Secret Court Says F.B.I. Aides Misled
Judges in 75 Cases
Fri Aug 23, 9:23 AM ET
By PHILIP SHENON The New York Times
WASHINGTON, Aug. 22 The nation's secret intelligence court has
identified more than 75 cases in which it says it was misled by the
Federal Bureau of Investigation in documents in which the bureau
attempted to justify its need for wiretaps and other electronic
surveillance, according to the first of the court's rulings to be
The opinion by the Foreign Intelligence Surveillance Court, which
was issued in May but made public today by Congress, is stinging in
its criticism of the F.B.I. and the Justice Department ( news
sites), which the court suggested had tried to defy the will of
Congress by allowing intelligence material to be shared freely with
In its opinion, the court rejected a secret request made by the
Justice Department this year to allow broader cooperation and
evidence-sharing between counterintelligence investigators and
criminal prosecutors. The court found that the request was "not
reasonably designed" to safeguard the privacy of Americans. The
court generally operates in secret and is responsible for approving
warrants to eavesdrop on people suspected of espionage or terrorism.
The opinion may be important in documenting why the F.B.I. was
hesitant last summer to seek court authority to search the computer
and other belongings of Zacarias Moussaoui, the only person charged
in the Sept. 11 attacks.
Mr. Moussaoui was arrested in Minnesota last August, and F.B.I.
officials have acknowledged that their failure to investigate him
more fully was among the mistakes that allowed the Sept. 11
hijackers to operate in the United States undetected in the weeks
before the attacks.
Officials have previously acknowledged that at the time of Mr.
Moussaoui's arrest, the F.B.I. was wary of making any surveillance
requests to the special court after its judges had complained
bitterly the year before that they were being seriously misled by
the bureau in F.B.I. affidavits requesting surveillance of Hamas,
the militant Palestinian group.
As a result of the complaints, the Justice Department opened an
internal investigation of the conduct of senior F.B.I. and Justice
Department officials. Department officials said the inquiry was
still under way and could result in disciplinary action.
Justice Department officials noted that the criticism of the
department in the opinion referred mostly to actions by the
department and the F.B.I. in the Clinton administration.
The department said today that it intended to appeal the court's
decision not to grant its request for broader authority to share
intelligence information with criminal investigators, and that
secret appeal papers were filed today with a special three-judge
panel that oversees the surveillance court.
"We believe this decision unnecessarily narrowed the Patriot Act
and limits our ability to fully utilize the authority that Congress
provided us," said Barbara Comstock, the Justice Department
spokeswoman, referring to the U.S.A. Patriot Act, the broad
antiterrorism law that Congress passed after Sept. 11. The act makes
it easier for prosecutors to use information gathered from
At a forum in April at the University of Texas, Judge Royce C.
Lamberth, who recently stepped down as the court's presiding judge,
praised Attorney General John Ashcroft ( news
sites) and his staff for ending abuses of the system for
requesting wiretap authority. The F.B.I. had no separate comment on
the ruling and referred calls to the Justice Department.
In its opinion made public today, the court, which is based in
Washington, documented the "alarming number of instances" during the
Clinton administration in which the F.B.I. might have acted
The opinion was part of a package of material presented this week
by the court to the Senate Judiciary Committee ( news
sites), which is reviewing requests by the Justice Department
for even broader investigative powers in the aftermath of Sept. 11.
The committee released the documents today, along with a statement
from the panel's chairman, Senator Patrick J. Leahy, Democrat of
Vermont, who said, "this ray of sunshine from the judicial branch is
a remarkable step forward for constructive oversight."
In weighing eavesdrop requests, the special court, which was
created by the 1978 Foreign Intelligence Surveillance Act and was
recently expanded from to 11 members from 7, is responsible for
enforcing provisions of the law that limit the sharing of electronic
surveillance from intelligence or terrorism cases with criminal
investigators; the limitations are intended to uphold the Fourth
Amendment, which prohibits unreasonable search and seizure.
Because the standards of evidence required for electronic
surveillance are much lower in many intelligence investigations than
in criminal investigations, the authors of the law wanted to prevent
the dissemination of intelligence information to criminal
investigators or prosecutors.
But in a number of cases, the court said, the F.B.I. and the
Justice Department had made "erroneous statements" in eavesdropping
applications about "the separation of the overlapping intelligence
and criminal investigators and the unauthorized sharing of FISA
information with F.B.I. criminal investigators and assistant U.S.
"How these misrepresentations occurred remains unexplained to the
court," the opinion said.
In essence, the court said that the F.B.I. and the Justice
Department were violating the law by allowing information gathered
from intelligence eavesdrops to be used freely in bringing criminal
charges, without court review, and that criminal investigators were
improperly directing the use of counterintelligence wiretaps.
The opinion said that in September 2000, "the government came
forward to confess errors in 75 FISA applications related to major
terrorist attacks directed against the United States the errors
related to misstatements and omissions of material facts."
In one case, it said, the error appeared in a statement issued by
the office of Louis J. Freeh, then the F.B.I. director, in which the
bureau said that target of an intelligence eavesdropping request
"was not under criminal investigation."
In March of 2001, the court said, "the government reported
similar misstatements in another series of FISA applications in
which there was supposed to be a `wall' between separate
intelligence and criminal squads in F.B.I. field offices to screen
FISA intercepts, when in fact all of the F.B.I. agents were on the
same squad and all of the screening was done by the one supervisor
overseeing both investigations." The location of the squad and the
nature of the inquiry were not described.
Gregory T. Nojeim, associate director of the national office of
the American Civil Liberties Union ( news
sites) in Washington, said the opinion was "astounding" in
demonstrating that the F.B.I. and the Justice Department have tried
an "end run around the Fourth Amendment protections against
"These disclosures couldn't have come at a worse time for the
Department of Justice ( news
sites)," Mr. Nojeim said. "They've just been given vast new
intelligence powers and are seeking more."