-Caveat Lector-
http://www.msnbc.com/news/889923.asp?0si=&cp1=1
U.S. steps up secret surveillance
FBI, Justice Dept. increase use of wiretaps, records searches
By Dan Eggen and Robert O'Harrow Jr.
THE WASHINGTON POST
WASHINGTON, March 24 — Since the Sept. 11, 2001, attacks, the Justice
Department and FBI have dramatically increased the use of two little-
known powers that allow authorities to tap telephones, seize bank and
telephone records and obtain other information in counterterrorism
investigations with no immediate court oversight, according to officials and
newly disclosed documents.
THE FBI, for example, has issued scores of “national
security letters” that require businesses to turn over electronic records
about finances, telephone calls, e-mail and other personal information,
according to officials and documents. The letters, a type of administrative
subpoena, may be issued independently by FBI field offices and are not
subject to judicial review unless a case comes to court, officials said.
Attorney General John D. Ashcroft has also personally signed more than
170 “emergency foreign intelligence warrants,” three times the number
authorized in the preceding 23 years, according to recent congressional
testimony.
Federal law allows the attorney general to issue unilaterally these
classified warrants for wiretaps and physical searches of suspected
terrorists and other national security threats under certain
circumstances. They can be enforced for 72 hours before they are
subject to review and approval by the ultra-secret Foreign Intelligence
Surveillance Court.
Government officials describe both measures as crucial tools in the war
on terrorism that allow authorities to act rapidly in the pursuit of potential
threats without the delays that can result from seeking a judge’s
signature. Authorities also stress that the tactics are perfectly legal.
SOME GROUPS TROUBLED BY TACTICS
But some civil liberties and privacy advocates say they are troubled by
the increasing use of the tactics, primarily because there is little or no
oversight by courts or other outside parties. In both cases, the target of
the investigation never has to be informed that the government has
obtained his personal records or put him under surveillance.
“When this kind of
•
Homeland security - special section
•
National security
power is used in the regular criminal justice system, there are some built-
in checks and balances,” said David Sobel, general counsel of the
Electronic Privacy Information Center (EPIC), which is suing the Justice
Department for information about its secretive anti-terrorism strategies.
“The intelligence context provides no such protection. That’s the main
problem with these kinds of secretive procedures.”
The use of national security letters has been accelerated in part
because Congress made it easier to use and apply them. The USA Patriot
Act, a package of sweeping anti-terrorism legislation passed after the Sept.
11 attacks, loosened the standard for targeting individuals by national
security letters and allowed FBI field offices, rather than a senior official
at headquarters, to issue them, officials said.
The records that can be obtained through the letters include
telephone logs, e-mail logs, certain financial and bank records and credit
reports, a Justice official said.
The Patriot Act also significantly increased the amount of intelligence
information that can be shared with criminal prosecutors and federal
grand juries, giving authorities new powers in the war on terrorism.
National security letters can be used as part of criminal investigations and
preliminary inquiries involving terrorism and espionage, according to
officials and internal FBI guidelines on the letters.
FIVE PAGES OF LOGS
According to documents given to EPIC and the
American Civil Liberties Union as part of their lawsuit, the FBI has issued
enough national security letters since October 2001 to fill more than five
pages of logs. There is no way to determine exactly how many times the
documents have been employed because the logs were almost entirely
blacked out, according to a copy provided to The Washington Post by the
ACLU.
The Justice Department and FBI refuse to provide summary data about
how often the letters are used. Several lawmakers have proposed
legislation that would require the department to provide that kind of data.
“In our view, the public is entitled to these statistics,” said Jameel
Jaffer, staff attorney for the ACLU’s national legal department. “We have
no idea how those are being used.”
FBI spokesman John Iannarelli said “it’s safe to say that anybody who is
going to conduct a terrorism investigation is probably going to use them at
some point. ... It’s a way to expedite information, and there’s nothing that
needs expediting more than a terrorism investigation.”
But a November 2001 memorandum prepared by FBI attorneys warned
that the letters “must be used judiciously” to avoid angering Congress,
which will reconsider Patriot provisions in 2005. “The greater availability of
NSLs does not mean they should be used in every case,” the memo says.
Beryl A. Howell, former general counsel to Sen. Patrick Leahy (D-Vt.)
and a specialist in surveillance law, described national security letters as
“an unchecked, secret power that makes it invisible to public scrutiny and
difficult even for congressional oversight.” Howell now is a managing
director and general counsel at Stroz Friedberg LLC, a computer forensic
firm in the District.
Under the Foreign Intelligence Surveillance Act (FISA), the government
has the power to obtain secret warrants for telephone wiretaps,
electronic monitoring and physical searches in counterterrorism and
espionage cases. The Justice Department has expanded its use of such
warrants since a favorable FISA court ruling last year, which determined
that the Patriot Act gave federal officials broad new authority to obtain
them.
SECRET WARNINGS
The warrants, cloaked in secrecy and largely ignored by the public for
years, have become a central issue in the ongoing debate over missteps
before the Sept. 11 attacks. The FBI has come under sharp criticism from
lawmakers who say FBI officials misread the FISA statute in the case of
Zacarias Moussaoui, the alleged terror conspirator who was in custody
before the attacks. No warrant was sought in the Moussaoui case, and his
computer and other belongings were not searched until after the attacks.
Even less well known are provisions that allow the attorney general to
authorize these secret warrants on his own in emergency situations. The
department then has 72 hours from the time a search or wiretap is
launched to obtain approval from the FISA court, whose proceedings and
findings are closed to the public.
Officials said that Ashcroft can use his emergency power when he
believes there is no time to wait for the FISA court to approve a warrant.
There are no additional restrictions on emergency warrants, other than
the rules that apply to all FISA applications, officials said.
Ashcroft told lawmakers earlier this month that Justice made more than
1,000 applications for warrants to the secret court in 2002, including more
than 170 in the emergency category. In the previous 23 years, only 47
emergency FISA warrants were issued.
FBI Director Robert S. Mueller III, in similar testimony to the Senate
Judiciary Committee, said, “We can often establish electronic surveillance
within hours of establishing probable cause that an individual is an
appropriate FISA subject.”
“We have made full and very productive use of the emergency FISA
process,” Mueller said.
Sobel and other civil liberties advocates say they are troubled by the
aggressive use of emergency FISAs because it leaves the initial decision up
to the attorney general and allows clandestine searches and surveillance
for up to three days before any court review.
Staff researcher Madonna Lebling contributed to this report.
© 2003 The Washington Post Company
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