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U.S. reviewing old, secret surveillance files in terrorism investigations
Ted Bridis, The Associated Press 2003-06-04

Government prosecutors are reviewing years worth of sensitive telephone and e-mail wiretaps and results from secret searches to decide whether they can file criminal charges against suspected terrorists in the United States.

Senior prosecutors from across the country met Wednesday at the Justice Department with Attorney General John Ashcroft, who ordered the review. They said the examination of more than 4,500 intelligence files is guiding the government's pursuit of what Ashcroft described as "hundreds and hundreds" of suspected terrorists in this country.

The wiretaps and searches were performed during the past 25 years on suspected spies and terrorists under the 1978 Foreign Intelligence Surveillance Act. With permission from a super-secret U.S. spy court, the FBI has used such warrants to break into homes, offices and hotel rooms to install hidden cameras, copy computer files and eavesdrop on telephones. Agents also have intercepted e-mails and pried into safe deposit boxes.

Criminal prosecutors previously were not entitled to the contents of intelligence files, which were limited under Justice Department policies to government espionage and counterterrorism experts. But a court ruling this year lowered that wall, allowing the review of old surveillance.

"All U.S. attorney offices around the country are looking at the closed and open intelligence investigations to review for criminal purposes nationwide," said Patrick Fitzgerald, the U.S. attorney for the northern district of Illinois. "I'm not forecasting who, what, when and where we'll bring whatever in the future, but it's not limited to any one U.S. attorney's office."

In many cases, these secret wiretaps and searches are so sensitive -- even years after they occur -- that prosecutors may never hint in court records that a defendant was the target of such surveillance.

"That review ... may result in us getting somebody off the street and incapacitating them on fraud charges, but that doesn't mean the terror information or the intelligence information ever will be made public," said Alice Fisher, the deputy U.S. assistant attorney general for the Justice Department's criminal division.

Some private lawyers and civil liberties groups have cautioned that increased use of secret surveillance warrants could force judges to give defendants more freedom to challenge evidence collected during these wiretaps or searches. Citing national security concerns, prosecutors typically are not compelled to share full details of such surveillance.

"The pressure will build to ensure that evidence is subject to cross-examination," predicted Beryl A. Howell, a Washington lawyer with expertise on the surveillance law and former chief counsel for the Senate Judiciary Committee.

The government has charged some suspected terrorists with money laundering, immigration violations or identity fraud, a tactic that U.S. Attorney Robert Conrad of North Carolina described as a "kitchen-sink approach."

U.S. Attorney Paul McNulty of Virginia, whose office is responsible for the terrorism case against Zacarias Moussaoui, said the intelligence review allows federal prosecutors to "make sure we are aware of who is out there in the community and that we know what they're doing and be able to make some enforcement decisions as a result."

Nine of these senior U.S. prosecutors _ most of whom have handled prominent terrorism cases _ met privately with Ashcroft earlier in the day and proposed changes to U.S. laws and government policies. They declined afterward to discuss details of their conversations.

Ashcroft only alluded to changes the Bush administration might request from Congress.

"We must constantly learn. We must adapt," Ashcroft said. "We must out think, and we must anticipate the actions of our enemies."

Ashcroft quickly left the discussion with prosecutors after brief remarks. He ignored questions shouted from reporters about an audit released this week by Justice investigators who identified "significant problems" with the detention of 762 foreigners in the months after the Sept. 11 attacks.

But Ashcroft appeared unfazed by criticism in the report. He included in a list of the government's accomplishments in its war on terror the deportation of 515 of those 762 foreigners whom he said were "linked to the September 11 investigation."

The audit, among other things, criticized the FBI for making "little attempt" to distinguish between immigrants who were subjects of the Sept. 11 terror investigation and those encountered coincidentally to it.

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