PATRIOT/FISA: New Powers Fuel Legal Assault On Suspected Terror Supporters

[R. A. Hettinga]

http://online.wsj.com/article_print/0,,SB1043113086596504224,00.html

The Wall Street Journal


January 21, 2003


New Powers Fuel Legal Assault
On Suspected Terror Supporters

By GLENN R. SIMPSON and JESS BRAVIN
Staff Reporters of THE WALL STREET JOURNAL

WASHINGTON -- Quietly deploying new powers to use intelligence data in
criminal cases, federal authorities are intensifying legal assaults on
suspected terrorist supporters in the U.S.

Encouraged by Attorney General John Ashcroft, prosecutors across the
country are aggressively taking advantage of a November appeals-court
decision and a new law giving them greater leeway to use evidence from
wiretaps and other communication intercepts secretly authorized under the
Foreign Intelligence Surveillance Act. Under FISA, a secret court in
Washington authorizes surveillance of suspected foreign agents -- including
searches, wiretaps and mail intercepts -- based on much less evidence of
suspected wrongdoing than is required in typical criminal cases.

Law-enforcement authorities say such information -- previously largely
unavailable for criminal prosecutions -- is breathing new life into
numerous antiterrorism cases or significantly strengthening them.

In Chicago, U.S. Attorney Patrick Fitzgerald is using intelligence evidence
to bolster his case against a Muslim activist indicted for allegedly
helping to finance al Qaeda, Osama bin Laden's terrorist organization. And
he is hoping to use such intelligence and other evidence to revive other
probes in the Chicago area, where the Federal Bureau of Investigation long
has suspected several terrorist cells operate. One involves alleged fund
raising for the Palestinian terrorist group Hamas that stalled in the
1990s, partly over disputes over what intelligence could be used.

Officials say such intercepts also are proving helpful in Buffalo, N.Y.,
where six Yemeni-American men are accused of supporting al Qaeda by
traveling to one of its Afghanistan training camps. One of the men, Faysal
Galab, agreed to plead guilty on Jan. 10 and cooperate with investigators;
authorities say FISA evidence was described to him during plea
negotiations. "I've got to believe there was tons of surveillance of these
guys when they got back to this country," says Joseph LaTona, the
defendant's lawyer.

In Tampa, Fla., authorities are reviewing intelligence data to energize
their long-running probe of suspended University of South Florida
computer-science professor Sami al-Arian, a suspected supporter of the
terrorist group Palestinian Islamic Jihad, lawyers involved in the case
said. Investigators say such evidence also is helping them in Dallas, where
a federal grand jury last month indicted several Palestinian activists
suspected of helping Hamas.

In most criminal cases, the government needs to show that it has "probable
cause" to believe a crime has been or is about to be committed to persuade
a judge to approve covert surveillance. Under FISA, however, the government
need only show that the target is a foreign agent and that the wiretap is
needed to protect national security.

Ever since the law was enacted in 1978, prosecutors had assumed that FISA
information was, for the most part, off limits in criminal cases. Although
allowed in limited circumstances, procedural barriers were cumbersome.
Counterintelligence agents from the FBI could give prosecutors FISA
evidence if they felt it was related to criminal activity, but prosecutors
generally couldn't tell the agents what evidence they were after or roam
through intelligence intercepts themselves. The result was a culture that
walled off counterintelligence data from criminal prosecutions, leaving
reams of wiretaps of suspected terrorists largely unavailable.

But in November, a special federal appeals court ruled that the supposed
"wall" never really existed and that, even if it had, the USA Patriot Act
enacted after the Sept. 11, 2001, attacks lowered it significantly. Civil
libertarians bemoaned the decision as a gaping loophole in long-established
Fourth Amendment protections against unreasonable searches. But Mr.
Ashcroft hailed it as a major victory, saying it "revolutionizes our
ability to investigate terrorists" -- and quietly ordered his army of
federal prosecutors to scour millions of pages of existing FISA evidence
for anything that might help put violent extremists and their supporters in
jail.

"It wasn't until the wall went down that we knew what we had," says a
senior Justice Department official.

Experts say the government likely will minimize the use of intelligence
material in criminal cases, because doing so could expose sensitive sources
and methods and allow defense attorneys to argue for permission to mine
additional intelligence material for exculpatory evidence. But several
cases illustrate how helpful such evidence can be in criminal prosecutions.

