erroneous information, nor has any court suppressed evidence in any related criminal case. He said that many of the misrepresentations were simply repetitions of earlier errors, because wiretap warrants must be renewed every 90 days. The FISA court approves about 1,000 warrants a year.

The department discovered the misrepresentations and reported them to the FISA court beginning in 2000.

Enacted in the wake of the domestic spying scandals of the Nixon era, the FISA statute created a secret process and secret court to review requests to wiretap phones and conduct searches aimed at spies, terrorists and other U.S. enemies.

FISA warrants have been primarily aimed at intelligence-gathering rather than investigating crimes. But Bush administration officials and many leading lawmakers have complained since Sept. 11 that such limits hampered the ability of officials to investigate suspected terrorists, including alleged hijacking conspirator Zacarias Moussaoui.

The law requires agents to be able to show probable cause that the subject of the search is an agent of a foreign government or terrorist group, and authorizes strict limits on distribution of information because the standards for obtaining FISA warrants are much lower than for traditional criminal warrants.

In Moussaoui's case, the FBI did not seek a FISA warrant to search his laptop computer and other belongings in the weeks prior to the Sept. 11 attacks because some officials believed that they could not adequately show the court Moussaoui's connection to a foreign terrorist group.

The USA Patriot Act, a set of anti-terrorism measures passed last fall, softened the standards for obtaining intelligence warrants, requiring that foreign intelligence be a significant, rather than primary, purpose of the investigation. The FISA court said in its ruling that the new law was not relevant to its decision.

Despite its rebuke, the court left the door open for a possible solution, noting that its decision was based on the existing FISA statute and that lawmakers were free to update the law if they wished.

Members of the Senate Judiciary Committee have indicated their willingness to enact such reforms but have complained about resistance from Ashcroft. Chairman Patrick J. Leahy (D-Vt.) said yesterday's release was a "ray of sunshine" compared to a "lack of cooperation" from the Bush administration.

Sen. Charles E. Grassley (R-Iowa), another committee member, said the legal opinion will "help us determine what's wrong with the FISA process, including what went wrong in the Zacarias Moussaoui case. The stakes couldn't be higher for our national security at home and abroad."

The ruling, signed by the court's previous chief, U.S. District Judge Royce C. Lamberth, was released by the new presiding judge, U.S. District Judge Colleen Kollar-Kotelly.

FBI and Justice Department officials have said that the fear of being rejected by the FISA court, complicated by disputes such as those revealed yesterday, has at times caused both FBI and Justice officials to take a cautious approach to intelligence warrants.

Until the current dispute, the FISA court had approved all but one application sought by the government since the court's inception. Civil libertarians claim that record shows that the court is a rubber stamp for the government; proponents of stronger law enforcement say the record reveals a timid bureaucracy only willing to seek warrants on sure winners.

The opinion itself -- and the court's unprecedented decision to release it -- suggest that relations between the court and officials at the Justice Department and the FBI have frayed badly.

FISA applications are voluminous documents, containing boilerplate language as well as details specific to each circumstance. The judges did not say the misrepresentations were intended to mislead the court, but said that in addition to erroneous statements, important facts have been omitted from some FISA applications.

In one case, the FISA judges were so angered by inaccuracies in affidavits submitted by FBI agent Michael Resnick that they barred him from ever appearing before the court, according to the ruling and government sources.

Referring to "the troubling number of inaccurate FBI affidavits in so many FISA applications," the court said in its opinion: "In virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors."

The judges were also clearly perturbed at a lack of answers about the problems from the Justice Department, which is still conducting an internal investigation into the lapses.

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

Dan Eggen and Susan Schmidt
Published in the Washington Post © 2002 The Washington Post Company

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