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Senators: FBI Grabbing More Wiretap Powers
Josey1
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Senators: FBI Grabbing More Wiretap Powers
Wednesday, September 11, 2002
By Kelley Beaucar Vlahos
WASHINGTON - Senators complained Tuesday that the Justice Department is trying to assert more authority in federal wiretap cases than it was authorized to have under last year's USA Patriot Act.
In a Senate Judiciary Committee hearing Tuesday, senators pointed to a recently declassified May 17 ruling by the Foreign Intelligence Surveillance Court of Review, which said the Justice Department's interpretation of its wiretap powers under the Patriot Act were wrong and had overreached the original intent of the Foreign Intelligence Surveillance Act.
"The glimpses offered by this unclassified opinion raise policy, process and constitutional issues about implementation of the new law," said Senate Judiciary Chairman Patrick Leahy, D-Vt.
But Justice Department officials say that they need new wiretap authority to chase down multi-layered terror cells whose existence may first be discovered through criminal leads that are seemingly unrelated to terror plots.
"What's at stake here really is the government's ability, effectively to protect this nation against foreign terrorists and espionage threats," said David Kris, associate deputy attorney general.
The FISA court was set up in 1978 as a "secret" appellate court charged with granting search warrants in foreign surveillance cases, but not average criminal activities at home. The court, which meets on the sixth floor of the Justice Department, has denied only one out of the 10,000 applications it has received from the feds since its creation.
After the Sept. 11 attacks, Congress made it easier for FISA to rule on warrant cases, allowing for such secret warrants even if foreign security matters were only a "significant" piece of the case, and the rest were criminal.
That change in the law prompted the Justice Department to rewrite its guidelines for the new wiretap laws to allow for warrant applications in which criminal activity is a "primary" reason for the surveillance. It says this was the true interpretation of the new guidelines under the Patriot Act.
Now the Justice Department says the court, and several senators, went too far.
In May, the court refused to give the Justice Department certain powers that might blur the line between criminal law enforcement and national security.
The court wrote that the new guidelines were "not reasonably designed" to safeguard the privacy of Americans and allowed for 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 wrote.
It also admonished the department for making more than 75 errors in applications for top-secret espionage and terrorism warrants during the eight years of the Clinton administration. Applications can never be disputed by the defendants named in the requests, which are all classified.
On Monday, the court heard an appeal from the Justice Department to let it continue its pursuit of criminal warrants.
"In our view, [the court] 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," Justice Department spokeswoman Barbara Comstock said.
What will come out of the court's Monday meeting may never be made public, but the dispute was enough for some Democratic senators to lash out at the department on Tuesday, suggesting that the department was making a grab for more power at the expense of citizens' constitutional rights.
"We sought to amend FISA to make it a better foreign intelligence tool. We did not amend FISA to make it a better law enforcement tool," Leahy said. "We did not seek to obliterate the line between the two."
"In my mind there has been a skewing, Mr. Chairman, of what we set up," added Sen. Diane Feinstein, D-Calif.
Republicans, however, argued that the very secrecy of FISA has not allowed them to get the full story. They warned that they did not want to overreact and then weaken the laws, putting the nation at even greater risk than prior to Sept. 11.
"Our intelligence gathering agencies must be able to communicate and share information," said Sen. Mike DeWine, R-Ohio, adding that he believes that FISA doesn't give law enforcement enough powers.
"Some of us believe . that the interpretation of the original FISA law has become tighter and tighter and more burdensome over the years," he said. "I believe that the interpretation may have affected our national security."
http://www.foxnews.com/printer_friendly_story/0,3566,62671,00.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Wednesday, September 11, 2002
By Kelley Beaucar Vlahos
WASHINGTON - Senators complained Tuesday that the Justice Department is trying to assert more authority in federal wiretap cases than it was authorized to have under last year's USA Patriot Act.
In a Senate Judiciary Committee hearing Tuesday, senators pointed to a recently declassified May 17 ruling by the Foreign Intelligence Surveillance Court of Review, which said the Justice Department's interpretation of its wiretap powers under the Patriot Act were wrong and had overreached the original intent of the Foreign Intelligence Surveillance Act.
