FBI Applies New Rules to Surveillance
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 decades.
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 clandestine surveillance.
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 said.
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 process.
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 need."
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 happen."
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."