CONYERS SAYS JUSTICE MAY HAVE MISLED CONGRESS ON FISA WIRETAPS
House Judiciary Committee ranking Democrat Conyers (Mich.) raised possibility Dept. of Justice (DoJ) “may have given misleading information to Congress” on electronic surveillance and foreign agent investigations (CD Aug 23 p5). Conyers said in letter Fri. to Attorney Gen. John Ashcroft that he had “grave concerns” with DoJ’s response to committee’s information request on Foreign Intelligence Surveillance Act (FISA) investigations.
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Conyers’ letter followed last week’s disclosure by his Senate Judiciary counterparts of memorandum opinion published by supersecret FISA Court. Court, which until recently never had publicly disclosed documentation of its activities, criticized FBI for “omissions of material facts” and for submitting “erroneous statements” to court. It indicated that “troubling number of inaccurate FBI affidavits in so many FISA applications” had been submitted to court, including 75 incidents that DoJ acknowledged in 2000.
FISA, as modified by Patriot Act, allows federal officials to meet lower standard of proof when seeking authorization to intercept phone calls, e-mails and business records in investigations of “foreign agents.” Unlike stricter “probable cause” standard needed for court- authorized surveillance in criminal investigations, wiretaps and seizures of records under FISA aren’t subject to strict court scrutiny, and in fact can be initiated before receiving permission from FISA Court.
Despite that looser standard, FISA also requires DoJ to promulgate and abide by “minimization procedures” that restrict use and distribution of data collected on U.S. citizens. Law allows FBI and intelligence agencies to disseminate limited criminal activity information about Americans gleaned during foreign agent or terrorist investigations as long as “collection of foreign intelligence” data had been primary purpose of those inquiries. Court said that in spite of that “wall” between intelligence and criminal investigations, FBI had engaged in “unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys.”
It said: “These incidents have been under investigation by the FBI’s and the Justice Department’s Offices of Professional Responsibility for more than one year to determine how the violations occurred in the field offices… As of this date, no report has been published, and how these misrepresentations occurred remains unexplained to the court.”
Minimization rules that were modified by DoJ since passage of Patriot Act have expanded, rather than limited, handling of FISA data on Americans, court said. Provisions in new procedures enable federal prosecutors, rather than court, to advise FBI on FISA data collection and dissemination, it said. Those procedures violate congressional directive that minimization rules be “reasonably designed” and “consistent with need of [U.S.] to obtain, produce or disseminate foreign intelligence” rather than criminal information, it said. Court deleted and replaced segments of procedures to prevent DoJ’s Criminal Div. from “directing or controlling the investigation using FISA surveillances and searches toward law enforcement objectives.”
Conyers said Ashcroft had refused to answer committee’s question about extent of FISA wiretaps for criminal probes. He said DoJ incorrectly advised committee “that the FISA Court had ruled in favor of the Department’s increased use of FISA for law enforcement purposes.” Conyers urged Ashcroft “to provide a complete accounting of this matter” to committee by Aug. 28.