Breach in 'the wall' opened intelligence to investigatorsBy MARY JACOBY, Times Staff Writer
© St. Petersburg Times
published February 21, 2003
WASHINGTON -- Law enforcement officials called it "the wall." And when it came down last November, criminal investigators pursuing Sami Al-Arian suddenly found themselves awash in critical new evidence for their case.
Intercepted phone conversations and faxes. Human sources. Financial trails. Classified information collected for a decade by Federal Bureau of Investigation intelligence agents was now being shared with Department of Justice criminal prosecutors.
So what tore down this once inviolable wall between the FBI's intelligence and criminal investigations divisions? The answer is a special court ruling last November clarifying that the two sides could, in fact, work together.
For years, the Justice Department assumed that the wall could not be breached. Beginning in the 1980s, the department issued guidelines meant to guard civil liberties by holding criminal investigators to high federal standards for engaging in wiretapping or searches.
A lower bar existed for electronic surveillance conducted purely for intelligence-gathering purposes. And these requests for intelligence-only wiretaps were reviewed in Washington by an obscure panel of judges who make up the Foreign Intelligence Surveillance Court.
For years, Justice Department officials believed wiretaps granted by that court could never be used to prosecute criminals.
In a Nov. 18, 2002, decision, an appeals court said that assumption was wrong. It said law enforcement officials had consistently misinterpreted the 1978 Foreign Intelligence Surveillance Act, known as FISA.
The 1978 law authorizes FBI agents to investigate suspected "agents of a foreign power" operating in the United States who are believed to be engaged in spying or international terrorist activities.
"It is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department's ability to obtain FISA orders if it intended to prosecute the targeted agents," the ruling of the U.S. Foreign Intelligence Surveillance Court of Review said.
The review court said that by definition, spies or international terrorists are violating the criminal laws of the United States. Therefore, the court said, it made no sense to block their prosecution just because evidence was obtained by wiretaps approved by the FISA court.
In a news conference Thursday, Attorney General John Ashcroft called the Al-Arian indictment "one of the very valuable benefits" of demolishing the wall between the intelligence agents and law enforcement.
The indictment details dozens of communications secretly monitored by federal authorities since the early 1990s in which Al-Arian wrangles with other accused Palestinian Islamic Jihad leaders over nuts-and-bolts issues of running the terror group.
In 1994, the group was in financial straits and under pressure from their sponsor, Iran, to clean up spending practices, the indictment says. It says Al-Arian was asked to conduct an audit and then fought fiercely to see his proposed financial reforms accepted.
"This investigation, which culminated today in the unsealing of the indictment, was significantly aided by the now-declassified intercepted faxes and telephone calls," Paul Perez, the U.S. attorney for the Middle District of Florida, said in an interview Thursday.
There were, however, many obstacles to the indictment.
One hurdle for criminal investigators was that their evidence centered on activities that occurred in the early and mid 1990s. It was not until 1996 that a stronger antiterrorism law was enacted to make it easier to charge suspected terrorists. And it wasn't until 1997 that the State Department designated Palestinian Islamic Jihad as a "foreign terrorist organization."
A couple of years ago, prosecutors prepared an indictment of Al-Arian based on the federal Racketeer-Influenced and Corrupt Organizations Act. But internal debate in the Department of Justice over that strategy kept prosecutors from filing that indictment.
Investigators knew the FBI's intelligence arm had gathered evidence on al-Arian's World and Islam Studies Enterprise, a think tank based at the University of South Florida. But rules keeping intelligence and criminal investigations separate prevented prosecutors from gaining access to that classified information.
This hands-off attitude, however, came under fresh scrutiny after the Sept. 11, 2001, attacks. Congress quickly passed a new antiterrorism law, the 2001 Patriot Act, that sought to clarify when intelligence information could be used in criminal investigations. Ashcroft quickly wrote new rules to break down the wall.
After the Foreign Intelligence Surveillance Court initially rejected Ashcroft's move to change the rules, Justice Department lawyers appealed. That prompted the first and only decision ever handed down by the Foreign Intelligence Surveillance Court of Review, the rarely used appeals panel.
In their Nov. 18 decision, judges Ralph B. Guy, Edward Leavy and Laurence Hirsch Silberman -- all semiretired appeals judges originally appointed by Ronald Reagan to the bench -- radically changed the landscape for terror prosecutions.
"The government argues persuasively that arresting and prosecuting terrorist agents of, or spies for, a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity," the appeals panel said.
And with that, FBI intelligence agents and criminal investigators began working together, ultimately resulting in Thursday's indictment.
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