-Caveat Lector- Anti-Terrorism Powers Grow 'Roving' Wiretaps, Secret Court Orders Used to Hunt Suspects By Vernon Loeb Washington Post Staff Writer Friday, January 29, 1999; Page A23 http://www.washingtonpost.com/wp-srv/WPlate/1999-01/29/042l-012999-idx.html As President Clinton proposes massive funding increases for counterterrorism, federal law enforcement agencies have already received substantial new legal authority to fight suspected terrorists with "roving" wiretaps and secret court orders for tracing telephone calls and obtaining business records. The expanded powers, high on the FBI's legislative wish list for years, were passed by Congress last fall as part of the intelligence authorization act. Michael Woods, chief of the FBI's national security law unit, said this week that "any one of these extremely valuable tools could be the keystone of a successful operation" against sophisticated foreign terrorists and intelligence operatives. But the American Civil Liberties Union (ACLU) and other privacy rights activists oppose the expanded law enforcement powers as unwarranted attacks on the Fourth Amendment, which bars unreasonable searches and seizures, and say the changes were enacted by an intelligence conference committee without public hearings and almost no debate. Neil J. Gallagher, the FBI's assistant director for national security, said the expanded powers can only be exercised with court approval. "We have to go to court and present the facts," Gallagher said. "It is not as though the FBI is using intrusive techniques" on its own authority. "Roving wiretaps" enable the government to eavesdrop on calls made by a suspect from multiple phones. Although legal authority for the wiretaps has existed since 1986, the courts have allowed few such intercepts because a standard requires the government to prove a suspect is intentionally thwarting a conventional wiretap by frequently changing phones. The new "roving wiretap" provision, applicable in all criminal investigations and not limited for use against terrorist suspects, removes "intent" from the legal standard and requires the government to show only that a target's use of multiple phones has the "effect" of preventing interception. Other new provisions for obtaining business records and tracing telephone calls amend a little-known statute called the Foreign Intelligence Surveillance Act (FISA). The law, passed 21 years ago, established a secret federal court to approve wiretap requests made by the Justice Department against suspected foreign terrorists and intelligence agents without probable cause that a crime has been committed. Secret FISA wiretaps, search warrants and orders can be used against U.S. citizens only in cases where the government can show there is a reason to believe that an American is engaged in espionage or terrorism on behalf of a foreign power. With the rise of international terrorism, the FISA framework has become a major source of information for intelligence-gathering and evidence for law enforcement. A secret FISA search warrant was granted in March 1995 to search a New York apartment building inhabited by members of Aum Shinrikyo, the Japanese religious cult that unleashed a sarin gas attack in the Tokyo subway system, even though its followers were not suspected of any crime in the United States. Critical evidence in both the World Trade Center bombing case and the Aldrich H. Ames spy case also came from warrants and wiretaps granted under FISA. Today, the secret FISA court grants more wiretaps than all other federal courts nationwide in criminal cases. In 1997, the FISA court approved 749 wiretaps; all other federal courts approved 569 wiretaps, federal records show. FISA wiretaps have doubled since the last year of the Bush administration, records show. One of the new FISA provisions passed by Congress last year would enable the Justice Department to obtain from the secret court an order that would allow agents to obtain the telephone numbers of all incoming and outgoing calls on any lines used or called by suspected foreign agents or terrorists. The other new FISA provision enables the Justice Department to obtain records from airlines, bus companies, rental car outlets, storage facilities, hotels and motels used by any suspected foreign agent or terrorist. Kate Martin, director of the Center for National Security Studies, said expanding the government's power under FISA to fight foreign terrorist threats in the United States dangerously blurs the line between intelligence-gathering and law enforcement, especially when individuals charged as spies and terrorists have no way to challenge the underlying issuance of FISA warrants and wiretaps used to gather evidence against them. "They're vastly expanding the traditional nature of what is a foreign intelligence investigation, and that threatens civil liberties in my view," she said. "They're trying to put under foreign intelligence matters that should be handled under the criminal code. We've already been down that road with disastrous consequences." The ACLU, in its analysis, opposed all three provisions, but the "roving" wiretap amendment topped its list. The provision "would not only lower the evidentiary standard for a roving wiretap order, it would also allow the tapping of any phone near the subject at any time the order is in effect. This includes the telephones in the private residences of a subject's friends, neighbors and business associates." Deputy Attorney General Eric H. Holder Jr., in a recent statement on "roving wiretaps," said that federal agents can use such an intercept only to "listen in on those criminally-related conversations in which the suspect is a party." As for the new FISA provisions, senior FBI officials said that Justice Department guidelines make it clear that FISA powers are not to be used as a way around probable cause to gather evidence in criminal investigations. "People can be agents of a foreign power or agents of a foreign terrorist organization--and we may know that's what they're doing--but have not yet committed a crime," said FBI's Woods. "Criminal authorities are not triggered until a crime is committed. The goal is to be able to not only build cases when we need to build cases, but prevent terrorist activities." � Copyright 1999 The Washington Post Company DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance�not soapboxing! 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