No Way To Secure A Homeland?

By Elaine Shannon

The "spy court" usually makes its rulings in secret. But one decision has so riled the Bush Administration that it is loudly airing an appeal. The court is a federal judicial panel that approves requests for wiretaps and searches in espionage and terrorism cases to ensure conformity to the 1978 Foreign Intelligence Surveillance Act (FISA), a reform intended to keep the FBI from abusing its power and, say, targeting peaceful dissenters. The ruling, issued on May 17, was made public last week at the bipartisan behest of the Senate Judiciary Committee, worried about the perceived excesses of Bush's antiterror campaign. The court ruled that the Justice Department and FBI could not take advantage of several key liberalizations of FISA included in the U.S.A. Patriot Act, passed after the Sept. 11 attacks. Attorney General John Ashcroft wanted criminal prosecutors and counterintelligence agents to share information in a coordinated manner, and Congress agreed by legalizing such information sharing in the act; but the court now insists that Justice continue to observe the pre-Sept. 11 FISA restrictions. As a result, the Administration says its war on terrorism hangs in the balance. As the FISA law stands, an FBI intelligence squad and criminal squad, both assigned to watch potential terrorists, cannot freely talk to each other. If the intelligence squad finds out through a wiretap that a bomb is about to be set off, it cannot instantly tip off a criminal squad, so the would-be villains can be rounded up. Also, the "spitting on the sidewalk" strategy is undermined; evidence produced by FISA wiretaps cannot be used to support an arrest for a mundane crime like credit-card fraud. Ashcroft and his aides regard the situation as silly and dangerous. "We've been trying to break the wall down so we can deal with this threat that is always crossing the wall," says an Ashcroft aide, "and this is putting walls back up." --By Elaine Shannon