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Data show different spy game since 9/11

For the first time, the number of secret surveillance warrants issued in federal terrorism and espionage cases last year exceeded the total number of wiretaps approved in criminal cases nationwide, according to new statistics released yesterday.
/ Source: a href="" linktype="External" resizable="true" status="true" scrollbars="true">The Washington Post</a

For the first time, the number of secret surveillance warrants issued in federal terrorism and espionage cases last year exceeded the total number of wiretaps approved in criminal cases nationwide, according to new statistics released yesterday.

The data provide further evidence of how the Justice Department and the FBI have shifted their focus from traditional criminals to suspected terrorists and their associates, and mark a milestone in the history of domestic surveillance by U.S. law enforcement agencies, government officials and legal and privacy experts said.

Federal and state courts authorized the use of wiretaps and other electronic surveillance in 1,442 criminal cases last year, according to data released yesterday by the Administrative Office of the U.S. Courts. By comparison, the FBI says the number of warrants filed last year with the secret Foreign Intelligence Surveillance Court in Washington jumped to more than 1,700.

The volume of secret wiretaps has grown so rapidly over the past two years that the Justice Department has fallen behind in processing applications, resulting in serious "bottlenecks," according to a recent report by the commission investigating the Sept. 11, 2001, attacks. The report said the approval process "continues to be long and slow" and that the requests "are overwhelming the ability of the system to process them."

Although the government does not provide details about the secret warrants, officials and legal experts said the two sets of statistics provide a reliable measure of the types of surveillance conducted by state and federal law enforcement agents. Intelligence warrants can also include physical searches, but current and former government officials familiar with the process say that nearly all involve some form of electronic surveillance.

The monitoring allowed under the Foreign Intelligence Surveillance Act in terrorism and espionage cases can be far more aggressive and wide-ranging, can last longer, has fewer restrictions and may be approved even if law enforcement agents do not meet standards of probable cause for criminal cases.

"This really amounts to the first statistical proof that the Justice Department has redefined its mission and has undergone a fundamental shift in the way it conducts surveillance," said David L. Sobel, general counsel at the Electronic Privacy Information Center, which monitors government surveillance policies. "The fact that it is now a secret court that is overseeing the majority of surveillance activity, in cases that do not require probable cause, does raise significant privacy and constitutional issues."

Broader power
The latest statistics come amid an ongoing national debate about the use of the USA Patriot Act, which was passed shortly after Sept. 11, and gave the FBI broader power to search and surveil. President Bush in recent weeks has called on Congress to make permanent some controversial portions of the law that are set to expire in 2005.

The House Judiciary Committee is set to consider legislation next week that would expand the government's ability to conduct surveillance.

Officials stressed that in urgent cases, Attorney General John D. Ashcroft may circumvent the backlog of FISA warrant applications by seeking emergency orders while awaiting approval of standard warrants.

They said a task force of 10 FBI and Justice Department lawyers has recently been assigned to plow through the backlog of cases. Ashcroft also decided two weeks ago that FBI agents should send their requests directly to the Justice Department, rather than to FBI headquarters, for initial legal review, officials said.

In addition, FBI spokesman Ed Cogswell said 12 bureau lawyers are being transferred to the Office of Intelligence Policy and Review at Justice, where the applications are drafted. Previously, FISA requests from field offices were first sent to those FBI lawyers for a review of legal sufficiency.

Justice Department spokesman Mark Corallo said more lawyers are being assigned to work with the 44 lawyers who now handle the applications, along with three more supervising lawyers. "What you have is a system that since 9/11 has seen an enormous increase in activity without an enormous increase in personnel," Corallo said.

The Patriot Act and a landmark 2002 decision by a secret appeals court substantially broadened the government's use of electronic surveillance under FISA. The legislation allowed the FBI to seek such warrants not just in cases in which the primary objective is intelligence gathering, but when criminal prosecution is the primary goal. The number of FISA applications has mushroomed as a result.

The number of FISA warrants filed in 2003 was an 85 percent increase over the total in 2001, when 934 applications were approved, according to statistics provided by the FBI in April to the commission investigating the terrorist attacks. The Justice Department is scheduled to formally release a final number tomorrow.

By comparison, wiretaps approved by regular federal courts -- including surveillance sought by the FBI in traditional criminal cases -- totaled 578 last year, according to the statistics released yesterday by the U.S. courts office. The rest, 864, were issued by state courts, primarily in the northeast, Florida and California, the statistics show.

Timothy Edgar, a lawyer at the American Civil Liberties Union, said the increase in secret surveillance warrants shows that "the Bush administration is using spy-hunting tools to sidestep the basic protections that exist in criminal cases."