WIRETAP REBUKE: A COURT'S OVERDUE RESPONSE TO DOMESTIC SNOOPING

Americans don't like to be spied on, least of all by their own government.
But until the mid-1970s, the CIA, the FBI and the National Security Agency
routinely and illegally investigated Americans such as peace and civil
rights activists. The CIA and FBI swapped files. Courts yawned.

In the wake of Watergate, when Richard Nixon's mania for wiretapping
brought the problem home to most Americans, a Senate committee issued a
scathing report on the secret services' abuses that warned of "the dangers
of a domestic secret police." A law was passed in 1979 to prevent abuses,
and a new court established to enforce the law.

The Foreign Intelligence Surveillance Act allowed spying and wiretaps only
with permission from the secret FISA court, and only if the spying was
specifically for "the collection of foreign intelligence information."
Sharing information was also not allowed without the court's permission.
The CIA was essentially forbidden from snooping on Americans, but the FBI
still could, within bounds.

In 1995, then-Attorney General Janet Reno established a firewall between
the FBI's intelligence-gathering operatives on the one hand and prosecutors
and law enforcement agents on the other. Even inside the agency, swapping
information was not allowed, for a very good reason: FBI agents were not to
use "intelligence gathering" as a short-cut in domestic criminal
investigations. Many did anyway.

On Thursday, the FISA for the first time in the secret court's 23-year
history made one of its opinions public. In it, the court revealed that FBI
officials often lied or misled the court since 1995 as they sought search,
surveillance or wiretapping warrants on Americans or U.S. residents. The
court cited 75 such cases and suggested there could be more. That in itself
is cause for head-rolling.

But the reason the abuses have come to light is even more worrisome. In
March, Attorney General John Ashcroft formally asked the FISA court to do
away with the firewall. Not only should the court allow
information-swapping between agents and prosecutors, but the
search-and-surveillance rule should be relaxed enough so it can be "used
primarily for a law enforcement purpose, so long as a significant foreign
intelligence purpose remains." In other words the FBI should be allowed to
do exactly what the Foreign Intelligence Surveillance Act was created to
prevent spy on Americans, whether the aim is counter-terrorism or dragnet
snooping. Ashcroft's justification, of course, is Sept. 11.

In a stunning rebuke of the attorney general, the court denied Ashcroft's
motion, thereby neutering a large portion of the USA Patriot Act Congress
passed hastily after Sept. 11. Ashcroft had convinced Congress, through the
act, to yield broad new wiretapping powers to the FBI regardless of the
nature of the agency's investigations. But the Patriot Act clashes with the
Foreign Intelligence Surveillance Act. The FISA court ruled in defense of
the act.

Ashcroft and the Bush administration are incensed. Americans should be
relieved. More urgently, no one should fall for Ashcroft's claim that the
court's ruling will hamper intelligence gathering.

Most Americans have no qualms with their law enforcement infrastructure
acting more coherently when counter-terrorism is the goal. Nor does the
FISA court. But Ashcroft is asking for a very different kind of
information-swapping. He's asking for the loose kind that used to take
place in the 1960s and 1970s, all the while making it seem as if it's just
a matter of better "coordination." Talk about misrepresentation.

As it is, the FISA court is inviting Congress to re-write the foreign
intelligence act of 1978 and loosen it the Ashcroft way. So the battle
against domestic snooping is hardly won. But past abuses (in the 1960s and
70s, as well as in the last few years) should be Congress' warning that
more policing of Americans is not needed nearly as much as more policing of
the nation's secret services. The court's ruling should also signal to
Congress that the act that needs revising is the USA Patriot ACT, not FISA.
Counter-terrorism should be every secret service's priority. But
corner-cutting police state tactics? Not on this soil, not in the name of
the so-called war on terrorism or any war.