9/11 Commission Member Gorelick Responds to Ashcroft

9/11 Commission member and former Department of Justice official Jamie Gorelick repudiates John Ashcroft's testimony of last week in today's Washington Post:

At last week's hearing, Attorney General John Ashcroft, facing criticism, asserted that "the single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents" and that I built that wall through a March 1995 memo. This is simply not true.

First, I did not invent the "wall," which is not a wall but a set of procedures implementing a 1978 statute (the Foreign Intelligence Surveillance Act, or FISA) and federal court decisions interpreting it. In a nutshell, that law, as the courts read it, said intelligence investigators could conduct electronic surveillance in the United States against foreign targets under a more lenient standard than is required in ordinary criminal cases, but only if the "primary purpose" of the surveillance were foreign intelligence rather than a criminal prosecution.

....The Patriot Act, enacted after 9/11, together with an unprecedented appeal to the Foreign Intelligence Surveillance Court of Review, paved the way for the Justice Department to permit largely unrestricted information-sharing between intelligence and criminal investigators because the law changed the legal standard that had given rise to the guidelines in the first place. The Patriot Act says that electronic surveillance can be conducted in the United States against foreign threats as long as a "significant purpose" -- rather than the "primary purpose" -- is to obtain foreign intelligence.

We're concerned that as a result of the rift between Ms. Gorelick and Mr. Ashcroft, people may assume the sharing of information between intelligence and law enforcment agencies is always a good thing and champion the Patriot Act for allowing it to happen. It's not always a good thing. In fact, it can be a dangerous end run around the Fourth Amendment. Here's some background. First, if Ashcroft had gotten his way, the Patriot Act would have allowed electronic surveillance in cases where foreign intelligence gathering was only "a purpose," not even a "significant purpose." As we reported here:

Along comes the draft of the Patriot Act. Ashcroft initially requested that the requirement that intelligence gathering be the primary purpose of the application be reduced to simply "a purpose" from "the primary purpose." Congress balked and a compromise was worked out. The final Patriot Act language (which is now law) requires FISA court warrants be issued only for applications that allege intelligence gathering is a "significant purpose" of the request.

Ashcroft's twisted interpretation of this change is that law enforcement purposes can now be the primary purpose of a FISA warrant request. And in May, 2002, he approved guidelines providing that prosecutors may "advise intelligence officials on the initiation, operation, continuation, or expansion of FISA searches or surveillance."

...."Civil liberties advocates call the Justice Department's position 'a bait and switch.'" According to [Law Professor Jonathan] Turley, "The whole point of that compromise [with Congress] was to deny use of FISA in investigations that were principally law enforcement. After agreeing to compromise in congressional proceedings, they went on in secret to implement what was originally refused by Congress."

We hope this is clear. It's a complicated issue but the result is that once again Justice is attempting an end-run around our contstitutional right to be free from unreasonable searches and seizures and the Fourth Amendment's and Title III's strict warrant requirements. In other words, if the government gets a FISA court warrant, they don't have to show either probable cause of the commission of a crime or probable cause that evidence of a crime is likely to be uncovered by the intrusion. In a criminal court, such a showing would have to be made before the government could search our homes or businesses or wiretap our phones.

Bottom line: The wall was a good thing, not a bad thing. And under Bush and Ashcroft, it's come tumbling down.

Read this 2002 article by Vanessa Blum,published in Legal Times, for a more journalistic description of the issue.

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