ASHCROFT SEEKS TO BOOST POWER OF SECRET COURT

WASHINGTON - Meeting in a windowless, bug-proof chamber deep inside the
U.S. Justice Department, a secretive U.S. court wields extraordinary power
to approve government requests to listen in on citizens' phone calls or to
break in their homes to seize evidence.

The court's seven judges just can't seem to say no. Since it was
established in 1978, the court has approved thousands of government wiretap
and warrant requests --- and denied only one.

And it's all done in proceedings so classified that even those Americans
who are targeted for surveillance have no right to know about it, much less
to challenge it.

Now, following the Sept. 11 terrorist attacks, the Bush administration is
asking Congress to extend the reach of this little-understood federal
court, whose specialty is overseeing the government's surveillance of
spies, terrorists and agents of foreign powers.

But the proposal is threatening to upset the delicate post-Watergate
balance between protecting national security and spying on Americans.

The court was created by the 1978 Foreign Intelligence Surveillance Act in
response to the Nixon administration's practice of using its
intelligence-gathering powers to spy on its political enemies.

The Bush administration says the need for beefed-up covert surveillance was
highlighted by the attacks on New York and the Pentagon.

"Law enforcement needs a strengthened and streamlined ability for our
intelligence-gathering abilities to gather the information necessary to
disrupt, weaken and eliminate the infrastructure of terrorist
organizations," Attorney General John Ashcroft told Congress last week.

One of the most controversial proposals in Ashcroft's package of
antiterrorism legislation would allow the government to use the court for
other types of investigations, including criminal cases not chiefly related
to gathering foreign intelligence.

But would such a revision allow the government to use the law to pursue
cases that do not affect national security, thereby dodging constitutional
protections ordinarily enjoyed by individuals against surveillance?

"It's a slippery slope," said Morton Halperin, a former State Department
adviser who helped write FISA, as the law is known, while at the American
Civil Liberties Union. "The law is supposed to be used for intelligence,
not for criminal investigations."

Because FISA wiretaps and warrants must clear a lower legal hurdle than
criminal ones, Halperin worries that the FBI might be tempted to use FISA
as an "end run" around the Fourth Amendment, which restricts surveillance
of U.S. citizens in criminal investigations.

The low-profile FISA court, whose seven active and semiretired judges are
selected by the chief justice of the Supreme Court, has probably been
working overtime amid the massive investigation into the attacks in New
York, Washington and Pennsylvania.

Last year, the court granted more than 1,000 wiretaps and search warrants,
double the number of a decade ago, according to the Center for Democracy
and Technology, citing Justice Department figures. Today, FISA warrants are
nearly as common as wiretaps for all criminal inquiries combined, including
drugs, gambling and organized crime.

On the one occasion when the FISA court denied a government warrant
request, it was because the request fell outside the court's jurisdiction,
said David Sobel, attorney for the Electronic Information Privacy
Information Center.

Critics say the recent surge in FISA warrants suggests they are being used
for purposes beyond intelligence-gathering.

"FISA is designed to deal with espionage and terrorism, but there are
always concerns that it is being used for other crimes, such as drug
conspiracies," said Jonathan Turley, a George Washington University law
professor who observed FISA proceedings in the 1980s while working for the
National Security Agency.

But proving misuse is virtually impossible, Turley said, because the
proceedings are never disclosed.

A FISA request begins at an intelligence or national security agency, but
it is the FBI that is responsible for implementing the program. The Justice
Department must sign off on every application, which can run as long as 40
to 50 pages.

Although it's called a court, the process is less like a trial and more
like an administrative hearing. There is no court reporter, and few written
records. The only witnesses are government employees; there is no
adversarial process.

Unlike wiretaps issued under criminal law, FISA applications do not require
showing a crime occurred. The government must demonstrate only the target
is likely to be an agent of a foreign government or power.

FISA may be used only when foreign intelligence gathering is "the" purpose
of the investigation. The Justice Department wants to change the language
so intelligence gathering may be only "a" purpose or "a significant" purpose.

Legal experts say that would open the door to FISA warrants in criminal
investigations, as long as intelligence gathering was a component.

Congress has rejected Ashcroft's call to approve his proposals this week,
indicating it will take a more cautious approach.

"The expansion of FISA is a good idea," said Sen. John Edwards, D- N.C., a
member of the Senate Intelligence Committee. "But we are going to have to
make sure we are doing it within the limits of the Constitution."