Senate Judiciary Committee lawmakers took aim Tuesday at the FBI's misuse of anti-terrorism rules that Congress enacted weeks after the Sept. 11, 2001, terror attacks.
"The lack of professionalism in applying the law has been scandalous," said Sen. Arlen Specter, R-Pa., who wrote a Senate Judiciary Committee report with Sens. Patrick Leahy, D-Vt., and Charles Grassley, R-Iowa.
"The real question is if the FBI is capable of carrying out a counterintelligence effort," Specter said.
By virtue of the USA Patriot Act, the FBI has ample resources to spy on individuals within the United States that are suspected of possible terror links. They are given permission through expanded authority of the Foreign Intelligence Surveillance Court of Review, a secret court that previously granted warrants only in foreign surveillance cases, but now hands out permission to snoop on criminal activities at home.
In November, a panel of federal judges ruled for the Justice Department in an appeal by the court itself saying DOJ was overstepping its bounds in making requests for wiretap and other surveillance powers.
In their report, the lawmakers contend that the Justice Department and FBI are guilty of excessive secrecy, inadequate training, weak information analysis and the stifling of internal dissent in using the FISA court.
At the same time, they suggested that the bureau had not used the FISA court to its full potential, suggesting that in the case of Zacarias Moussaoui, the only person accused in the United States of conspiring with the Sept. 11 hijackers, FBI headquarters thwarted Minneapolis agents seeking a FISA warrant to search Moussaoui's laptop computer and belongings before the attack.
"Sept. 11 might well have been prevented," Specter said. "What are they doing now to prevent another 9/11?"
Grassley said closed Senate hearings on the Moussaoui case revealed that the problem was not the parameters of the law, but the inability of two supervisors who handled the case to understand how FISA works, and the failure of a senior FBI attorney to provide the legal definition of "probable cause," an element needed to obtain a FISA warrant.
"The FBI's difficulties in properly analyzing and disseminating information in its possession caused it not to seek FISA warrants that it should have sought," the report concluded.
Justice Department spokeswoman Barbara Comstock said the department "has fully addressed the FISA problems that occurred almost entirely prior to this administration."
She said the report was "old news" and quoted Judge Royce Lamberth, the former presiding judge of the FISA court, as saying that FISA applications are consistently "well-scrubbed" by the attorney general and his staff.
Whether the court's warrants are doing the job is cause for dispute. Five people accused of conspiring to help Al Qaeda forces fight U.S. troops in Afghanistan are in court in Portland, Ore. Their attorneys contend that their case should be thrown out because the evidence was unconstitutionally obtained under secret FISA warrants.
Leahy, Grassley and Specter are introducing the "Domestic Surveillance Oversight Act," a measure under which Congress would oversee FBI surveillance of Americans and government surveillance of public libraries. It also would check on FISA's use in criminal cases and disclose the secret rules of the FISA court to Congress.
The report was the first comprehensive congressional oversight of the FBI in decades and "demonstrates the pressing need for reform in the FBI," Leahy said in discussing the new bill.
The senators' report was the second in two days critical of the FBI. On Monday the Justice Department's inspector general said the FBI left the clear impression of retaliation when it passed over for promotion an FBI manager who had criticized the bureau on national television.
The Associated Press contributed to this report.