[IP] FBI Applies New Rules to Surveillance
FBI Applies New Rules to Surveillance
By Dan Eggen
The FBI has implemented new ground rules that fundamentally alter the
way investigators handle counterterrorism cases, allowing criminal and
intelligence agents to work side by side and giving both broad access to
the tools of intelligence gathering for the first time in decades.
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.
The new strategy -- launched in early summer and finalized in a
classified directive issued to FBI field offices in October -- goes
further than has been publicly discussed by FBI officials in the past and
marks the final step in tearing down the legal wall that had separated
criminal and intelligence investigations since the spying scandals of the
1970s, authorities said.
Senior FBI officials said the changes have already helped the bureau
disrupt plans for at least four terrorist attacks overseas and uncover a
terrorist sleeper cell in the United States, though they declined to
provide details on those cases. The approach also has resulted in a notable
surge in the number of counterterrorism investigations, a statistic that is
classified but currently stands at more than 1,000 cases, officials said.
"With 9/11 as the catalyst for this, what we've done is fundamentally
change the approach we take to every counterterrorism case," FBI terrorism
chief John S. Pistole said in an interview. "This is a sea change for the FBI."
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.
"By eliminating any distinction between criminal and intelligence
classifications, it reduces the respect for the ordinary constitutional
protections that people have," said Joshua L. Dratel, a New York lawyer who
has filed legal briefs opposing government anti-terrorism policies. "It
will result in a funneling of all cases into an intelligence mode. It's an
end run around the Fourth Amendment," which protects citizens from
unreasonable searches, he said.
The overhaul of the FBI's counterterrorism policies began earlier this
year with a classified document called the Model Counterterrorism
Investigations Strategy (MCIS), officials said. The strategy stems from a
November 2002 decision by an intelligence appeals court, which ruled that
the anti-terrorism USA Patriot Act permits intelligence investigators and
criminal prosecutors to more easily share information about terrorism cases.
The MCIS and other rules effectively put that finding into practice by
reworking the way terrorism cases are handled by the FBI, and by requiring
that both criminal and intelligence investigators physically work as part
of the same squads on terrorism investigations, officials said. FBI
officials declined to release copies of the MCIS or a related Oct. 1
directive, citing national security restrictions, but agreed to describe
the outlines of the process.
Under previous FBI protocols, terrorism probes could be opened along two
separate tracks, one for the purposes of developing a criminal case and one
for intelligence gathering. Each was labeled with separate classification
numbers, which govern the way cases are tracked and budgeted within the
FBI. Sharing between the two categories was sharply limited, overseen by
legal mediators from the FBI and Justice Department, and subject to
scrutiny by criminal courts and the secret Foreign Intelligence
Surveillance Court.
Under the new guidelines, all counterterrorism cases are opened under the
same classification number, 315, and are handled from the outset like an
intelligence or espionage investigation, officials said. The structure
allows investigators to more easily use secret warrants and other methods
that are overseen by the surveillance court and not available in
traditional criminal probes, sources said.
All terrorism cases will also be formally run by the counterterrorism
division at FBI headquarters in Washington, rather than by individual field
offices, officials said.
Pistole said that focusing on intelligence gathering will improve the
ability of the FBI to prevent, rather than just investigate, terrorist
attacks. He and other FBI officials also said the new system will result in
less emphasis on bringing criminal charges against suspects in favor of
longer surveillance operations. When charges are eventually brought,
however, prosecutors will be able to use information gathered through
intelligence methods.
"We're still interested in the criminal violations that people may be
involved in," Pistole said. "But in many cases we are going to put that in
the back seat and go down the road until we have all that we need."
Robert M. Blitzer, a former FBI counterterrorism official, said that by
merging the criminal and intelligence sides of counterterrorism cases,
investigators will be able to work more efficiently on cases and avoid
problems that were common before Sept. 11, 2001.
"In the past, it was an absolute cardinal rule that there be a wall
between the two cases," Blitzer said. "Now, you will have much broader
access to see what is going on. You can see the whole scope of things. . .
. We were always afraid that something could slip between the cracks on
both sides under the old system, and that did happen."
In one stark example, FBI lawyers refused to allow criminal agents to
join an August 2001 search for Khalid Almidhar, who had entered the United
States and would later help commandeer the airliner that crashed into the
Pentagon. The lawyers said that information about Almidhar's ties to al
Qaeda obtained through intelligence channels could not be used to launch a
criminal investigation. An angry New York FBI agent warned in an internal
e-mail that was later revealed during congressional hearings that "someday
someone will die" because of the decision.
In another case, the FBI failed to seek an intelligence warrant to search
the belongings of alleged al Qaeda conspirator Zacarias Moussoaui, who had
been detained in Minnesota three weeks before the attacks. The legal
counsel in the FBI's Minneapolis field office said headquarters officials
limited the actions of regular FBI agents in the case because of concerns
about breaching the wall between intelligence and criminal cases.
The FBI's new strategy is the culmination of a series of new rules and
regulations issued since the Sept. 11 attacks to govern terrorism
investigations. Attorney General John D. Ashcroft last month issued new
national security guidelines, for example, that allow the FBI to conduct an
initial "threat assessment" of potential terrorists without firm evidence
of a threat or crime, which is required to open a full investigation.
Ashcroft, FBI Director Robert S. Mueller III and other officials argue
that such changes are necessary to transform the FBI from a reactive law
enforcement agency into one capable of detecting and thwarting terrorist
attacks before they occur. According to a study released this week
by Syracuse University's Transactional Records Access Clearinghouse,
Justice and the FBI have sharply increased the number of terrorism cases
they are pursuing since the 2001 attacks, although most of the 6,400 people
referred to prosecutors were never charged with a crime related to terrorism.
Several civil liberties advocates and defense lawyers said the new FBI
rules appear to encourage agents to ignore constitutional concerns and to
push the boundaries of what is allowed by recent court rulings. Ann Beeson,
a staff attorney at the American Civil Liberties Union, said the system
will encourage prosecutors to rely too heavily on evidence gathered by
secret intelligence methods.
"They're going to use all their foreign intelligence tools, and then
they're going to prosecute people using those tools," Beeson said. "They're
putting this whole class of criminal cases outside the protection of the
Fourth Amendment."
Michael A. Vatis, a former Justice Department and FBI official, said the
changes are necessary but acknowledged the risk that investigators could
overreach. "The principal danger is what the old rules were designed to
avoid: to make sure that the FBI wasn't using intelligence authorities when
they were really just looking to bust bad guys," he said. "There does need
to be good oversight to make sure these new rules are not abused."
Would you like to send this article to a friend? Go to
http://www.washingtonpost.com/ac2/wp-dyn/admin/emailfriend?contentId=A60964-2003Dec12&sent=no&referrer=emailarticle
Visit washingtonpost.com today for the latest in:
News - http://www.washingtonpost.com/?referrer=emailarticle
Politics - http://www.washingtonpost.com/wp-dyn/politics/?referrer=emailarticle
Sports - http://www.washingtonpost.com/wp-dyn/sports/?referrer=emailarticle
Entertainment -
http://www.washingtonpost.com/wp-srv/eg/section/main/index.html?referrer=emailarticle
Travel - http://www.washingtonpost.com/wp-dyn/travel/?referrer=emailarticle
Technology -
http://www.washingtonpost.com/wp-dyn/technology/?referrer=emailarticle
Want the latest news in your inbox? Check out washingtonpost.com's e-mail
newsletters:
http://www.washingtonpost.com/ac2/wp-dyn?node=admin/email&referrer=emailarticle
© 2003 The Washington Post Company
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/