Concerns Raised About FBI's Broader Use of Counterterrorism Tools

By T Chris

An overhaul of the FBI's counterterrorism policies in response to the Patriot Act "marks the final step in tearing down the legal wall that had separated criminal and intelligence investigations since the spying scandals of the 1970s" according to senior FBI officials. The new policies require criminal and intelligence investigators to work together in terrorism cases, opening the door to investigative tools that were unavailable to criminal investigators prior to the Patriot Act.

The result is that the FBI, unhindered by the restrictions of the past, will conduct many more searches and wiretaps that are subject to oversight by a secret intelligence court rather than regular criminal courts, officials said. Civil liberties groups and defense lawyers predict that more innocent people will be the targets of clandestine surveillance.

New York lawyer Joshua Dratel, who has filed briefs in opposition to the FBI's anti-terrorism policies, warns that the new polices "will result in a funneling of all cases into an intelligence mode" providing criminal investigators with "an end run around the Fourth Amendment."

Others share Dratel's concerns.

To civil libertarians and many defense lawyers, the changes pose a threat to the privacy and due-process rights of civilians because they essentially eliminate, rather than merely blur, the traditional boundaries separating criminal and intelligence investigations. As a result, these critics say, FBI agents and federal prosecutors will conduct many more searches and seizures in secret, as allowed under intelligence laws, rather than being constrained by the rules of traditional criminal warrants.

While declining to provide details, the FBI claims that the new policies have helped it to disrupt plans for terrorist attacks overseas and to uncover a "terrorist sleeper cell" in the United States. Whether the FBI could have done so without giving domestic criminal investigators the ability to conduct searches and wiretaps under the oversight of a secret intelligence court will remain unclear as long as the FBI is unwilling to disclose the methods used to investigate those unidentified targets.

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