Securing top-secret surveillance warrants from a special court after 9/11 was proving to be hugely problematic for the Justice Department, and led a senate committee to issue an extraordinary report more than two years ago criticizing federal law enforcement officials for failing to properly follow routine guidelines in their efforts to obtain warrants for eavesdropping on Americans suspected of having ties to terrorists.
The Senate Judiciary Committee report issued in February 2003 may help explain why President Bush authorized the National Security Agency to spy on Americans without seeking prior approval from the Foreign Intelligence Surveillance Court, which for more than two decades has handled domestic spying activities.
The report singled out the FBI, and said the bureau's agents, whose job it is to obtain the surveillance warrants from the special court to collect intelligence information in the fight against terrorism, were inadequately trained in important aspects of not only the procedures to obtain warrants to spy on Americans under the Foreign Intelligence Surveillance Act (FISA), "but also fundamental aspects of criminal law."
Details in the 2003 senate committee report may offer an explanation. The report cited numerous problems associated with the way some officials in the Bush administration interpreted the FISA law, found a "breakdown of communication among all those involved in the FISA application process," and noted that "most disturbing is the lack of accountability that has permeated the entire application procedure."
"In fact, the bureaucratic hurdles erected by Headquarters (and DOJ) not only hindered investigations but contributed to inaccurate information being presented to the FISA Court, eroding the trust in the FBI of the special court that is key to the government's enforcement efforts in national security investigations," the report states.
Bush tried to explain the reasons the administration may seek approval from the special court to eavesdrop on a suspected terrorist and why, in some cases, the NSA conducts its own surveillance absent a warrant. At a December 19 press conference at the White House, he said the administration still seeks FISA warrants "for long-term monitoring," but needs the flexibility of the NSA program.
Bush said, "This is a different era, a different war.... People are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent ... it requires quick action."
But the surveillance court has rejected just five of the nearly 19,000 requests for warrants it has received since 1979 and the warrants can be applied retroactively, meaning that the administration can begin a domestic spy operation and take up to 15 days to file a warrant request with the court.
President Bush says he has the legal authority to authorize the National Security Agency to continue eavesdropping on citizens and monitoring emails without judicial oversight, but many Democratic and Republican lawmakers are questioning whether the president violated the law in doing so.
The surveillance court has also questioned the legality of Bush's actions. The Justice Department's attempts to broaden the FBI's spying abilities after 9/11 became (such) a major concern for the surveillance court that in May 2002 it secretly ordered Attorney General John Ashcroft to scale back the plans to expand the FBI's powers because it infringed on civil liberties, according to a May 17, 2002 Foreign Intelligence Surveillance Court document.
After the Patriot Act was first approved in 2001 and a key 2002 court decision dismantled the legal wall separating the FBI's criminal and intelligence probes, the sharing of information became easier and the use of FISA warrants increased.
Ashcroft is credited with breaking down the wall that former Attorney General Janet Reno had erected in the mid-1990s that separated intelligence-gathering investigations and criminal probes to safeguard against unnecessary invasion of privacy. Federal investigators were incensed by Reno's plan, which said that intelligence agents cannot share information with criminal prosecutors, who have to meet higher legal standards to be granted warrants to conduct wiretaps and searches.
But in March 2002, Ashcroft presented a plan to the FISA court that would allow criminal prosecutors to participate in intelligence operations in the fight against terrorism. The May 17, 2002 surveillance court ruling reined Ashcroft in, and said that he overstepped his authority by loosening the rules governing intelligence gathering. Specifically, the court said Ashcroft's plans "are NOT reasonably designed" to safeguard privacy rights.