FBI to Get Bigger Role in War on Terror

The L.A. Times reports that the Obama Administration is giving the FBI a bigger role in fighting terrorism.

Bureau agents will gather evidence to ensure that criminal prosecutions of alleged terrorists are an option. The move is a reversal of the Bush administration's emphasis on covert CIA actions.

Under the "global justice" initiative, which has been in the works for several months, FBI agents will have a central role in overseas counter-terrorism cases. They will expand their questioning of suspects and evidence-gathering to try to ensure that criminal prosecutions are an option, officials familiar with the effort said.

Here's the Government's page on the Global Justice Initiative. Its mission: "the efficient sharing of data among justice entities." [More....]

While I prefer cases to be brought in federal criminal courts, I don't think such mass information sharing is good. The wall between intelligence-gathering agencies and law enforcement served a useful purpose. It prevented an end-run around the Fourth Amendment.

Take FISA. Unlike Title III interceptions, 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.

The information obtained under FISA warrants was intended to be used for intelligence gathering, not criminal prosecution. Thus, there were restrictions on sharing it and Congress, in enacting FISA, didn't require the 4th Amendment standard.

The ACLU explained here:

Legally, the wall has its origins in the abuses of the McCarthy and Watergate eras, when FBI, CIA and military intelligence agents used foreign intelligence-gathering as the justification for spying on and harassing political protesters and dissidents. After this pattern of abuse was revealed during the 1976 Church Committee hearings, Congress passed the Foreign Intelligence Surveillance Act in 1978.

The act was designed to give America's counter-intelligence and counterterrorism investigators -- our domestic spies and spy-hunters -- broad power to gather and analyze information about potential threats to national security, unfettered by constitutional constraints. It was intended to keep criminal investigators -- our federal detectives -- from using these foreign intelligence tools to sidestep the Fourth Amendment and other safeguards against government abuse of innocent people.

Now, with the FBI and law enforcement able to share intelligence information, and the FBI taking a greater role in intelligence gathering, it will get evidence obtained from FISA wiretaps and intrusions that would not be sanctioned by criminal courts, and that evidence will be used to bring charges in federal criminal court.

With the Global Initiative, information sharing will increase. One thing we need , as David Cole has argued:

[G]iven FISA's increased use in criminal prosecutions, it should be amended to permit defendants in those prosecutions access to the FISA applications to challenge the warrant's validity. We may well need FISA, but FISA also needs to be held accountable to the adversary process, particularly as it becomes unmoored from its initial justification, and instead becomes an end-run around the Fourth Amendment in criminal investigations.

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    by Socraticsilence on Thu May 28, 2009 at 04:23:13 PM EST
    While this could (and unfortunately probably will) lead to FBI overreach- shifting the burden of fighting terrorism from the military to law enforcement is the right thing and what we should have done in the first place (think about the origin of many of the horror stories about detainee abuse at Gitmo- FBI complaints, if they'd been in charge all along many of these abuse could have been avoided).