FISA Court Chided Justice Dept. On
Dan Eggen and Susan Schmidt
Washington Post Staff Writers
Friday, August 23, 2002; Page A01
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
Authorities also improperly shared intelligence information with agents and
prosecutors handling criminal cases in New York on at least four occasions, the
The department discovered the misrepresentations and reported them to the
FISA court beginning in 2000.
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
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
"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.
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.
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
In Moussaoui's case, the FBI did not seek an 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
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
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.
© 2002 The Washington Post Company