U.S. secret surveillance on rise
By Shannon McCaffrey
WASHINGTON - The government's use of secret surveillance warrants to
track spies and terrorists surged to a record high in 2003, surpassing
for the first time the number of wiretaps sought by law enforcement in
traditional criminal cases.
The new figures released Saturday show the extent to which the Justice
Department and the FBI have shifted their focus to battling terrorism
in the wake of the Sept. 11 attacks and, in the process, turned to the
nation's secret "spy court" for legal permission to do so.
"There's been a fundamental change in the way the government conducts
surveillance," said David Sobel, general counsel for the Electronic
Privacy Information Center. "And the result is a lot more secrecy and
lot less accountability."
Federal agents sought 1,727 warrants from the Foreign Intelligence
Surveillance Court for electronic eavesdropping and physical searches
last year, according to a Justice Department filing with Congress.
Just four applications were rejected, although two of them were later
revised and approved. The number of so-called FISA warrants jumped by
500 from 2002 and has almost doubled since 2001 when 934 applications
were approved.
By comparison, there were 1,442 wiretap petitions in federal and state
courts for crimes like drugs and racketeering, according to a separate
report from the Administrative Office of U.S. Courts.
Attorney General John Ashcroft said the new FISA figures show the
Justice Department "is deploying its legal resources to uncover and
prevent terrorist attacks on Americans."
"To keep the United States and its people safe, it is critical that
the Department of Justice use every legal means to detect, deter and
disrupt foreign terrorists and their activities here in America,"
Ashcroft said.
But critics of the government's surveillance efforts called the sharp
increase worrisome because the work of the FISA court is conducted in
secret and allows a lower standard of proof. It's generally tougher
for a prosecutor to get permission for traditional wiretaps because
they must demonstrate that there is probable cause that a suspect
engaged in a crime. There's no such requirement when agents are
seeking to gather intelligence from a suspected spy or terrorist.
"It's alarming," said Timothy Edgar, legislative counsel for the
American Civil Liberties Union. "We now know that most government
surveillance today is supervised by a secret court that does not
operate under the parameters of probable cause."
Indeed, the number of FISA applications has grown so dramatically that
a recent report by the commission investigating the Sept. 11 attacks
warned that a bottleneck had developed at the Justice Department,
where federal prosecutors had fallen behind in processing the deluge
of applications.
Passed by Congress in 1978, the Foreign Intelligence Surveillance Act
created a new court to oversee highly sensitive law enforcement
activities related to espionage or terrorism. The Patriot Act, passed
in the aftermath of the Sept. 11 attacks, broadened the government's
ability to seek warrants through the secretive 11-member court by
essentially knocking down the once-sacrosanct wall that divided
intelligence and law enforcement.
The Patriot Act has become controversial, with critics accusing it of
infringing on civil liberties. President Bush has said it is essential
to the war on terrorism and, in a recent series of public appearances,
urged Congress to renew some portions of the law that are set to
expire in 2005.
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