"The glimpses offered by this unclassified opinion raise policy, process and constitutional issues about implementation of the new law," said Senate Judiciary Chairman Patrick Leahy, D-Vt.
But Justice Department officials say that they need new wiretap authority to chase down multi-layered terror cells whose existence may first be discovered through criminal leads that are seemingly unrelated to terror plots.
"What's at stake here really is the government's ability, effectively to protect this nation against foreign terrorists and espionage threats," said David Kris, associate deputy attorney general.
The FISA court was set up in 1978 as a "secret" appellate court charged with granting search warrants in foreign surveillance cases, but not average criminal activities at home. The court, which meets on the sixth floor of the Justice Department, has denied only one out of the 10,000 applications it has received from the feds since its creation.
After the Sept. 11 attacks, Congress made it easier for FISA to rule on warrant cases, allowing for such secret warrants even if foreign security matters were only a "significant" piece of the case, and the rest were criminal.
That change in the law prompted the Justice Department to rewrite its guidelines for the new wiretap laws to allow for warrant applications in which criminal activity is a "primary" reason for the surveillance. It says this was the true interpretation of the new guidelines under the Patriot Act.
Now the Justice Department says the court, and several senators, went too far.
In May, the court refused to give the Justice Department certain powers that might blur the line between criminal law enforcement and national security.
The court wrote that the new guidelines were "not reasonably designed" to safeguard the privacy of Americans and allowed for 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 wrote.
It also admonished the department for making more than 75 errors in applications for top-secret espionage and terrorism warrants during the eight years of the Clinton administration. Applications can never be disputed by the defendants named in the requests, which are all classified.
On Monday, the court heard an appeal from the Justice Department to let it continue its pursuit of criminal warrants.
"In our view, [the court] 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," Justice Department spokeswoman Barbara Comstock said.
What will come out of the court's Monday meeting may never be made public, but the dispute was enough for some Democratic senators to lash out at the department on Tuesday, suggesting that the department was making a grab for more power at the expense of citizens' constitutional rights.
"We sought to amend FISA to make it a better foreign intelligence tool. We did not amend FISA to make it a better law enforcement tool," Leahy said. "We did not seek to obliterate the line between the two."
"In my mind there has been a skewing, Mr. Chairman, of what we set up," added Sen. Diane Feinstein, D-Calif.
Republicans, however, argued that the very secrecy of FISA has not allowed them to get the full story. They warned that they did not want to overreact and then weaken the laws, putting the nation at even greater risk than prior to Sept. 11.
"Our intelligence gathering agencies must be able to communicate and share information," said Sen. Mike DeWine, R-Ohio, adding that he believes that FISA doesn't give law enforcement enough powers.
"Some of us believe . that the interpretation of the original FISA law has become tighter and tighter and more burdensome over the years," he said. "I believe that the interpretation may have affected our national security."
http://www.foxnews.com/printer_friendly_story/0,3566,62671,00.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
But activists fear slippery slope of rights erosion
By David Shepardson, April Taylor and Oralandar Brand-Williams / The Detroit News
DEARBORN--Fatina Abdrabboh worries about the new powers of surveillance that government investigators won in the wake of the Sept. 11 attacks.
Abdrabboh fears that she, a Palestinian American, and other Arab Americans will become the target of unwarranted wiretaps, monitoring and secret hearings solely because of their ethnicity. She has tucked away most of her favorite "I am Muslim" T-shirts and changed the "Free Palestine" screen saver on her computer.
"My freedom of identity and expression are gone," said Abdrabboh, 21, of Dearborn. "I get the feeling that I'm being watched."
But attorney Robert Heller of West Bloomfield Township feels law enforcement's new powers will help protect everyone from another terrorist attack. "Just look at the devastation of Sept.11. It's not such an invasion of my civil liberties to require additional scrutiny."
So far, most Americans agree with Heller, according to public opinion polls. In a survey released earlier this summer, nearly seven out of 10 U.S. citizens said the federal government was doing enough to protect their rights. And nearly eight out of 10 surveyed approved of video surveillance cameras in public places such as national monuments.
But that sentiment hasn't stopped civil libertarians such as Kary L. Moss of the American Civil Liberties Union (ACLU) from worrying about the future of freedom in this country.
