Senators complained Tuesday that the Justice Department is trying to assert more authority in federal wiretap cases than it was authorized to have under last year's USA Patriot Act.
In a Senate Judiciary Committee hearing Tuesday, senators pointed to a recently declassified May 17 ruling by the Foreign Intelligence Surveillance Court of Review, which said the Justice Department's interpretation of its wiretap powers under the Patriot Act were wrong and had overreached the original intent of the Foreign Intelligence Surveillance Act.
"The glimpses offered by this unclassified opinion raise policy, process and constitutional issues about implementation of the new law," said Senate Judiciary Chairman Patrick Leahy, D-Vt.
But Justice Department officials say that they need new wiretap authority to chase down multi-layered terror cells whose existence may first be discovered through criminal leads that are seemingly unrelated to terror plots.
"What's at stake here really is the government's ability, effectively to protect this nation against foreign terrorists and espionage threats," said David Kris, associate deputy attorney general.
The FISA court was set up in 1978 as a "secret" appellate court charged with granting search warrants in foreign surveillance cases, but not average criminal activities at home. The court, which meets on the sixth floor of the Justice Department, has denied only one out of the 10,000 applications it has received from the feds since its creation.
After the Sept. 11 attacks, Congress made it easier for FISA to rule on warrant cases, allowing for such secret warrants even if foreign security matters were only a "significant" piece of the case, and the rest were criminal.
That change in the law prompted the Justice Department to rewrite its guidelines for the new wiretap laws to allow for warrant applications in which criminal activity is a "primary" reason for the surveillance. It says this was the true interpretation of the new guidelines under the Patriot Act.
Now the Justice Department says the court, and several senators, went too far.
In May, the court refused to give the Justice Department certain powers that might blur the line between criminal law enforcement and national security.
The court wrote that the new guidelines were "not reasonably designed" to safeguard the privacy of Americans and allowed for the misuse of information in criminal investigations.
"These procedures cannot be used by the government to amend the [surveillance] act in ways Congress has not," the court wrote.
It also admonished the department for making more than 75 errors in applications for top-secret espionage and terrorism warrants during the eight years of the Clinton administration. Applications can never be disputed by the defendants named in the requests, which are all classified.
On Monday, the court heard an appeal from the Justice Department to let it continue its pursuit of criminal warrants.
"In our view, [the court] incorrectly interpreted the Patriot Act, and the effect of that incorrect interpretation is to limit the kind of coordination that we think is very important," Justice Department spokeswoman Barbara Comstock said.
What will come out of the court's Monday meeting may never be made public, but the dispute was enough for some Democratic senators to lash out at the department on Tuesday, suggesting that the department was making a grab for more power at the expense of citizens' constitutional rights.
"We sought to amend FISA to make it a better foreign intelligence tool. We did not amend FISA to make it a better law enforcement tool," Leahy said. "We did not seek to obliterate the line between the two."
"In my mind there has been a skewing, Mr. Chairman, of what we set up," added Sen. Diane Feinstein, D-Calif.
Republicans, however, argued that the very secrecy of FISA has not allowed them to get the full story. They warned that they did not want to overreact and then weaken the laws, putting the nation at even greater risk than prior to Sept. 11.
"Our intelligence gathering agencies must be able to communicate and share information," said Sen. Mike DeWine, R-Ohio, adding that he believes that FISA doesn’t give law enforcement enough powers.
"Some of us believe … that the interpretation of the original FISA law has become tighter and tighter and more burdensome over the years," he said. "I believe that the interpretation may have affected our national security."