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Court misinterpreted { August 24 2002 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A55070-2002Aug23.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A55070-2002Aug23.html
Recognition of Patriot Act Urged
U.S. Appeal Says Surveillance Court Misinterpreted New Law
By Susan Schmidt
Washington Post Staff Writer
Saturday, August 24, 2002; Page A06
The Justice Department argued in a legal brief made public yesterday that a court that authorizes foreign intelligence surveillance in the United States has failed to recognize the expanded authority given criminal investigators under the new USA Patriot Act.
The department, which has appealed a unanimous opinion from the Foreign Intelligence Surveillance Court, argued that the judges failed to recognize that the Patriot Act expands coordination between law enforcement and intelligence officers to allow them to protect the public in investigating threats.
In the past, the Foreign Intelligence Surveillance Act (FISA) had required that a search or surveillance be conducted primarily for the purpose of gathering foreign intelligence information. The USA Patriot Act passed in the aftermath of the Sept. 11 attacks amended the standard, providing that the collection of foreign intelligence be "a significant purpose" of the search or wiretap.
The Justice Department said it believes the Patriot Act "allows FISA to be used primarily for a law enforcement purpose, as long as a significant foreign intelligence purpose remains." The act permits intelligence agents to share fully with criminal investigators information they gather that concerns threats to national security.
The FISA court, however, said law enforcement officials should not suggest FISA targets or seek particular information, that they should not "direct or control the use of FISA proceedings to enhance criminal prosecution." The court's opinion was issued May 17 but made public only this week, the first time any ruling from the secret tribunal has been released in its 24-year history.
The issue is a sensitive one because the standard for obtaining a FISA wiretap is relatively low. In normal criminal investigations, courts require a showing of probable cause a crime is being committed in granting wiretaps.
The judges said Attorney General John D. Ashcroft's new effort to allow prosecutors to direct FISA investigations amounts to an amendment of the law governing criminal searches and wiretaps.
In its ruling, the FISA court said that the Justice Department has admitted that the FBI made more than 75 misrepresentations in applications for espionage and terrorism warrants, nearly all of them during the Clinton administration. The department began disclosing the misrepresentations to the court in 2000, including then-FBI Director Louis J. Freeh's erroneous assertion that the target of a requested FISA wiretap was not under criminal investigation.
FISA Court Judge Royce C. Lamberth, formerly the court's presiding judge, lauded improvements in the FISA applications under Ashcroft last April in a speech to the University of Texas Law School.
"The political accountability that the attorney general must personally assume for each surveillance is an important safeguard, and we consistently find the [FISA] applications 'well-scrubbed' by the attorney general and his staff before they are presented to us."
The FISA court must depend solely on the government to present its information accurately, because proceedings are one-sided and are conducted in secret.
© 2002 The Washington Post Company
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