"There are going to be a lot more ways government will be intrusive in our lives -- whether it's national identification cards or a greater ease in obtaining personal financial information by the government and a lessening in standards on searching people's home for persons," said Moss, head of the state's ACLU chapter. "These are the issues we need to be looking out for because they will have ramifications for years to come."
New laws add to the debate
Several federal and state laws concern civil libertarians, Arab-American activists and advocates for free speech on the Internet.
Among them:
* The U.S.A. Patriot Act, passed in October, which allows FBI agents to get a search warrant to review Internet communication if it determines it is "relevant to an ongoing criminal investigation," a far lower hurdle than the original standard of determining that it is likely a crime may have been committed before conducting a search.
The act also allows for the broad sharing of grand jury information in criminal cases with intelligence agencies, including the CIA, without getting approval from a judge first.
* The state eased search-warrant requirements in terrorist investigations, meaning law enforcement does not have to show evidence of actual criminal activity to get a judge to approve a search.
The federal law making it easier to investigate Internet communication allows the FBI to determine what Web sites a person has visited. That power could easily be abused by the government to violate people's privacy, Moss and several Internet users groups said.
Armed with the law, the FBI in Detroit is searching computers at public libraries. The agency has visited two libraries in Michigan since Sept. 11 to conduct searches of records, said spokeswoman Dawn Clenney. But she declined to say precisely where or when the searches occurred.
At least one Metro Detroit librarian contacted the ACLU for advice about what to do after FBI agents arrived, Moss said.
State may expand wiretap powers
Civil libertarians also are highly critical of a bill in the state House that would give local police wiretapping powers.
Michigan is one of six states that doesn't allow wiretapping independent of the FBI. Law enforcement officers in Michigan must go to a federal judge to get permission to tap a suspect's phone.
In February, a bill to allow local police to tap phones without federal approval passed the Senate, 27-8. The bill, which is supported by Democratic gubernatorial candidate Jennifer Granholm and her GOP rival Dick Posthumus, remains in the state House.
Senate Judiciary Committee Chairman William Van Regenmorter, R-Georgetown Township, predicts it will go to Gov. John Engler in the lame-duck session of the Legislature after the November elections. "A year down the road, the threat of terrorism remains very real," he said.
Moss argued that legislation is not needed because local authorities can go to federal court to get such permission.
Media fight closed hearings
Media organizations, with the help of civil rights groups, are fighting the federal government's efforts to close to the public court hearings that are tied to the terrorism investigation.
The main legal battleground on this issue is the case of Rabih Haddad of Ann Arbor, co-founder of an Islamic charity that the government accuses of funding terrorism.
Haddad was detained in December for overstaying a tourist visa while he sought permanent residency.
But the government declared his hearing a "special interest case." Under a Sept. 21 order from chief Immigration and Naturalization Service Judge Michael Creppy, it closed all proceedings in the case to the public and sealed all court records.
The Detroit News and other area newspapers sued to open Haddad's hearings to the public, along with U.S. Rep John Conyers, D-Detroit. The Sixth Circuit Court of Appeals in Cincinnati upheld a ruling by a federal judge in Detroit that ordered the government to open the deportation hearing to the public. http://www.detnews.com/2002/specialreport/0209/11/s12-583743.htm
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Related stories
Karen Dorn Steele
Staff writer
Spokane Public Library Director Jan Sanders is a strong defender of civil liberties. She also knows what it's like to dodge a terrorist attack.
Sanders, a former Oklahoma librarian, was supposed to attend a meeting at the federal building in Oklahoma City on April 19, 1995 -- the same hour as the bombing that shocked the country and aimed a spotlight on domestic terrorism.
Her meeting had been canceled the week before.
When terror struck from abroad last Sept. 11, Sanders braced herself for more intense emotion -- and renewed calls from some Americans to curtail civil liberties to fight back.
"People were upset about Oklahoma City. Sept. 11 was larger, and people were frightened. They are willing to put their rights aside as a consequence -- it's a scary slope," she said.
Eastern Washington and North Idaho have already been affected, although not to the same extent as large cities with big Muslim populations.
