Ashcroft and the FISA Court

(Ashcroft)  In the next few days, we intend to finalize a package of legislative measures that will be comprehensive. Areas covered include criminal justice, immigration, intelligence gathering and financial infrastructure. While the final details are still being discussed, I can highlight a few of the items that we will address in the proposal.

Under intelligence gathering, we want to provide additional tools to collect intelligence on terrorists, including expanded electronic surveillance, search authority and the ability to identify, cease and
forfeit terrorist assets.

Two specific changes we have proposed include: First, current law requires us to obtain a wiretap for a phone number. It does not allow us to obtain a wiretap authority for an individual. Well, with the advances in technology, we need to make sure that our laws are also advancing. We’re proposing that we provide wiretaps so that you can assign the wiretap to the individual,
so that we can gain intelligence from individuals who use multiple telephones and changing cellular phones that move around with individuals.

ASHCROFT: You understand that assigning the authority only to the hardware means that when a person changes hardware, we lose our capacity to surveil. And given the nature and availability of literally disposable telephones in modern society, we need to be able to have the court authority to monitor, not the phone, but the telephone communications of a person and to have that authority stay with the person.

Second, current law requires that we obtain a separate wiretap in each jurisdiction of the country where an investigation is being pursued. We would like to change the law so that one wiretap approval can be obtained for all jurisdictions working on an investigation, particularly given the mobility of individuals and the capacity of individuals who are mobile to communicate. This is a reasonable upgrade in our opportunity to help us curtail and combat the threat.

I want to assure you that in our effort to make sure that law enforcement can gain the intelligence that it needs in order to protect America, we are also mindful of our responsibility to protect the rights and privacy of Americans.

Proposals to expand law enforcement powers to combat terrorism may run into congressional roadblocks after concern was expressed Monday about the possible trampling of constitutional rights.

The worries were expressed as U.S. Attorney General John Ashcroft urged lawmakers to quickly approve a legislative package that would broaden law enforcement surveillance powers and ease restrictions on the ability of U.S. authorities to detain or deport suspected alien terrorists. [snip]

The package outlined by Ashcroft would ease restrictions on wiretaps and search warrant requests. For example, the legislation would allow one court to authorize wiretaps for a number of different jurisdictions.

The measure would also allow federal investigators to seize suspected terrorists’ voice mail messages with a search warrant.

The court also disclosed the FBI acknowledged making more than 75 mistakes in applications for espionage and terrorism warrants under the surveillance law, including one instance in which former Director Louis Freeh gave inaccurate information to judges.

“How these misrepresentations occurred remains unexplained to the court,” the special court said.

The court’s orders, signed by U.S. District Judge Royce Lamberth, were disclosed to the Senate Judiciary Committee, which has raised questions about the Justice Department’s use of wiretap laws in espionage and terrorism cases. [snip]

But the surveillance court, which considers federal search and wiretap requests in secret under the 1978 Foreign Intelligence Surveillance Act, found that Ashcroft’s rules could allow misuse of information in criminal cases. Prosecutors in criminal cases must meet higher legal standards to win approval for searches or wiretaps.

“These procedures cannot be used by the government to amend the (surveillance) act in ways Congress has not,” the court wrote. In its rare public rebuke, it said the Justice Department spent “considerable effort” arguing its case, “but the court is not persuaded.”

The ruling allows the Justice Department to get wiretap authority in a secret intelligence court, under more relaxed standards than used in a regular criminal court, even if the investigation is not exclusively concerned with terrorism.

Under old rules, the intelligence court could only grant wiretap warrants in cases where terrorism was the sole focus.

In the 56-page opinion overturning a May decision by the ultra-secret Foreign Intelligence Surveillance Court, the three-judge appeals panel said the expanded wiretap guidelines sought by Attorney General John Ashcroft under the new USA Patriot Act law do not violate the Constitution.