FBI lied to get approval for tap, secret court says

Sharing intelligence with investigators draws sharp criticism


WASHINGTON - The nation's secret intelligence court has identified more than 75 cases in which it says it was misled by the Federal Bureau of Investigation in documents in which the bureau attempted to justify its need for wiretaps and other electronic surveillance, according to the first ruling released publicly by the court.

The opinion by the Foreign Intelligence Surveillance Court, which was issued in May but made public yesterday, is stinging in its criticism of the FBI and Justice Department, which the court suggested had attempted to defy the will of Congress by allowing intelligence material to be shared freely with criminal investigators.

In its opinion, the court rejected a secret request made by Justice this year to allow for broader cooperation and evidence-sharing between counterintelligence investigators and criminal prosecutors. The court found that the request was "not reasonably designed" to safeguard the privacy of Americans. The court generally operates in secret and is responsible for approving warrants to eavesdrop on people suspected of spying or terrorism.

The opinion might be important to explain why the FBI was hesitant last summer to seek court permission to search the computer and other belongings of Zacarias Moussaoui, the only person charged in the Sept. 11 terror attacks.

Moussaoui was arrested in Minnesota last August, and FBI officials have acknowledged that their failure to investigate him more fully was among the intelligence mistakes that allowed the Sept. 11 hijackers to operate in the United States undetected in the weeks before the attacks.

Officials have previously acknowledged that at the time of Moussaoui's arrest, the FBI was wary of making any surveillance requests to the Washington-based special court after its judges had complained bitterly the year before that they were being seriously misled by the bureau in FBI affidavits requesting surveillance of Hamas, the militant Palestinian group.

As a result of the complaints, the Justice Department opened an internal investigation of the conduct of senior FBI and Justice Department officials. Department officials said yesterday that the inquiry is still under way and could result in disciplinary action.

The department said yesterday that it intended to appeal the court's decision not to grant its request for broader authority to share intelligence information with criminal investigators, and that secret appeal papers were filed yesterday with a special three-judge panel that oversees the surveillance court.

"We believe this decision unnecessarily narrowed the Patriot Act and limits our ability to fully utilize the authority that Congress provided us," said Barbara Comstock, the Justice Department spokeswoman, referring to the USA Patriot Act, the broad anti-terrorism law that was enacted by Congress after Sept. 11. The act makes it easier for prosecutors to use information gathered from intelligence wiretaps.

Justice Department officials also noted that the criticism of the department in the court opinion made public yesterday referred mostly to actions taken by the department and the FBI during the Clinton administration.

In its opinion made public yesterday, the surveillance court documented the "alarming number of instances" during that administration in which the FBI might have acted improperly.

The opinion was part of a package of material presented this week by the court to the Senate Judiciary Committee, which is reviewing requests by the Justice Department for even broader investigative powers in light of the Sept. 11 attacks.

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