From the WSJ Opinion Archives
THE WESTERN FRONT
Truth and Justice
Government agents who mislead federal judges are the real threat to civil liberties.
Attorney General John Ashcroft is in Democratic crosshairs again. This time Reps. Jerrold Nadler and Maxine Waters were accusing him of undermining American civil liberties. And this was news!
Ostensibly, the reason for the attack was a ruling by a secret court saying the Justice Department was going too far in investigating and prosecuting potential terrorists. But the real news here is that America is finally getting an open airing of heretofore secret federal proceedings that are supposed to draw the line between run-of-the-mill criminal investigations and those investigations aimed at uncovering terrorists and spies.
So far it looks like the government is doing a better job of protecting civil liberties than it did before Sept. 11.
The problem the Foreign Intelligence Surveillance Court found was in the Justice Department's interpretation of the USA Patriot Act. Mr. Ashcroft's team says that act allows them to lower the wall between criminal investigations and intelligence/espionage/terrorist investigations. The court says using information gathered in an intelligence investigation is a serious erosion of civil liberties, which was not contemplated by the Patriot Act.
This is an important issue because Americans are subject to criminal investigations. Those investigations therefore put a heavy burdens of proof on law enforcement officers, such as proving probable cause, before getting a search warrant.
Intelligence investigations, however, don't have these civil liberty protections. Investigators need only show evidence that a person may be involved in gathering information for a "foreign power," which includes al Qaeda. And search warrants are much broader for intelligence investigations, which allow agents to search homes or businesses or use wire taps, read e-mail and regular mail for months. And there is no natural check on this power, even the target of an investigation is often blissfully unaware of snooping federal agents.
Often investigators find evidence of criminal activity, but are forbidden from sharing it with criminal investigators or prosecutors. Too often this means one team of federal investigators knows who's behind a crime while another team fruitlessly tries to put the pieces together.
That's the legal framework the Foreign Intelligence Surveillance Court hopes to keep intact.
Of course, the court knows full well of the dangers of giving federal investigators a long leash. The bulk of the 27-page ruling details a history of abuse of the Foreign Intelligence Surveillance Act. It quickly becomes clear reading Judge Royce C. Lamberth's decision that the Clinton administration was not as mindful of protecting civil liberties as the law required. In at least 74 cases the FBI under Bill Clinton presented the court with misleading or outright false information in seeking search and surveillance warrants. A 75th case, begun under the Clinton administration and carried over into President Bush's term, also provided shoddy information.
This is a serious transgression. Serious enough that at least one FBI agent was barred from appearing before the court. Lowly agents aren't the only ones in the hot seat. The FBI director must personally attest to the accuracy of information present to attain search warrants. This is essential to the fidelity of the proceedings of a secret court, for the court has little to rely on but what federal agents tell them. That information, therefore, not only has to be legally accurate, it must accurately reflect the broader picture.
In these 75 cases, clearly the system failed. In one case the FBI director's certification of the facts erroneously said the target of the investigation was not also the target of a criminal investigation. In another case statements concerning the separation of overlapping criminal and intelligence investigations were erroneous and misleading. Of course, using false statements to get a broad and invasive warrant is exactly how agents abusing their power would circumvent legal safeguards. This is exactly the type of abuse the Foreign Intelligence Surveillance Court--created in the wake of Richard Nixon in the 1970s--was designed to prevent.
This is the background Judge Lamberth cites in turning down the Justice Department's request to open channels of communication between federal agents conducting criminal and intelligence investigations. After years of lying to the court, it's not surprising the court turns around and tells the feds says no more power for you.
But that's not the whole picture painted by the ruling. The reason we, and the court, know of these problems is the Justice Department came clean. Beginning in March 2000 officials notified the court of problems. In September of that year--in the run up to the presidential election--the Justice Department pegged the number of cases with misleading or false information at 75--as it turns out all of those cases were "related to major terrorist attacks directed at the United States" such as the planned millennium attacks and the bombings of American embassies in Africa.
In March 2001--barely two months after George W. Bush took office--the Justice Department came forward with more examples. The problem highlighted this time was that in some instances there wasn't a "wall" separating criminal from intelligence investigations. In a case cited by Judge Lamberth, agents investigating under the lighter FISA rules were on the same squad as agents seeking criminal prosecutions.
This represents more than a mea culpa for the Clintonites before leaving town and a look what the last administration did by the Bush administration. It's a new Justice Department strategy. Instead of trying to circumvent the rules, the feds are trying to openly stake out new rules that provide them with reasonable procedures to thwart terrorists.
After coming clean, the next step was to correct the abuse of power. So new safeguards were developed in April 2001 that are still in place. And Judge Lamberth praised John Ashcroft earlier this year for his vigilance and thoroughness in certifying facts presented to the court.
Then came an open back-and-forth in designing new rules to conduct dual investigations. Judge Lamberth notes "The government makes no secret . . . [of] its interpretation of the [USA Patriot] Act's new amendments which 'allows FISA to be used primarily for a law enforcement purpose.' " And this ruling is the first ever to be published by the court, and the judges promise it won't be the last--although it only found its way into the public sphere because of prodding by the Senate Judiciary Committee. The Justice Department is appealing the ruling.
Whatever the outcome, John Ashcroft, by openly raising this issue with the court, is on course to stake out a reasonable approach to combating terrorism while also giving the court the ability to spot and put an end to any abuses of power. It's much easier to limit power granted to an agent officially, than to wade through false and misleading information.
Letting a street crime go unpunished is one thing. But on Sept. 11 Americans realized there can be a steeper price to pay for building an impenetrable wall between two concurrent investigations. A jailed terrorist--even one serving time for a minor crime--can't commit mass acts of violence. That's why, federal prosecutors say, Zacarias Moussaoui wasn't one of the Sept. 11 hijackers. Of course, the feds still stumbled over the Moussaoui investigation, refusing to search his computer until after the attacks. But future investigations could provide agents with clues to upcoming attacks while a potential terrorist cools his heels in the slammer. Ideally, even his cohorts would remain unaware that their plans have been compromised until they're rounded up by federal agents.
That's the kind of muscular approach the Justice Department says the Patriot Act empowers it to do--and that combating terrorism will ultimately require.
Mr. Miniter is assistant editor of OpinionJournal.com. His column appears Mondays.
