Many Searches Not Subject To Regular Courts' Oversight
By Dan Eggen, The Washington Post
The FBI has implemented new ground rules that fundamentally alter the
way investigators handle counter-terrorism cases, allowing criminal
and intelligence agents to work side by side and giving both broad
access to the tools of intelligence gathering for the first time in
The result is that the FBI, unhindered by the restrictions of the
past, will conduct many more searches and wiretaps that are subject
to oversight by a secret intelligence court rather than regular
criminal courts, officials said. Civil liberties groups and defense
lawyers predict that more innocent people will be the targets of
The new strategy -- launched in early summer and finalized in a
classified directive issued to FBI field offices in October -- goes
further than has been publicly discussed by FBI officials in the past
and marks the final step in tearing down the legal wall that had
separated criminal and intelligence investigations since the spying
scandals of the 1970s, authorities said.
Senior FBI officials said the changes have already helped the bureau
disrupt plans for at least four terrorist attacks overseas and
uncover a terrorist sleeper cell in the United States, though they
declined to provide details on those cases. The approach also has
resulted in a notable surge in the number of counterterrorism
investigations, a statistic that is classified but currently stands
at more than 1,000 cases, officials said.
"With 9/11 as the catalyst for this, what we've done is fundamentally
change the approach we take to every counterterrorism case," FBI
terrorism chief John S. Pistole said in an interview. "This is a sea
change for the FBI."
To civil libertarians and many defense lawyers, the changes pose a
threat to the privacy and due-process rights of civilians because
they essentially eliminate, rather than merely blur, the traditional
boundaries separating criminal and intelligence investigations. As a
result, these critics say, FBI agents and federal prosecutors will
conduct many more searches and seizures in secret, as allowed under
intelligence laws, rather than being constrained by the rules of
traditional criminal warrants.
"By eliminating any distinction between criminal and intelligence
classifications, it reduces the respect for the ordinary
constitutional protections that people have," said Joshua L. Dratel,
a New York lawyer who has filed legal briefs opposing government
anti-terrorism policies. "It will result in a funneling of all cases
into an intelligence mode. It's an end run around the Fourth
Amendment," which protects citizens from unreasonable searches, he
The overhaul of the FBI's counterterrorism policies began earlier
this year with a classified document called the Model
Counterterrorism Investigations Strategy (MCIS), officials said. The
strategy stems from a November 2002 decision by an intelligence
appeals court, which ruled that the anti-terrorism USA Patriot Act
permits intelligence investigators and criminal prosecutors to more
easily share information about terrorism cases.
The MCIS and other rules effectively put that finding into practice
by reworking the way terrorism cases are handled by the FBI, and by
requiring that both criminal and intelligence investigators
physically work as part of the same squads on terrorism
investigations, officials said. FBI officials declined to release
copies of the MCIS or a related Oct. 1 directive, citing national
security restrictions, but agreed to describe the outlines of the
Under previous FBI protocols, terrorism probes could be opened along
two separate tracks, one for the purposes of developing a criminal
case and one for intelligence gathering. Each was labeled with
separate classification numbers, which govern the way cases are
tracked and budgeted within the FBI. Sharing between the two
categories was sharply limited, overseen by legal mediators from the
FBI and Justice Department, and subject to scrutiny by criminal
courts and the secret Foreign Intelligence Surveillance Court.
Under the new guidelines, all counterterrorism cases are opened under
the same classification number, 315, and are handled from the outset
like an intelligence or espionage investigation, officials said. The
structure allows investigators to more easily use secret warrants and
other methods that are overseen by the surveillance court and not
available in traditional criminal probes, sources said.
All terrorism cases will also be formally run by the counterterrorism
division at FBI headquarters in Washington, rather than by individual
field offices, officials said.
Pistole said that focusing on intelligence gathering will improve the
ability of the FBI to prevent, rather than just investigate,
terrorist attacks. He and other FBI officials also said the new
system will result in less emphasis on bringing criminal charges
against suspects in favor of longer surveillance operations. When
charges are eventually brought, however, prosecutors will be able to
use information gathered through intelligence methods.
"We're still interested in the criminal violations that people may be
involved in," Pistole said. "But in many cases we are going to put
that in the back seat and go down the road until we have all that we
Robert M. Blitzer, a former FBI counterterrorism official, said that
by merging the criminal and intelligence sides of counterterrorism
cases, investigators will be able to work more efficiently on cases
and avoid problems that were common before Sept. 11, 2001.
"In the past, it was an absolute cardinal rule that there be a wall
between the two cases," Blitzer said. "Now, you will have much
broader access to see what is going on. You can see the whole scope
of things. . . . We were always afraid that something could slip
between the cracks on both sides under the old system, and that did
In one stark example, FBI lawyers refused to allow criminal agents to
join an August 2001 search for Khalid Almidhar, who had entered the
United States and would later help commandeer the airliner that
crashed into the Pentagon. The lawyers said that information about
Almidhar's ties to al Qaeda obtained through intelligence channels
could not be used to launch a criminal investigation. An angry New
York FBI agent warned in an internal e-mail that was later revealed
during congressional hearings that "someday someone will die" because
of the decision.
In another case, the FBI failed to seek an intelligence warrant to
search the belongings of alleged al Qaeda conspirator Zacarias
Moussoaui, who had been detained in Minnesota three weeks before the
attacks. The legal counsel in the FBI's Minneapolis field office said
headquarters officials limited the actions of regular FBI agents in
the case because of concerns about breaching the wall between
intelligence and criminal cases.
The FBI's new strategy is the culmination of a series of new rules
and regulations issued since the Sept. 11 attacks to govern terrorism
investigations. Attorney General John D. Ashcroft last month issued
new national security guidelines, for example, that allow the FBI to
conduct an initial "threat assessment" of potential terrorists
without firm evidence of a threat or crime, which is required to open
a full investigation.
Ashcroft, FBI Director Robert S. Mueller III and other officials
argue that such changes are necessary to transform the FBI from a
reactive law enforcement agency into one capable of detecting and
thwarting terrorist attacks before they occur. According to a study
released this week by Syracuse University's Transactional Records
Access Clearinghouse, Justice and the FBI have sharply increased the
number of terrorism cases they are pursuing since the 2001 attacks,
although most of the 6,400 people referred to prosecutors were never
charged with a crime related to terrorism.
Several civil liberties advocates and defense lawyers said the new
FBI rules appear to encourage agents to ignore constitutional
concerns and to push the boundaries of what is allowed by recent
court rulings. Ann Beeson, a staff attorney at the American Civil
Liberties Union, said the system will encourage prosecutors to rely
too heavily on evidence gathered by secret intelligence methods.
"They're going to use all their foreign intelligence tools, and then
they're going to prosecute people using those tools," Beeson said.
"They're putting this whole class of criminal cases outside the
protection of the Fourth Amendment."
Michael A. Vatis, a former Justice Department and FBI official, said
the changes are necessary but acknowledged the risk that
investigators could overreach. "The principal danger is what the old
rules were designed to avoid: to make sure that the FBI wasn't using
intelligence authorities when they were really just looking to bust
bad guys," he said. "There does need to be good oversight to make
sure these new rules are not abused."