Special espionage court rejected some wiretap guidelines

WASHINGTON -- A special court that oversees sensitive law enforcement surveillance forced Attorney General John Ashcroft to change his guidelines for FBI terrorism searches and wiretaps, according to documents released Thursday.

The U.S. Foreign Intelligence Surveillance Court, which has not publicly disclosed any of its rulings in nearly two decades, rejected some of the Ashcroft guidelines in May as "not reasonably designed" to safeguard Americans privacy.

The Justice Department amended its guidelines and won court approval. Nevertheless, Bush administration officials said Thursday they have appealed the restrictions, arguing the new limits inhibit the sharing of information between terrorism investigators and criminal detectives.

Hampered law's use

Justice Department spokeswoman Barbara Comstock said the court has severely hampered the use of a broad anti-terrorism law that expanded the government's power to monitor people when terrorism is suspected.

"They have in our view incorrectly interpreted the Patriot Act, and the effect of that incorrect interpretation is to limit the kind of coordination that we think is very important," Comstock said.

The Justice Department declined to release a copy of the appeal Thursday night to reporters.

The court also disclosed the FBI acknowledged making more than 75 mistakes in applications for espionage and terrorism warrants under surveillance law, including one instance where former Director Louis Freeh gave inaccurate information to judges.

The court's May 17 orders, signed by U.S. District Judge Royce Lamberth, were disclosed Thursday to the Senate Judiciary Committee, which has raised questions about the Justice Department's use of wiretap laws in espionage and terrorism cases.

Ashcroft's instructions in March, in a memorandum to FBI Director Robert Mueller and senior Justice officials, made it easier for investigators in espionage and terrorism cases to share information from searches or wiretaps with FBI investigators.

Misuse of information

But the surveillance court, which approves requests during secret deliberations, found that Ashcroft's rules could allow misuse of information in criminal cases, where prosecutors must meet higher legal standards to win approval for searches or wiretaps.

"These procedures cannot be used by the government to amend the (surveillance) act in ways Congress has not," the court wrote. In its rare public rebuke, it said the Justice Department spent "considerable effort" arguing its case, "but the court is not persuaded."

Ashcroft had argued that, under changes authorized by the USA Patriot Act, the FBI could use the surveillance law to perform searches and wiretaps "primarily for a law enforcement purpose, so long as a significant foreign intelligence purpose remains."

The Patriot Act, passed late in 2001, changed surveillance law to permit its use when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of such an investigation. Critics at the time said they feared government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.

"The attorney general seized authority that has not been granted to him by the constitution or the Congress," said Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center.