Hearing examines secret government wiretap

By P. MITCHELL PROTHERO  |  Sept. 10, 2002 at 4:28 PM
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WASHINGTON, Sept. 10 (UPI) -- The anti-terror law passed following the Sept. 11 terror attacks that encouraged the Justice Department to pursue interpretations of the law governing secret wiretaps drew the ire of the Senate Judiciary Committee in a Tuesday hearing.

The hearing was held after the secret court that oversees such investigations took the unprecedented step of assailing the U.S. Department of Justice for past abuses.

The Senate Judiciary Committee, led by Chairman Patrick Leahy, D-Vt., held a hearing to examine the USA Patriot Act's effect on the Foreign Intelligence Surveillance Act, which was passed in the 1970s to curb abuses by intelligence agencies.

In May, a panel of federal judges released a sharply worded attack on the honesty and candor of the affidavits filed by federal law enforcement and intelligence officials to procure warrants. The information derived from such wiretaps is supposed to be used only for national security purposes, not criminal cases, and the anonymous judges accused agents of giving information to prosecutors for criminal cases. The judges also accused agents and prosecutors of lying in affidavits to obtain such warrants.

Although many of the abuses occurred in previous administrations, Leahy noted that the streamlined process that led to the USA Patriot Act might have made it more difficult for Congress to perform its oversight function to prevent the abuses noted by the court. Leahy also noted that the opinion registered by the court did not become public until his committee demanded it in August, despite being unclassified.

"Without this pressure to see the opinion, the senators who wrote and voted on the very law in dispute would not have known how the Justice Department and the FISA court were interpreting it," Leahy said. "The glimpses offered by this unclassified opinion raise policy, process and constitutional issues about implementation of the new law."

The criticisms came as the court rejected the Justice Department's interpretation of the new law that the department says can allow information to be used for criminal investigations. On Monday, a secret appellate court met for the first time to hear the Justice Department appeal of the ruling. Leahy also demanded that a transcript of those arguments be released immediately.

Despite the court's ruling that Justice was misapplying the effect of the new law, the committee's ranking Republican said it was the clear intent of the new law to allow use of FISA wiretaps in criminal cases.

"Based on these provisions, it is clear that Congress intended to allow greater use of FISA for criminal purposes; and to increase the sharing of intelligence information and coordination of investigations between intelligence and law enforcement officials," Sen. Orrin Hatch, R-Utah, said.

A Justice Department official said a U.S. citizen or resident alien cannot be the target of a FISA warrant unless the government shows probable cause the person is engaged in terrorist planning.

The debate, however, is about how to interpret "terrorism."

"The Patriot Act changed the old law, allowing the intelligence purpose (of a wiretap) to drop from primary to significant, and correspondingly allowing the law enforcement purpose to rise from significant to primary," said Associate Attorney General David Kris. "What that means at the ground level is that more coordination between intelligence and law enforcement officials should be tolerated, because even if a court would find that excessive coordination made law enforcement the primary purpose, the surveillance is still lawful under FISA."

Whether this is the view of the courts has yet to be decided. But it is not the view of Leahy, whose committee passed and authored the new law.

"That was not and is not my belief," he said. "We sought to amend FISA to make it a better foreign intelligence tool," he said. "But it was not the intent of those amendments to fundamentally change FISA from a foreign intelligence tool into a law enforcement tool. ... Indeed, to make such sweeping changes in FISA would have required changes in far more parts of the statute than were affected by the USA Patriot Act."

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