By JAMES RISEN (NYT) 987 words
TRACES OF TERROR: INTELLIGENCE GATHERING; Bid to Ease Spying Curbs In Terrorism
Published: August 1, 2002
WASHINGTON, July 31 - Flaws in the F.B.I.'s handling of the Zacarias Moussaoui case before Sept. 11 are prompting Congressional leaders and the Bush administration to try to make it easier for the government to obtain secret wiretaps and search warrants to investigate foreigners suspected of involvement in terrorist plots.
At a Congressional hearing today, lawyers for the Justice Department, Federal Bureau of Investigation and the Central Intelligence Agency all expressed support for legislation in the Senate that would lower the standards of evidence required to obtain court approval for secret wiretaps in investigations of foreign terrorists and spies.
Under the rules in use last summer, F.B.I. officials did not believe they had enough evidence against Mr. Moussaoui before Sept. 11 to prove that he was an agent of a foreign power or had connections to an international terrorist group. He now faces trial in federal court, accused of being the 20th hijacker.
Under the legislation, sponsored by Senator Charles E. Schumer, Democrat of New York, and Senator Jon Kyl, Republican of Arizona, the Justice Department would no longer have to convince a special court that a suspect was an agent of a foreign power or a member of an international terrorist organization to obtain a wiretap under the Foreign Intelligence Surveillance Act.
That change would ease standards of evidence that are already considered lower than those required in regular criminal cases. The law was intended to allow the F.B.I. and the Justice Department to ask a secret court for approval to eavesdrop on suspected spies or terrorists not yet subjects of criminal investigations.
Officials at F.B.I. headquarters did not seek court approval for a warrant under the law to search Mr. Moussaoui's computer and other belongings. Mr. Moussaoui, a French citizen of Moroccan descent, was detained in August 2001 on immigration charges in Minnesota, after officials at a flight school told the F.B.I. that they were suspicious about his reasons for wanting to learn to fly large jets. F.B.I. agents in Minneapolis asked the agency's headquarters to obtain court approval to search his belongings, but the headquarters officials did not believe the agents in the field had enough evidence.
After the terrorist attacks, the F.B.I. obtained a search warrant and found information on his computer related to crop-dusting, prompting fears that he might have been part of a secondary Qaeda plot to spread chemical or biological weapons from the air.
In addition, a search of a home in Oklahoma City where Mr. Moussaoui had been living turned up a letter and business card connecting him to a Malaysian man who also had ties to at least two of the Sept. 11 hijackers.
The Malaysian man, Yazid Sufaat, is believed to have helped arrange a January 2000 meeting in Malaysia of Qaeda operatives, including two of the hijackers. The C.I.A. knew about that meeting long before Sept. 11, but since Mr. Moussaoui's belongings were not searched before Sept. 11, the F.B.I. did not know about his ties to Mr. Sufaat before then.
''We've learned from the disclosures regarding Zacarias Moussaoui, the so-called 20th hijacker, that even though the F.B.I. had abundant reason to be suspicious of him before 9/11, it didn't act,'' Mr. Schumer said today at the hearing of the Senate Select Committee on Intelligence. ''It didn't seek a warrant to try to dig up the evidence that may have been the thread which, if pulled, would have unraveled the terrorists' plans. And one reason the F.B.I. didn't seek that warrant is that the bar for getting those warrants is set too high.''
James Baker, the Justice Department's counsel for intelligence policy, testified that the Bush administration supported the proposed bill. Mr. Baker said the administration had not yet taken a position on a second bill, sponsored by Senator Mike DeWine, Republican of Ohio, which would lower the standards by making it possible for the F.B.I. to obtain secret wiretaps based on ''reasonable suspicion'' rather than ''probable cause.''
The proposals to ease the standards for wiretaps and search warrants under the present law follow the enactment of the U.S.A.-Patriot Act, which has already expanded the ability of the intelligence community to collect and distribute information on suspected terrorists operating in the United States. The patriot act made it far easier for the F.B.I. and Justice Department to share information obtained from domestic investigations with the C.I.A., which is legally barred from conducting domestic espionage.
Frederic Manget, the C.I.A.'s deputy counsel, told the Senate committee that the C.I.A.'s access to material gathered from wiretaps in the United States has dramatically increased since the patriot act was signed into law.
The drive for further easing of the legal standards covering secret wiretaps and secret searches of homes and possessions of suspected terrorists raised concerns among civil liberties groups.
''Our reasons should be compelling, and the case for expansion carefully documented'' before the law is expanded, said Jerry Berman, executive director of the Center for Democracy and Technology. ''The argument that these lower standards apply to aliens ignores the fact that our Bill of Rights."