FISA Court may not trust the FBI, and they likely have a point.

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Secret Court Rebukes Louis Freeh
By Reed Irvine and Cliff Kincaid
September 10, 2002



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The Foreign Intelligence Surveillance Act (FISA) was passed to make it easier for the FBI to get search warrants and wiretapping permits in espionage cases. These have to be approved by a special FISA court. That court recently released a ruling that some thought was a rebuff to the Bush administration and its attorney general. Actually it was a stinging rebuke to former FBI Director Louis Freeh. A page-one article in the Washington Post didn’t mention Freeh’s culpability, but it corrected that omission in an editorial.

The court’s published ruling came in the wake of the FBI’s failure to obtain a FISA warrant to search the belongings of Zacarias Moussaoui, the suspected twentieth hijacker. The FBI claimed that it was restrained from doing so by high walls separating intelligence and criminal investigations. The USA Patriot Act passed after nine/eleven eased some restrictions on the government’s ability to obtain FISA warrants.

The Justice Department sent its proposed revisions to FISA procedures to the court. It wanted fewer restrictions on the use of information gathered in criminal cases and approval of wider involvement of criminal prosecutors in FISA cases. The court modified the Justice Department’s proposals and opted to retain the original purpose of the act— getting foreign intelligence information. The court pointed out that it had been more than flexible in its rulings on the intermingling of intelligence and criminal interests. What clearly drove the court’s thinking, however, was its distrust of the FBI, primarily due to the bureau’s actions when Louis Freeh was its director. The FBI more than doubled FISA applications on his watch. The bureau claims this was in response to the rising threat of terrorism, but privacy advocates believe that the FBI and Justice have tried to use FISA to circumvent the higher standards required to get warrants in criminal cases.

The court’s ruling reinforced these fears. It asserted that the FBI made false statements or omitted key facts in more than seventy-five FISA applications during Freeh’s tenure, including one signed by Freeh himself. The FBI had lied in its efforts to convince the court to grant warrants for surveillance that the court characterized as highly intrusive and invasive.

The court cited some of the reasons for the FBI’s abuse of FISA. Prosecutors preferred to use FISA because these warrants were easier to obtain than wiretaps in ordinary criminal cases. Also FISA applications and warrants are not subject to discovery in the event of a criminal prosecution, because the Attorney General could simply claim "harm to national security" to deny these materials to the accused.

The court was also miffed at the Office of Professional Responsibility at the FBI and Justice. Over a year ago, it demanded explanations of some FBI misdeeds. It pointed out that the promised reports had not been delivered. Most of the misdeeds occurred under Freeh, who served for seven years under Clinton and six months under Bush. But the failure to explain those misdeeds falls on his successor, Robert Mueller.

Reed Irvine can be reached at [email protected]


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