Ashcroft Triples Use of Secret FISA Warrants
The Los Angeles Times Wednesday reports that
"the Justice Department has stepped up use of a secretive process that enables the attorney general to personally authorize electronic surveillance and physical searches of suspected terrorists, spies and other national-security threats without immediate court oversight. Attorney General John Ashcroft told the Senate Judiciary Committee Tuesday that he had authorized more than 170 such "emergency" searches since the Sept. 11 attacks-- more than triple the 47 emergency searches that have been authorized by other attorneys general in the last 20 years.Ashcroft has been accomplishing this by using FISA (The Foreign Intelligence Security Act of 1978) to get the warrants, instead of going through the federal criminal justice system--where a federal judge must find probable cause of criminal activity for a warrant. Aside from the number of secret wiretap and search applications, Ashcroft is pushing the limits of the FISA statute in other ways.
Since Sept. 11, officials have seized on a provision that allows them to launch emergency searches signed only by the attorney general. The department must still convince the FISA court that the search is justified-- but officials have 72 hours from the time the search is launched, and such requests are almost always granted.We disagree that the Justice Department must convince the FISA Court that the search is justified. All they have to do is submit an application and make the allegation that one of the purposes for which the warrant is sought is intelligence gathering and that it is non-trivial. As Reporter Vanessa Blum wrote in this Legal Times article
In a scathing opinion made public Aug. 22, the FISA court ... ruling points to more than 70 cases in the late 1990s in which FISA judges were misled about coordination between law enforcement and intelligence agents. ...The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient. "Ashcroft has claimed he has new powers as a result of changes in the Patriot Act, which changes he interprets as providing that applications for FISA surveillance warrants can have criminal investigative rather than intelligence gathering purposes as their principal goal. This interpretation is contrary to the intent of Congress in passing the Patriot Act as we have previously argued in-depth here. More from Reporter Vanessa Blum :
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