FBI counterterrorism surveillance efforts will be overseen by a secret court instead of the public criminal courts, resulting in even more clandestine searches and wiretaps. So says Dan Eggen in a Washington Post story this morning. Effective immediately, law enforcement and intelligence agencies will be able to conduct secret searches and seizures without the verification of a traditional criminal warrant. Civil libertarians see the new policy as a subversion of the Fourth Amendment of the U.S. Constitution.
The new policy was finalized in a classified directive that was issued in October and will allow intelligence and criminal investigators to work cooperatively. The cozy relationship between the intelligence and law enforcement communities was severed in the wake of the FBI’s COINTELPRO scandals in the 1970s.
According to the Washington Post report, the FBI claims the new policy has resulted in the disruption of at least four planned attacks offshore and the uncovering of a terrorist sleeper cell within the United States. Details regarding these claims were not disclosed. Although the number of counterterrorism investigations is classified, government officials told the Washington Post that there are currently more than 1,000 such cases pending.
From the Washington Post report:
“The overhaul of the FBI’s counterterrorism policies began earlier this year with a classified document called the Model Counterterrorism Investigations Strategy (MCIS), officials said. The strategy stems from a November 2002 decision by an intelligence appeals court, which ruled that the anti-terrorism USA Patriot Act permits intelligence investigators and criminal prosecutors to more easily share information about terrorism cases.
“The MCIS and other rules effectively put that finding into practice by reworking the way terrorism cases are handled by the FBI, and by requiring that both criminal and intelligence investigators physically work as part of the same squads on terrorism investigations, officials said. FBI officials declined to release copies of the MCIS or a related Oct. 1 directive, citing national security restrictions, but agreed to describe the outlines of the process.”
Previously, the FBI could open terrorism investigations for the purpose of either developing a criminal case or gathering intelligence, but not both. Now, all terrorism investigations are opened as intelligence investigations, and the information obtained can be used for either purpose. Where previous investigations were subject to oversight by the criminal court system and the secret Foreign Intelligence Surveillance Court (FISA Court), all future investigations are overseen only by the FISA Court.
According to the Washington Post report, FBI terrorism chief, John F. Pistole, told the newspaper that “focusing on intelligence gathering will improve the ability of the FBI to prevent, rather than just investigate, terrorist attacks… and that the new system will result in less emphasis on bringing criminal charges against suspects in favor of longer surveillance operations.” This statement begs the question: at what point will the FBI begin to engage in preemptive measures to “prevent” terrorist attacks. Or, more importantly, has it already?
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