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FBI Gets More Wiretap and Surveillance Authority

The Justice Department is permitted to employ secret wiretapping and surveillance tools against domestic criminals as well as foreign terrorists, federal judges ruled Monday.

The decision marks the latest expansion of FBI spying powers under the USA PATRIOT Act, passed by Congress in the wake of the Sept. 11 attacks.

“This will greatly enhance our ability to put pieces together that different agencies have,” Attorney General John Ashcroft said in response to the ruling by a specially-appointed three-judge panel.

The decision was based on an appeal by the Justice Department to a May ruling by the Foreign Intelligence Surveillance Court of Review. That ruling 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 (FISA).

However, the federal judges said the DOJ was not overstepping its bounds and that it could break down the legal barriers between foreign and domestic intelligence. 

The ruling marks a significant change in how FISA is applied to surveillance cases in the United States. The FISA court was set up in 1978 as a "secret" appellate court charged with granting search warrants in foreign surveillance cases, but not for average criminal activities at home.

Targets of such warrants -- which can be executed with or without the target’s knowledge, thus qualifying them as "secret" in nature -- are blocked access to the case against them in court, and proceedings are closed to the public.

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 is criminal.

That change in the law prompted the Justice Department to take it a step further: it rewrote 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.

In May, FISA said 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.

Senators complained in early September that the Justice Department went too far in its interpretation of the PATRIOT Act.

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.

The three-member judicial panel appointed by Supreme Court Chief Justice William H. Rehnquist agreed, opening the door for more information sharing between foreign and domestic agents and prosecutors, as well as using FISA in cases where domestic criminality was the primary interest.

Ashcroft responded Monday by announcing a number of immediate steps, including development of a computer system to help investigators get quick court approval for surveillance; doubling of the number of FBI attorneys working with surveillance applications; and designation of one lawyer in each U.S. attorney's office as the local point of contact for these cases.

FBI Director Robert Mueller also created a new unit to handle cases brought under FISA.

The American Civil Liberties Union and several other groups spoke out against the ruling Monday. They say the FBI will have even more authority to wiretap phones, track Web traffic, read e-mails and engage in secret searches -- even if the targets have little or nothing to do with terrorism.

"We are deeply disappointed with the decision, which suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants,'' said Ann Beeson, who argued the case for the ACLU.

An appeal to the Supreme Court is unlikely, at least any time soon. The Justice Department is the sole party to the case and, as the victor, had no plans to appeal, officials said. The ACLU and others would have to find another option, such as a criminal case involving intelligence surveillance, to ask the high court for a hearing.

"This is a major constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court,'' Beeson said.

Robert F. Turner, associate director of the Center for National Security Law at the University of Virginia, said the enhanced powers should not unduly infringe on civil liberties.

"The balance we have to make right now is, some decisions might infringe upon some liberties, but on the other hand might cost a lot of lives,'' Turner said.

Reaction was mixed on Capitol Hill. Rep. John Conyers of Michigan, ranking Democrat on the House Judiciary Committee, called the ruling "despicable.”

"Piece by piece, this administration is dismantling the basic rights afforded to every American under the Constitution,'' Conyers said.

But Sen. Charles Grassley, R-Iowa, a senior Republican on the Senate Judiciary Committee, said lawmakers should keep an eye against federal abuse of the new powers, but the measures are necessary today to “untie the government's hands and help prevent terrorist attacks,'' he said.

The Associated Press contributed to this report.