US Steps Up Secret
Surveillance *
An Impeachable Offense
Washington Post
By Dan Eggen and Robert O'Harrow Jr.
Washington Post Staff Writers
Monday, March 24, 2003; Page A01
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.
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 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.
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.
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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