July 9, 2004 By Jim McKay, Editor
The wall resulted from the Foreign Intelligence Surveillance Act (FISA) of 1978, which sought to protect citizens from excessive government intrusion. Under FISA, law enforcement could obtain permission from a federal judge to electronically monitor an individual if the "primary purpose" was to obtain foreign intelligence. Information gathered through these means, however, couldn't be shared for domestic law enforcement purposes.
Under FISA, law enforcement could go to a federal judge, suggest there was reason to believe an individual was dealing with suspected terrorists or terrorist countries, and get approval to monitor that individual with a wiretap or other means.
The court's expectation was that information gathered under a FISA subpoena would not be shared -- not even with another law enforcement officer conducting a criminal investigation. No overlap between criminal investigations and intelligence investigations was allowed. That was to prevent law enforcement from getting foreign-intelligence-gathering subpoenas, which are easier to obtain, and using them for other purposes -- thus the wall.
The Patriot Act, under Title II, does two things: It allows FISA subpoenas for the "significant purpose" of foreign intelligence gathering, rather than for the "primary purpose." It also allows law enforcement to share the information gathered from that subpoena.
The Patriot Act, according to law enforcement, has enabled them to "connect the dots" on suspected terrorists by trading information and piecing together clues, which was more difficult before the act. As proof, law enforcement points to arrests in Portland, Ore., Detroit and New York, and the fact that there have been no more attacks.
In the Portland arrests, sheriffs in neighboring Washington state linked a criminal case to suspected terrorists, which couldn't have been done before the Patriot Act. In Detroit, a man sought by terrorism investigators was held on charges of credit card fraud.
"Whether it's Portland, Detroit or New York, and several others I can't talk about, the information sharing enabled by the Patriot Act enabled us to bring these cases [to trial]," said U.S. Justice Department Director of Public Affairs Mark Corallo. "It has made all the difference in the world. FBI counterintelligence and FBI regular law enforcement couldn't talk in the past."
John Pikus, acting special agent in charge for the Sacramento, Calif., FBI office, said the Patriot Act eliminated frustration felt by agents in recent years.
"An intelligence investigation on some overseas figure may have had contact with people domestically, but we weren't allowed to know that," he said. "That information just never got passed to the criminal guys."
Terrorists often engage in other criminal activities, sometimes to supplement their terrorism efforts, Pikus said, so law enforcement must be allowed to combine criminal and intelligence forces. "It could be that you're doing drug stuff to supplement your terrorism or you're moving contraband to move money overseas to the terrorist organization," he said. "Up until the Patriot Act, if I had a FISA wiretap on you, I could not do a criminal case against you. I'd have to assign it to another agent."
Critics of the FISA court call it the "secret court" because rulings made there are classified. "But we all know it's there, and we all know who the judges are," Corallo said.
The FISA judges, 11 district court judges, have the authority to grant a subpoena to investigate a non-U.S. citizen believed to be engaged in international terrorism or foreign spying, or if the case involves national security, according to Corallo.
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