WASHINGTON - The government's use of secret surveillance warrants to track spies and terrorists surged to a record high in 2003, surpassing for the first time the number of wiretaps sought by law enforcement in traditional criminal cases.

The new figures released Saturday show the extent to which the Justice Department and the FBI have shifted their focus to battling terrorism in the wake of the Sept. 11 attacks and, in the process, turned to the nation's secret "spy court" for legal permission to do so.

"There's been a fundamental change in the way the government conducts surveillance," said David Sobel, general counsel for the Electronic Privacy Information Center. "And the result is a lot more secrecy and lot less accountability."

Federal agents sought 1,727 warrants from the Foreign Intelligence Surveillance Court for electronic eavesdropping and physical searches last year, according to a Justice Department filing with Congress. Just four applications were rejected, although two of them were later revised and approved. The number of so-called FISA warrants jumped by 500 from 2002 and has almost doubled since 2001 when 934 applications were approved.

By comparison, there were 1,442 wiretap petitions in federal and state courts for crimes like drugs and racketeering, according to a separate report from the Administrative Office of U.S. Courts.

Attorney General John Ashcroft said the new FISA figures show the Justice Department "is deploying its legal resources to uncover and prevent terrorist attacks on Americans."

"To keep the United States and its people safe, it is critical that the Department of Justice use every legal means to detect, deter and disrupt foreign terrorists and their activities here in America," Ashcroft said.

But critics of the government's surveillance efforts called the sharp increase worrisome because the work of the FISA court is conducted in secret and allows a lower standard of proof. It's generally tougher for a prosecutor to get permission for traditional wiretaps because they must demonstrate that there is probable cause that a suspect engaged in a crime. There's no such requirement when agents are seeking to gather intelligence from a suspected spy or terrorist.

"It's alarming," said Timothy Edgar, legislative counsel for the American Civil Liberties Union. "We now know that most government surveillance today is supervised by a secret court that does not operate under the parameters of probable cause."

Indeed, the number of FISA applications has grown so dramatically that a recent report by the commission investigating the Sept. 11 attacks warned that a bottleneck had developed at the Justice Department, where federal prosecutors had fallen behind in processing the deluge of applications.

Passed by Congress in 1978, the Foreign Intelligence Surveillance Act created a new court to oversee highly sensitive law enforcement activities related to espionage or terrorism. The Patriot Act, passed in the aftermath of the Sept. 11 attacks, broadened the government's ability to seek warrants through the secretive 11-member court by essentially knocking down the once-sacrosanct wall that divided intelligence and law enforcement.

The Patriot Act has become controversial, with critics accusing it of infringing on civil liberties. President Bush has said it is essential to the war on terrorism and, in a recent series of public appearances, urged Congress to renew some portions of the law that are set to expire in 2005.

The new secret eavesdrop statistics were disclosed as the House Judiciary Committee prepares to take up a bill in the coming week that would expand the government's police surveillance powers even further.

The Anti-Terrorism Intelligence Tools Improvement Act is sponsored by two powerful Republicans in the House of Representatives, Reps. James Sensenbrenner, R-Wis., chairman of the Judiciary Committee and Porter Goss, R-Fla., chairman of the Permanent Select Committee on Intelligence.

Among other things the bill would make it a crime for a business or person who receives a national security letter from the FBI demanding information to disclose that contact. The government could prosecute the recipient if he or she failed to comply.

National security letters, which are used to obtain financial records, telephone logs and other data, are not subject to judicial oversight.

The ACLU is suing over the letters' use. The FBI has declined to say how often they use them.

© 2004 KR Washington Bureau

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