Background: Secret Court

RAY SUAREZ:

A secretive little known court goes public. The Foreign Intelligence Surveillance Act court, also known as FISA, reviews government requests to spy on suspected foreign agents or terrorists. Judges on the court, in documents released yesterday, say they have been misled by the FBI. They also denied a request by Attorney General Ashcroft to broaden the Justice Department's authority in the wake of 9/11. We begin with New York Times correspondent Phillip Shenon.

Philip, a lot of people probably have never heard of this court. What is it, what is it charged with doing?

PHILIP SHENON:

It's a group of eleven federal judges who operate on a rotating basis. What they're responsible for is laying the question of whether or not the government should be allowed to wire tap people on suspicion that they may be spies or terrorists.

RAY SUAREZ:

And their ruling, the document released yesterday, pretty unusual to hear from this court in such a public way, isn't it?

PHILIP SHENON:

It's really the first time we've ever heard from this court in this way in its almost 20 years of its existence. It said, in an opinion that was released by Congress, the court gave its opinion to Congress, Congress released it yesterday, it was dated back in May — it found that, it identified more than 75 instances in which it feet it had been misled by the FBI about the circumstances under which it was seeking permission to conduct electronic surveillance. And it also said that Attorney General John Ashcroft and the Justice Department were overreaching in trying to broaden their surveillance powers.

RAY SUAREZ:

In the particular cases cited by the opinion, were these stretching back over a long period of time, or just the recent past?

PHILIP SHENON:

The cases in which the court was clearly upset involved principally incident that happened during the Clinton Administration. And this court was designed to establish protections for privacy. Under the 4th Amendment of the Constitution there can be no unreasonable search else or seizures, or there aren't supposed to be. And this court — because there is a much lower standard of evidence to obtain a counter intelligence wire tap than there is to obtain a regular criminal wire tap, the court has asked to weigh whether or not privacy is being invaded as a result.

RAY SUAREZ:

And was this ruling regarding the provisions of the U.S.A. Patriot Act, a real rebuff to the attorney general?

PHILIP SHENON:

It was a real rebuff in terms of Mr. Ashcroft's request for additional powers. It was more a rebuff to the FBI during the Clinton years in which apparently FBI agents on the basis of, it comes down to this: FBI agents apparently had a large number of cases, were trying to take advantage counter intelligence laws, laws that allowed them to seek evidence on the basis of– seek wire taps on the basis of very little evidence. They were taking advantage of those regulations to open broader criminal investigations.

RAY SUAREZ:

Now where does this ruling leave things in legal terms? Does this establish a precedent, make the U.S.A. Patriot Act, parts of it, not law wham what does it mean?

PHILIP SHENON:

Well, it can be appealed. There is this rotating group of eleven judges on the surveillance court and there is a three-judge panel that acts as an appeals court above it. And yesterday the Justice Department went to this appeals body and asked them to review the lower court decision.

RAY SUAREZ:

So does this perhaps overturn cases where convictions were brought? Do we know yet whether the evidence developed in some of these cases identified as faulty by the court may actually have any bearing on cases where convictions were obtained?

PHILIP SHENON:

No, the question seems to be much more what is the future of Justice Department investigations, and will they be given the broader power they want to allow criminal prosecutors and criminal law enforcement investigators to work with counter intelligence investigators in terms of sharing evidence, in terms of sharing information that may lead to criminal indictments as opposed to simple surveillance of suspected spies?

RAY SUAREZ:

What did the Justice Department have to say on its own behalf?

PHILIP SHENON:

It said that it felt that the court had misread the U.S.A. Patriot Act, the act that was passed last year after the September 11 attacks in which the Congress found that there should be greater cooperation between criminal prosecutors and counter intelligence investigators.

RAY SUAREZ:

Was the U.S.A. Patriot Act, and certainly as it affects the FISA court in its work, looking for a very different burden in order to obtain, a different threshold in order to obtain warrants, the ability to do surveillance and wire taps?

PHILIP SHENON:

Well, what Mr. Ashcroft and his aides want is they want much more complete cooperation between criminal investigators and the investigators who focus principally on questions of espionage going on in this country. They want to be able to share the information back and forth so, that in many cases people under surveillance for spying can also be brought to court on criminal charges. The judges came back, apparently in May, and said no, we don't want to give you that level of cooperation. We want to make sure that counter intelligence wire taps are not used largely for law enforcement purposes.

RAY SUAREZ:

Do we know during the time that the FISA court has had these misgivings about these requests for surveillance, whether they've been turning them down, whether FBI agents have been less likely to make the request, and what bearing that might have on the September 11 investigations?

PHILIP SHENON:

Well, we do know that throughout most of its history this court has granted almost every request made of it by the FBI and the Justice Department. There is a concern that last summer, after the arrest of Zacarias Moussaoui, the man who may or may not have been part of the September 11 conspiracy, that after his arrest in August, the FBI, because it was so weary of being turned down by this court and being criticized by this court, was reluctant to seek a search warrant to go through Mr. Moussaoui's computer and other belongings. Information that it's argue usually that information that could possibly have led to other people involved in these September 11 attacks.

RAY SUAREZ:

Philip thanks a lot.

PHILIP SHENON:

Thank you.