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Dept. of Justice Criticizes Ruling Issued by Secret Intelligence Court

By Josh Meyer

and Elizabeth Shogren

A senior Justice Department official said Friday that a ruling by a secretive federal court that scales back the department’s efforts to share intelligence information with FBI agents has hurt the ability of law enforcement to protect U.S. citizens from ongoing terrorist plots.

The confidential May ruling by the Foreign Intelligence Surveillance Act court -- made public Thursday -- has had an unseen but significant impact on the nation’s war on terrorism, the official said during a Justice Department briefing on the status of the investigation into the Sept. 11 attacks and other terrorism-related matters. Also Friday, the Justice Department released its appeal of the ruling, which it filed late Thursday.

Several Democratic lawmakers praised the FISA court, as it is known, saying its ruling was instrumental in protecting the civil rights of Americans from undue spying by a Justice Department that has become overly aggressive in its self-declared war on terrorism.

Justice Department officials vehemently disagreed and warned that unless the court ruling is overturned, they will be hamstrung in their efforts to enact important counter-terrorism measures included in the USA PATRIOT Act passed last year by Congress.

Of particular concern, according to the senior official and others in the Justice Department, is the FISA court’s order that federal prosecutors, FBI agents, and intelligence operatives keep intact a wall between those investigating ongoing criminal activity and those gathering intelligence on potential terrorist attacks and acts of espionage.

In effect, the court’s ruling means “that in order to bring a [criminal] case against someone, we have to shut down intelligence channels and we’re going to be blind” as to what suspected terrorists are doing, said the official, who spoke on condition of anonymity. “Or it’s the reverse, that in order to keep seeing what’s going on, we’ll have to kind of sit with our hands tied and let people run around and do bad things. So I do think it has impeded our ability to get closer coordination.

“I think we are better than we were prior to Sept. 11” in terms of ferreting out terrorist plots and stopping them, the official added. “But we are not where we could be and where the American people have a right to expect we will be if the law is fully deployed in the way that we want.”

The looming legal battle over the FISA ruling underscores the debate about how far the FBI and the Justice Department should be able to go in gathering intelligence in the fight against terrorism.

The Foreign Intelligence Surveillance Act of 1978 was passed in response to the Nixon administration’s abuse of its intelligence-gathering powers to spy on its political enemies. It was intended to distinguish between the government’s efforts to battle crime at home and its need to gather intelligence on suspected foreign agents. Warrants to allow such searches required approval of the FISA court.

In the mid-1990s, then-Attorney General Janet Reno erected a firewall between intelligence-gathering investigations and criminal probes to prevent agents from overstepping their authority because the warrants are so secretive and the methods of investigation so invasive.