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Justice appeals court ruling limiting information sharing

Justice appeals court ruling limiting information sharing

WASHINGTON (CNN) -- The U.S. Justice Department has appealed a special intelligence court ruling that limits prosecutors' ability to share information with intelligence agencies under the anti-terrorism Patriot Act.

In that same ruling, the presiding judge of the Foreign Intelligence Surveillance Court, U.S. District Court Judge Royce Lamberth, detailed how the FBI has made an "alarming number" of errors in seeking and using national security warrants in terrorism investigations since 2000.

Those lapses -- including factual errors in warrant applications and dissemination of information to law enforcement agents who weren't supposed to have it -- are the subject of internal investigations by the FBI and the Justice Department, according to Lamberth.

The court's ruling, made in May, was released Thursday at the request of three U.S. senators, who wanted to evaluate how the Foreign Intelligence Surveillance Act (FISA), under which the warrants were issued, was working. (More on the FISA court)

 FISA Court:
The Foreign Intelligence Surveillance Court is a secret court that oversees spying in the United States. It was set up to oversee implementation of the Foreign Intelligence Surveillance Act (FISA).

More on the FISA Court

FISA court's ruling, May 17, 2002:  (FindLaw, PDF format)
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The court ruled that prosecutors who want to consult with intelligence agents must first advise the Justice Department in advance and invite lawyers to participate. But Justice Department officials maintain the Patriot Act allows for more robust coordination between intelligence agencies and law enforcement. (More on the Patriot Act)

"The court wrongly interpreted the act, and the effect is to limit the type of coordination we think is very important," a Justice Department official said.

Attorney General John Ashcroft Thursday said the Patriot Act and information-sharing between local, state and federal agencies "holds the best promise for us of preventing terrorist attacks."

"The prevention of terrorism is the best response we can possibly make," Ashcroft said. "And the best friend of prevention is information."

Speaking at a news conference with members of an antiterrorism task force in Newark, New Jersey, Ashcroft did not mention the ruling, but he stated clearly his belief on the importance of the act.

He said when terrorists "plan to extinguish themselves in the commission of crimes," the mere threat of prosecution does not slow them down -- thus, the need to catch them before they act.

"We have to learn to work together to assemble the information when possible to prevent terrorism," Ashcroft said. "We must share information aggressively, and we must carry out the mission of prevention."

FISA warrants are issued by the special court for electronic surveillance and physical searches in the United States when investigators are trying to gather evidence concerning foreign intelligence matters. FISA warrants can be issued for surveillance of a foreign power or an agent of a foreign power when information cannot be gathered by other means.

In its ruling, the court recounted instances last year and in 2000, where erroneous information was used as the basis for asking for warrants under FISA -- and how FISA information was given to law enforcement officials who were not supposed to have it.

Lamberth wrote that "in an alarming number of instances, there have been troubling results." The judge said in September 2000, the government told the court of errors in 75 FISA applications relating to major terrorist attacks directed against the United States.

The court was told the errors dealt with misstatements and omissions of material facts, including the admission that, beginning in March 2000, information from a FISA search was being disseminated to FBI criminal squads in New York and the U.S. Attorney's Office.

"In virtually every instance, the government's misstatements and omissions in FISA applications and violations of the court's orders involved information sharing and unauthorized dissemination to criminal investigators and prosecutors," the court ruling said.

Other problems cited by the court include:

  • An erroneous statement in a certification by the FBI director that the target of a FISA search was not under criminal investigation.
  • Erroneous statements in affidavits by FBI agents concerning the separation of overlapping criminal and intelligence inquiries.
  • Omissions of material facts from affidavits relating to a prior relationship between the FBI and the target of a search.
  • In November 2000, a special meeting was held to talk about what the court called the "troubling number" of inaccurate affidavits in FISA applications. Lamberth said the court decided not to "accept inaccurate affidavits from FBI agents, whether or not intentionally false," and one FBI agent was even barred from appearing before the special court.

    According to the court, in March 2001, the government reported similar misstatements in another series of warrant applications where supposedly there was a "wall" between separate intelligence and criminal squads. In fact, the court said, "all of the FBI agents were on the same squad, and all of the screening was done by the one supervisor overseeing both investigations."

    In April 2001, the FBI implemented new procedures governing the submission of requests for FISA searches, including reviewing affidavits to ensure accuracy, according to the ruling.

    Lamberth wrote that the lapses have been under investigation by the FBI and the Justice Department's Office of Professional Responsibility for more than a year.

    The court released its May ruling and other information at the request of Sen. Patrick Leahy, D-Vermont, chairman of the Senate Judiciary Committee, and Sens. Charles Grassley, R-Iowa, and Arlen Specter, R-Pennsylvania.

    "The fact that the FISA court released this opinion today is an important breakthrough for our oversight effort," Grassley said in a statement. "We have never had access to this kind of information before. It will contribute to the analysis we've got under way and help us determine what is wrong with the FISA process..."

    -- CNN Producer Kevin Bohn and Justice Correspondent Kelli Arena contributed to this report.




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