The Limits of Trust Friday, August 23, 2002; Page A26 SINCE THE SEPT. 11 attacks, the Bush administration has argued that law enforcement and intelligence agencies can be trusted to wield broad new powers -- both those additional powers voted into law last year and powers still under consideration. Officials have in many instances brushed aside suggestions that accountability and openness should accompany these new authorities. And their "trust us" mantra has largely carried the day as Congress has approved intrusive new powers for the executive branch. So it is no wonder that the Justice Department did not hasten to produce to Sens. Patrick Leahy, Charles Grassley and Arlen Specter a copy of an extraordinary May 17 opinion by the seven judges of the Foreign Intelligence Surveillance Court. The work of this super-secret tribunal, which considers government applications for search warrants and wiretaps in intelligence matters, almost never sees the light of day -- in fact, this is the first opinion the full court has published since its creation in 1978. But in this instance, the judges themselves, responding to a request by the senators, took action to make sure that the senators and the public saw their unprecedented, unclassified opinion. The opinion, which the three senators released yesterday, paints a disquieting portrait of the FBI's trustworthiness, or lack thereof, in some of the most sensitive matters it handles. The opinion was written in response to a Justice Department proposal to change the rules governing the relationship between prosecutors chasing criminals and intelligence operatives chasing information. In criminal cases, prosecutors generally must show probable cause of criminal activity before a judge will allow them to wiretap or search a suspect. The Foreign Intelligence Surveillance Act (FISA) authorizes such intrusive surveillance for intelligence purposes with a less rigorous showing. While this material can end up being used in a criminal case, the lower standard is constitutional only because the statute's purpose -- and the purpose of the surveillance -- is to gather foreign intelligence. So the FISA judges have historically been careful to make sure that criminal prosecutors were not directing surveillance under the law as a way of bypassing the strictures of domestic criminal rules. In the USA Patriot Act, Congress substantially lowered the wall between intelligence-gathering and crime-fighting; the Justice Department argued to the court that the new law meant the judges should ease up and stop insisting that prosecutors not take over intelligence surveillance. The court said no. It cited a variety of legal considerations, but underlying these was another factor: The judges report that the FBI has not played straight with them over the role prosecutors have been playing in the process in the past. In September 2000, the judges recount, the government "came forward to confess error in some 75 FISA applications related to major terrorist attacks directed against the United States." These errors almost uniformly "involved information sharing and unauthorized disseminations to criminal investigators and prosecutors." They included an "erroneous statement" by then-FBI Director Louis Freeh and misrepresentations in the FISA applications of FBI agents concerning "the separation of overlapping intelligence and criminal investigations." They also included "omissions of material facts from FBI FISA affidavits relating to a prior relationship between the FBI and a FISA target." Furthermore, the judges complain that they have yet to receive any explanation of how they came to be misled, despite the fact that internal investigations have been ongoing "for more than one year." Attorney General John Ashcroft is not blamed for these transgressions. Most or all of the misstatements appear to have taken place during the prior administration, and the court notes that the department and bureau wrote new rules last year to ensure the accuracy of FISA applications. The judges, moreover, appear to have no complaints about the quality of applications since Sept. 11. But the fact that dozens of FBI representations to a federal court handling issues of such sensitivity could turn out to be false raises questions both about current proposals to expand the government's FISA powers and about other situations in which the government asks judges and the public to accept its actions and statements on faith. If the FBI can botch 75 affidavits in the famously rigorous FISA process, is it not possible that the military might have made an error, say, in the spare two-page declaration it is using to justify the indefinite detention of likely American citizen Yaser Esam Hamdi? And isn't some measure of oversight -- such as the FISA judges and the senators are providing in this instance -- a healthy antidote? The government has no experience with losing before the FISA court, which has never turned down a surveillance request. This opinion, in fact, has produced the first appeal ever of a FISA court action -- and thus the first case ever heard by a special FISA appeals court that has never previously had to convene. Whatever happens in that uncharted territory, the FISA court has raised critical questions that Congress needs to pursue before granting further new powers to the government. Members need to satisfy themselves that the problems the FISA judges have identified have truly been corrected and that adequate safeguards of openness and accountability are built into any enhanced surveillance powers. http://www.washingtonpost.com/wp-dyn/articles/A51447-2002Aug22.html