The number of secret surveillance warrants sought by the FBI has increased by 85 percent in the last three years, a pace that has outstripped the Justice Department’s ability to quickly process them.
Even after warrants are approved, the FBI often does not have enough agents or other personnel with the expertise to conduct the surveillance. The FBI is still trying to build a cadre of translators who can understand conversations that are intercepted in such languages as Arabic, Pashto and Farsi.
The findings are among those of investigators for the commission investigating the Sept. 11, 2001, terrorist attacks, which has harshly criticized the intelligence-gathering efforts of the CIA and the FBI.
FBI and Justice Department officials said Thursday that they were working to address all three issues, which limit the government’s ability to gather the kind of intelligence needed to head off another catastrophic terrorist attack.
Intelligence reforms create bottleneck
The warrants, authorized by the Foreign Intelligence Surveillance Act, allow for wiretaps, video surveillance, property searches and other spying on people believed to be terrorists or spies. The use of FISA warrants has soared as sharing of information has become easier in the wake of the 2001 Patriot Act and a key 2002 court decision that crumbled the legal wall separating the FBI’s criminal and intelligence investigations.
Since 2001, the number of warrants has risen from 934 to more than 1,700 in 2003, according to the FBI, which adopted streamlined procedures to move the warrant requests quickly from field offices to headquarters after the Sept. 11 attacks.
But a report released this week by the Sept. 11 commission found that the Justice Department’s approval process “continues to be long and slow” and that the mounting requests “are overwhelming the ability of the system to process them.” Although there are provisions for the attorney general to issue emergency FISA warrants, those are good for only 72 hours before they must be reviewed by a special court.
The department and the FBI are “attempting to address bottlenecks” in the system, the commission report found, but the difficulties suggest that some surveillance opportunities could be delayed or lost.
Attorney General John Ashcroft is issuing new guidelines for the Justice Department’s Office of Intelligence Policy and Review, which handles FISA requests, said Mark Corallo, a spokesman for the department. The changes are aimed at reducing and preventing backlogs, he said.
“We have been in a constant state of revising and streamlining the FISA process,” Corallo said. More lawyers are being added to the unit so the warrant requests are more quickly reviewed and sent to the court for approval.
Blamed in Moussaoui mixup
The inability to gather enough evidence for a FISA warrant caused the FBI problems in the case of Zacarias Moussaoui, the only person charged in connection with the Sept. 11 attacks. He was taken into custody on immigration charges in August 2001 after his desire to learn to fly a Boeing 747 with little flight background aroused suspicions.
The FBI turned to the CIA to help produce evidence needed to show that Moussaoui might be connected to a foreign terrorist group, which would enable agents to get a FISA warrant to search Moussaoui’s computer. That led to an Aug. 23-24 briefing memo to CIA Director George Tenet headlined “Islamic Extremist Learns to Fly,” but nothing was done before the 19 hijackers completed the Sept. 11 plot, which killed nearly 3,000 people.
The commission said it was possible that if the government had acted more quickly on the information involving Moussaoui it could have led authorities to the hijackers.
Some lawmakers and privacy activists worry that FISA remains ripe for abuse. Legislation introduced in Congress would require the Justice Department to publicly account for the number of Americans subjected to FISA surveillance and how often it is used in criminal cases.
“What it will do is go a long way toward assuaging growing public mistrust of the government,” said Timothy Edgar, legislative counsel for the American Civil Liberties Union.
Even if the FISA delays are solved, the FBI is struggling to provide the surveillance experts necessary to carry out the warrants. The commission’s staff found shortages at every FBI field office it visited and noted that some of these personnel “are not treated as part of an integrated intelligence program” and did not meet regularly with case agents working terrorism suspects.
The FBI has two main surveillance programs: the Special Surveillance Group, made up of non-agents who monitor foreign agents, spies and others not targets of a criminal investigation; and the Special Operations Group, made up of agents who deal with dangerous people such as terrorists or organized crime figures.
Both types of surveillance are extremely labor-intensive, requiring personnel to work in shifts for round-the-clock coverage of the target. They also must handle other types of criminal cases, including those involving the Mafia, public corruption and violent street gangs.
In his testimony to the commission, FBI Director Robert Mueller said the FBI had requested money from Congress for additional surveillance capabilities to meet the growing demand. And he said that while the FBI still faced a shortage of translators, any counterterrorism intercept deemed important was reviewed by a language expert within 24 hours.