IP: Anti-Terrorism Powers Grow

[Dave Farber <farber () cis upenn edu>]

From: jei () zor hut fi
Date: Mon, 1 Feb 1999 21:30:44 +0200 (EET)


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For education and discussion. Not for commercial use.



Anti-Terrorism Powers Grow

'Roving' Wiretaps, Secret Court Orders 
Used to Hunt Suspects

By Vernon Loeb
Washington Post Staff Writer
Friday, January 29, 1999; Page A23 

As President Clinton proposes massive funding increases for
counterterrorism, federal law enforcement agencies have already
received substantial new legal authority to fight suspected
terrorists with "roving" wiretaps and secret court orders for
tracing telephone calls and obtaining business records.

The expanded powers, high on the FBI's legislative wish list for
years, were passed by Congress last fall as part of the
intelligence authorization act. Michael Woods, chief of the FBI's
national security law unit, said this week that "any one of these
extremely valuable tools could be the keystone of a successful
operation" against sophisticated foreign terrorists and
intelligence operatives.

But the American Civil Liberties Union (ACLU) and other privacy
rights activists oppose the expanded law enforcement powers as
unwarranted attacks on the Fourth Amendment, which bars
unreasonable searches and seizures, and say the changes were
enacted by an intelligence conference committee without public
hearings and almost no debate.

Neil J. Gallagher, the FBI's assistant director for national
security, said the expanded powers can only be exercised with
court approval. "We have to go to court and present the facts,"
Gallagher said. "It is not as though the FBI is using intrusive
techniques" on its own authority.

"Roving wiretaps" enable the government to eavesdrop on calls
made by a suspect from multiple phones. Although legal authority
for the wiretaps has existed since 1986, the courts have allowed
few such intercepts because a standard requires the government to
prove a suspect is intentionally thwarting a conventional wiretap
by frequently changing phones. The new "roving wiretap"
provision, applicable in all criminal investigations and not
limited for use against terrorist suspects, removes "intent"  
from the legal standard and requires the government to show only
that a target's use of multiple phones has the "effect"  of
preventing interception.

Other new provisions for obtaining business records and tracing
telephone calls amend a little-known statute called the Foreign
Intelligence Surveillance Act (FISA). The law, passed 21 years
ago, established a secret federal court to approve wiretap
requests made by the Justice Department against suspected foreign
terrorists and intelligence agents without probable cause that a
crime has been committed.

Secret FISA wiretaps, search warrants and orders can be used
against U.S. citizens only in cases where the government can show
there is a reason to believe that an American is engaged in
espionage or terrorism on behalf of a foreign power.

With the rise of international terrorism, the FISA framework has
become a major source of information for intelligence- gathering
and evidence for law enforcement. A secret FISA search warrant
was granted in March 1995 to search a New York apartment building
inhabited by members of Aum Shinrikyo, the Japanese religious
cult that unleashed a sarin gas attack in the Tokyo subway
system, even though its followers were not suspected of any crime
in the United States. Critical evidence in both the World Trade
Center bombing case and the Aldrich H.  Ames spy case also came
from warrants and wiretaps granted under FISA.

Today, the secret FISA court grants more wiretaps than all other
federal courts nationwide in criminal cases. In 1997, the FISA
court approved 749 wiretaps; all other federal courts approved
569 wiretaps, federal records show. FISA wiretaps have doubled
since the last year of the Bush administration, records show.

One of the new FISA provisions passed by Congress last year would
enable the Justice Department to obtain from the secret court an
order that would allow agents to obtain the telephone numbers of
all incoming and outgoing calls on any lines used or called by
suspected foreign agents or terrorists.

The other new FISA provision enables the Justice Department to
obtain records from airlines, bus companies, rental car outlets,
storage facilities, hotels and motels used by any suspected
foreign agent or terrorist.

Kate Martin, director of the Center for National Security
Studies, said expanding the government's power under FISA to
fight foreign terrorist threats in the United States dangerously
blurs the line between intelligence-gathering and law
enforcement, especially when individuals charged as spies and
terrorists have no way to challenge the underlying issuance of
FISA warrants and wiretaps used to gather evidence against them.

"They're vastly expanding the traditional nature of what is a
foreign intelligence investigation, and that threatens civil
liberties in my view," she said. "They're trying to put under
foreign intelligence matters that should be handled under the
criminal code. We've already been down that road with disastrous
consequences."

The ACLU, in its analysis, opposed all three provisions, but the
"roving" wiretap amendment topped its list. The provision "would
not only lower the evidentiary standard for a roving wiretap
order, it would also allow the tapping of any phone near the
subject at any time the order is in effect. This includes the
telephones in the private residences of a subject's friends,
neighbors and business associates."

Deputy Attorney General Eric H. Holder Jr., in a recent statement
on "roving wiretaps," said that federal agents can use such an
intercept only to "listen in on those criminally-related
conversations in which the suspect is a party."

As for the new FISA provisions, senior FBI officials said that
Justice Department guidelines make it clear that FISA powers are
not to be used as a way around probable cause to gather evidence
in criminal investigations.

"People can be agents of a foreign power or agents of a foreign
terrorist organization--and we may know that's what they're
doing--but have not yet committed a crime," said FBI's Woods.
"Criminal authorities are not triggered until a crime is
committed. The goal is to be able to not only build cases when we
need to build cases, but prevent terrorist activities."

         © Copyright 1999 The Washington Post Company