[Peace-discuss] Bad craziness in DC

[Dlind49 at aol.com]

THE WESTERN FRONT

Truth and Justice 
Government agents who mislead federal judges are the real threat to civil 
liberties. 

BY BRENDAN MINITER 
August 26, 2002 

  (James Taranto is on vacation; Best of the Web Today returns Sept. 3. In 
the meantime, e-mail subscribers are receiving selections from 
OpinionJournal's other columnists and contributors.) 
Attorney General John Ashcroft is in Democratic crosshairs again. This time 
Reps. Jerrold Nadler and Maxine Waters were accusing him of undermining 
American civil liberties. And this was news!

Ostensibly, the reason for the attack was a ruling by a secret court saying 
the Justice Department was going too far in investigating and prosecuting 
potential terrorists. But the real news here is that America is finally 
getting an open airing of heretofore secret federal proceedings that are 
supposed to draw the line between run-of-the-mill criminal investigations and 
those investigations aimed at uncovering terrorists and spies. 

So far it looks like the government is doing a better job of protecting civil 
liberties than it did before Sept. 11. 

The problem the Foreign Intelligence Surveillance Court found was in the 
Justice Department's interpretation of the USA Patriot Act. Mr. Ashcroft's 
team says that act allows them to lower the wall between criminal 
investigations and intelligence/espionage/terrorist investigations. The court 
says using information gathered in an intelligence investigation is a serious 
erosion of civil liberties, which was not contemplated by the Patriot Act.

This is an important issue because Americans are subject to criminal 
investigations. Those investigations therefore put a heavy burdens of proof 
on law enforcement officers, such as proving probable cause, before getting a 
search warrant. 

Intelligence investigations, however, don't have these civil liberty 
protections. Investigators need only show evidence that a person may be 
involved in gathering information for a "foreign power," which includes al 
Qaeda. And search warrants are much broader for intelligence investigations, 
which allow agents to search homes or businesses or use wire taps, read 
e-mail and regular mail for months. And there is no natural check on this 
power, even the target of an investigation is often blissfully unaware of 
snooping federal agents.

Often investigators find evidence of criminal activity, but are forbidden 
from sharing it with criminal investigators or prosecutors. Too often this 
means one team of federal investigators knows who's behind a crime while 
another team fruitlessly tries to put the pieces together. 

That's the legal framework the Foreign Intelligence Surveillance Court hopes 
to keep intact. 





Of course, the court knows full well of the dangers of giving federal 
investigators a long leash. The bulk of the 27-page ruling details a history 
of abuse of the Foreign Intelligence Surveillance Act. It quickly becomes 
clear reading Judge Royce C. Lamberth's decision that the Clinton 
administration was not as mindful of protecting civil liberties as the law 
required. In at least 74 cases the FBI under Bill Clinton presented the court 
with misleading or outright false information in seeking search and 
surveillance warrants. A 75th case, begun under the Clinton administration 
and carried over into President Bush's term, also provided shoddy 
information. 
This is a serious transgression. Serious enough that at least one FBI agent 
was barred from appearing before the court. Lowly agents aren't the only ones 
in the hot seat. The FBI director must personally attest to the accuracy of 
information present to attain search warrants. This is essential to the 
fidelity of the proceedings of a secret court, for the court has little to 
rely on but what federal agents tell them. That information, therefore, not 
only has to be legally accurate, it must accurately reflect the broader 
picture.

In these 75 cases, clearly the system failed. In one case the FBI director's 
certification of the facts erroneously said the target of the investigation 
was not also the target of a criminal investigation. In another case 
statements concerning the separation of overlapping criminal and intelligence 
investigations were erroneous and misleading. Of course, using false 
statements to get a broad and invasive warrant is exactly how agents abusing 
their power would circumvent legal safeguards. This is exactly the type of 
abuse the Foreign Intelligence Surveillance Court--created in the wake of 
Richard Nixon in the 1970s--was designed to prevent.

This is the background Judge Lamberth cites in turning down the Justice 
Department's request to open channels of communication between federal agents 
conducting criminal and intelligence investigations. After years of lying to 
the court, it's not surprising the court turns around and tells the feds says 
no more power for you.





But that's not the whole picture painted by the ruling. The reason we, and 
the court, know of these problems is the Justice Department came clean. 
Beginning in March 2000 officials notified the court of problems. In 
September of that year--in the run up to the presidential election--the 
Justice Department pegged the number of cases with misleading or false 
information at 75--as it turns out all of those cases were "related to major 
terrorist attacks directed at the United States" such as the planned 
millennium attacks and the bombings of American embassies in Africa. 
In March 2001--barely two months after George W. Bush took office--the 
Justice Department came forward with more examples. The problem highlighted 
this time was that in some instances there wasn't a "wall" separating 
criminal from intelligence investigations. In a case cited by Judge Lamberth, 
agents investigating under the lighter FISA rules were on the same squad as 
agents seeking criminal prosecutions. 

This represents more than a mea culpa for the Clintonites before leaving town 
and a look what the last administration did by the Bush administration. It's 
a new Justice Department strategy. Instead of trying to circumvent the rules, 
the feds are trying to openly stake out new rules that provide them with 
reasonable procedures to thwart terrorists. 

After coming clean, the next step was to correct the abuse of power. So new 
safeguards were developed in April 2001 that are still in place. And Judge 
Lamberth praised John Ashcroft earlier this year for his vigilance and 
thoroughness in certifying facts presented to the court. 

Then came an open back-and-forth in designing new rules to conduct dual 
investigations. Judge Lamberth notes "The government makes no secret . . . 
[of] its interpretation of the [USA Patriot] Act's new amendments which 
'allows FISA to be used primarily for a law enforcement purpose.' " And this 
ruling is the first ever to be published by the court, and the judges promise 
it won't be the last--although it only found its way into the public sphere 
because of prodding by the Senate Judiciary Committee. The Justice Department 
is appealing the ruling. 





Whatever the outcome, John Ashcroft, by openly raising this issue with the 
court, is on course to stake out a reasonable approach to combating terrorism 
while also giving the court the ability to spot and put an end to any abuses 
of power. It's much easier to limit power granted to an agent officially, 
than to wade through false and misleading information.
Letting a street crime go unpunished is one thing. But on Sept. 11 Americans 
realized there can be a steeper price to pay for building an impenetrable 
wall between two concurrent investigations. A jailed terrorist--even one 
serving time for a minor crime--can't commit mass acts of violence. That's 
why, federal prosecutors say, Zacarias Moussaoui wasn't one of the Sept. 11 
hijackers. Of course, the feds still stumbled over the Moussaoui 
investigation, refusing to search his computer until after the attacks. But 
future investigations could provide agents with clues to upcoming attacks 
while a potential terrorist cools his heels in the slammer. Ideally, even his 
cohorts would remain unaware that their plans have been compromised until 
they're rounded up by federal agents.

That's the kind of muscular approach the Justice Department says the Patriot 
Act empowers it to do--and that combating terrorism will ultimately require.

Mr. Miniter is assistant editor of OpinionJournal.com. His column appears 
Mondays.