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LISTENING IN

Key dates in the rules regulating government wiretaps:
* 1967: Supreme Court rules that wiretaps fall under Fourth Amendment,
which bars "unreasonable" searches and allows warrants only "upon probable
cause." In response, Congress enacts Title III, setting rules for judicial
oversight of wiretaps in criminal cases. National-security investigations
aren't covered.
 
* 1978: Foreign Intelligence Surveillance Act adopted. Creates secret court
to approve wiretaps of foreign agents when information sought involves
national security. If tapping Americans, surveillance can't be based solely
on suspect's political views.
 
* 1979-2001: Justice Department, supervised by FISA court, limits contacts
between prosecutors and counterintelligence agents so that FISA isn't used
to evade Title III.
 
* October 2001: Congress adopts USA Patriot Act, eliminating requirement
that foreign intelligence be sole purpose of FISA wiretaps.
 
* March 2002: Attorney General Ashcroft proposes lowering "wall" between
prosecutions and counterintelligence operations.
 
* November 2002: FISA appeals court sides with Justice Department, grants
prosecutors extensive access to FISA material.
 
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The principal defendant in the Dallas case is Mousa Abu Marzouk, a top
Hamas leader whom the U.S. officially designated a terrorist in 1995. He
and six relatives are accused of money laundering, illegally shipping
computer parts to Syria and Libya and hiding his unlawful investment in a
Texas Internet company.

Until he was deported to Jordan in 1997, Mr. Marzouk was the U.S.-based
head of Hamas's political arm, and the government for years conducted
FISA-authorized surveillance of him. Eavesdropping agents, for example,
once heard him declare that a Texas-based foundation he was affiliated with
was the Palestinian resistance's "primary fund-raising entity in the United
States," according to a confidential FBI report. Such evidence now is
available in trying Mr. Marzouk's co-defendants -- five are in custody --
and Mr. Marzouk himself if he is ever brought back from Syria, where he now
openly defends anti-Israeli suicide bombings as a Hamas spokesman.

In Chicago, Mr. Fitzgerald, the U.S. attorney, quickly employed the Patriot
Act's FISA revisions in an investigation of Enaam Arnaout, a Muslim
activist indicted last year for allegedly using his nonprofit Benevolence
International Foundation to funnel money to al Qaeda. Under FISA, Mr.
Arnaout's house was searched and he was secretly recorded in 2001 and 2002
discussing the foundation's activities with a Saudi Arabian who is believed
to be a top al Qaeda financier. Additional FISA material on Mr. Arnaout
from years ago is now also available for use at his trial next month. He
has pleaded not guilty.

In the investigation of the suspended University of South Florida
professor, prosecutors have been looking into Mr. Arian for years because
he has publicly advocated the Palestinian "jihad" against Israel, praised
Palestinian suicide bombers and openly raised funds for groups linked to
them.

Federal investigators suspect that Mr. Arian and associates of Palestinian
Islamic Jihad and like-minded groups engaged in money laundering,
immigration fraud and other crimes in support of terrorists. In a 1995
affidavit, an Immigration and Naturalization Service agent said telephone
records showed contacts between Mr. Arian and Siraj el-Din, a convicted
conspirator in the 1993 bombing of the World Trade Center in New York. And
a 1996 search of Mr. Arian's residence by federal agents uncovered
documents that allegedly detail an espionage plan against the U.S.
military, federal records show.

Current and former investigators say Mr. Arian hasn't been charged in part
because some evidence of contacts with suspected terror financiers was
obtained through FISA. Now prosecutors are reviewing the evidence to see if
charges are justified, lawyers familiar with the case say.

Mr. Arian, a permanent U.S. resident, long has denied any connection to
terrorism. His attorney, Robert McKee, says he knows of no criminal action
pending against his client and that his top priority is helping the
professor hold on to his $67,500-a-year post. The state university
suspended Mr. Arian with pay after he appeared on a television talk show
after Sept. 11, 2001, and was confronted with accusations that he supported
terrorism. Backed by Florida Gov. Jeb Bush, administrators have taken steps
to fire him, a complicated process for a tenured professor.


-- 
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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