Since Sept. 11, FBI agents have requested records on the book-buying habits of a Spokane man accused of possessing a deadly chemical and the records of a King County library patron. Kent police have seized two library computers.
Spokane County emergency planners have also been left without access to safety information about potential terrorist targets, due to new state restrictions on public records.
Sanders and other librarians are unhappy with portions of the USA Patriot Act, which Congress passed in October 2001.
The law makes it easier for agents to peek into homes, go through e-mail and voice mail, and quietly look at library records, credit-card bills and book purchases.
It allows the FBI to obtain a search warrant from a secret court, by showing it has reason to suspect a person is linked to a terrorist or a terrorist plot. That's an easier hurdle than meeting the legal standards of probable cause required for traditional search warrants.
Spokane's library hasn't been approached for information, Sanders said. But a University of Illinois survey of 1,020 public libraries earlier this year found that 85 libraries -- nearly all in large cities -- have been asked by federal or local police to disclose information.
Jim McDevitt, U.S. attorney for Eastern Washington, says the Patriot Act has given law enforcement "a set of necessary tools" to fight terrorism.
If another major attack occurs, "some may decide the Patriot Act isn't enough," said McDevitt.
The events have shaken the Justice Department out of its traditional prosecutorial role into a new realm -- trying to thwart attacks before they occur.
"There will be some insults to previously enjoyed civil liberties. It's unfortunate, but people need to understand law enforcement can't protect unless we have the necessary tools," he said.
There's increasing concern across the political spectrum that the Patriot Act goes too far, said Doug Honig, public education director of the American Civil Liberties Union of Washington.
In Washington, the ACLU successfully fought blanket searches of passengers at state ferries and a proposal endorsed by Gov. Gary Locke that would have expanded government wiretapping. It failed to pass the Legislature.
Last month, Sanders advised Auntie's Bookstore owner Chris O'Harra on how to respond to a recent FBI request for records of a criminal suspect's book purchases.
The FBI wants bookstore records on Kenneth R. Olsen, a Spokane Valley man accused of manufacturing the deadly agent ricin in an alleged plot to kill his wife.
The Patriot Act enhanced the penalties for possessing ricin or other biological materials that can't be justified for peaceful purposes. Olsen faces up to life in prison and a $250,000 fine.
It's the first such FBI request she's received, O'Harra said. "I wouldn't mind helping them out, but I'm also very concerned about customer privacy," she said.
McDevitt said he's "absolutely forbidden" from commenting on an ongoing investigation.
Auntie's is resisting the FBI request. The American Booksellers' Foundation for the Freedom of Expression has stepped in to help, said Chris Finan, director of the New York City group.
Two incidents in Western Washington have concerned civil libertarians.
Last November, the FBI subpoenaed the King County Library for all the information it had on a terrorism suspect. The library went to court and got the subpoena quashed, said Bill Ptacek, library director.
"There's a privacy right for library information unless a court determines otherwise," Ptacek said.
This summer, Kent police seized two computers from the King County Library without a warrant. The police later said they were looking for users of Internet pornography.
The library fought back, and a federal judge ruled the search illegal. The city of Kent was ordered to pay $30,000 in legal costs.
Some government information is also a casualty of Sept. 11.
Last October, Attorney General John Ashcroft moved to restrict public access to documents under the Freedom of Information Act, directing agencies to deny requests on any "sound legal basis" -- a laxer standard than the government's previous need to prove release of the documents would cause "substantial harm."
Information on nuclear power plants, water supply systems and other facilities has been disappearing from Web sites.
For example, the Government Printing Office after Sept. 11 ordered the destruction of a U.S. Geological Survey CD-ROM on national water supply systems. The U.S. Environmental Protection Agency also removed information about the dangers of chemical accidents from its Web site.
A new, terrorism-related state law took effect June 13. It exempts "vulnerability assessments" of possible terrorist targets from public disclosure.
Much of the vulnerability information "is so confidential that we don't have it," said Dave Byrnes of Spokane County's Department of Emergency Management.
Karen Dorn Steele can be reached at 459 5462, or by e-mail at karend@spokesman.com
http://www.spokesmanreview.com/news-story.asp?date=091002&ID=s1213723&cat=section.spokane
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
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