http://online.wsj.com/article_print/0,,SB1043113086596504224,00.html
The Wall Street Journal January 21, 2003 New Powers Fuel Legal Assault On Suspected Terror Supporters By GLENN R. SIMPSON and JESS BRAVIN Staff Reporters of THE WALL STREET JOURNAL WASHINGTON -- Quietly deploying new powers to use intelligence data in criminal cases, federal authorities are intensifying legal assaults on suspected terrorist supporters in the U.S. Encouraged by Attorney General John Ashcroft, prosecutors across the country are aggressively taking advantage of a November appeals-court decision and a new law giving them greater leeway to use evidence from wiretaps and other communication intercepts secretly authorized under the Foreign Intelligence Surveillance Act. Under FISA, a secret court in Washington authorizes surveillance of suspected foreign agents -- including searches, wiretaps and mail intercepts -- based on much less evidence of suspected wrongdoing than is required in typical criminal cases. Law-enforcement authorities say such information -- previously largely unavailable for criminal prosecutions -- is breathing new life into numerous antiterrorism cases or significantly strengthening them. In Chicago, U.S. Attorney Patrick Fitzgerald is using intelligence evidence to bolster his case against a Muslim activist indicted for allegedly helping to finance al Qaeda, Osama bin Laden's terrorist organization. And he is hoping to use such intelligence and other evidence to revive other probes in the Chicago area, where the Federal Bureau of Investigation long has suspected several terrorist cells operate. One involves alleged fund raising for the Palestinian terrorist group Hamas that stalled in the 1990s, partly over disputes over what intelligence could be used. Officials say such intercepts also are proving helpful in Buffalo, N.Y., where six Yemeni-American men are accused of supporting al Qaeda by traveling to one of its Afghanistan training camps. One of the men, Faysal Galab, agreed to plead guilty on Jan. 10 and cooperate with investigators; authorities say FISA evidence was described to him during plea negotiations. "I've got to believe there was tons of surveillance of these guys when they got back to this country," says Joseph LaTona, the defendant's lawyer. In Tampa, Fla., authorities are reviewing intelligence data to energize their long-running probe of suspended University of South Florida computer-science professor Sami al-Arian, a suspected supporter of the terrorist group Palestinian Islamic Jihad, lawyers involved in the case said. Investigators say such evidence also is helping them in Dallas, where a federal grand jury last month indicted several Palestinian activists suspected of helping Hamas. In most criminal cases, the government needs to show that it has "probable cause" to believe a crime has been or is about to be committed to persuade a judge to approve covert surveillance. Under FISA, however, the government need only show that the target is a foreign agent and that the wiretap is needed to protect national security. Ever since the law was enacted in 1978, prosecutors had assumed that FISA information was, for the most part, off limits in criminal cases. Although allowed in limited circumstances, procedural barriers were cumbersome. Counterintelligence agents from the FBI could give prosecutors FISA evidence if they felt it was related to criminal activity, but prosecutors generally couldn't tell the agents what evidence they were after or roam through intelligence intercepts themselves. The result was a culture that walled off counterintelligence data from criminal prosecutions, leaving reams of wiretaps of suspected terrorists largely unavailable. But in November, a special federal appeals court ruled that the supposed "wall" never really existed and that, even if it had, the USA Patriot Act enacted after the Sept. 11, 2001, attacks lowered it significantly. Civil libertarians bemoaned the decision as a gaping loophole in long-established Fourth Amendment protections against unreasonable searches. But Mr. Ashcroft hailed it as a major victory, saying it "revolutionizes our ability to investigate terrorists" -- and quietly ordered his army of federal prosecutors to scour millions of pages of existing FISA evidence for anything that might help put violent extremists and their supporters in jail. "It wasn't until the wall went down that we knew what we had," says a senior Justice Department official. Experts say the government likely will minimize the use of intelligence material in criminal cases, because doing so could expose sensitive sources and methods and allow defense attorneys to argue for permission to mine additional intelligence material for exculpatory evidence. But several cases illustrate how helpful such evidence can be in criminal prosecutions. ------ LISTENING IN Key dates in the rules regulating government wiretaps: * 1967: Supreme Court rules that wiretaps fall under Fourth Amendment, which bars "unreasonable" searches and allows warrants only "upon probable cause." In response, Congress enacts Title III, setting rules for judicial oversight of wiretaps in criminal cases. National-security investigations aren't covered. * 1978: Foreign Intelligence Surveillance Act adopted. Creates secret court to approve wiretaps of foreign agents when information sought involves national security. If tapping Americans, surveillance can't be based solely on suspect's political views. * 1979-2001: Justice Department, supervised by FISA court, limits contacts between prosecutors and counterintelligence agents so that FISA isn't used to evade Title III. * October 2001: Congress adopts USA Patriot Act, eliminating requirement that foreign intelligence be sole purpose of FISA wiretaps. * March 2002: Attorney General Ashcroft proposes lowering "wall" between prosecutions and counterintelligence operations. * November 2002: FISA appeals court sides with Justice Department, grants prosecutors extensive access to FISA material. ------- The principal defendant in the Dallas case is Mousa Abu Marzouk, a top Hamas leader whom the U.S. officially designated a terrorist in 1995. He and six relatives are accused of money laundering, illegally shipping computer parts to Syria and Libya and hiding his unlawful investment in a Texas Internet company. Until he was deported to Jordan in 1997, Mr. Marzouk was the U.S.-based head of Hamas's political arm, and the government for years conducted FISA-authorized surveillance of him. Eavesdropping agents, for example, once heard him declare that a Texas-based foundation he was affiliated with was the Palestinian resistance's "primary fund-raising entity in the United States," according to a confidential FBI report. Such evidence now is available in trying Mr. Marzouk's co-defendants -- five are in custody -- and Mr. Marzouk himself if he is ever brought back from Syria, where he now openly defends anti-Israeli suicide bombings as a Hamas spokesman. In Chicago, Mr. Fitzgerald, the U.S. attorney, quickly employed the Patriot Act's FISA revisions in an investigation of Enaam Arnaout, a Muslim activist indicted last year for allegedly using his nonprofit Benevolence International Foundation to funnel money to al Qaeda. Under FISA, Mr. Arnaout's house was searched and he was secretly recorded in 2001 and 2002 discussing the foundation's activities with a Saudi Arabian who is believed to be a top al Qaeda financier. Additional FISA material on Mr. Arnaout from years ago is now also available for use at his trial next month. He has pleaded not guilty. In the investigation of the suspended University of South Florida professor, prosecutors have been looking into Mr. Arian for years because he has publicly advocated the Palestinian "jihad" against Israel, praised Palestinian suicide bombers and openly raised funds for groups linked to them. Federal investigators suspect that Mr. Arian and associates of Palestinian Islamic Jihad and like-minded groups engaged in money laundering, immigration fraud and other crimes in support of terrorists. In a 1995 affidavit, an Immigration and Naturalization Service agent said telephone records showed contacts between Mr. Arian and Siraj el-Din, a convicted conspirator in the 1993 bombing of the World Trade Center in New York. And a 1996 search of Mr. Arian's residence by federal agents uncovered documents that allegedly detail an espionage plan against the U.S. military, federal records show. Current and former investigators say Mr. Arian hasn't been charged in part because some evidence of contacts with suspected terror financiers was obtained through FISA. Now prosecutors are reviewing the evidence to see if charges are justified, lawyers familiar with the case say. Mr. Arian, a permanent U.S. resident, long has denied any connection to terrorism. His attorney, Robert McKee, says he knows of no criminal action pending against his client and that his top priority is helping the professor hold on to his $67,500-a-year post. The state university suspended Mr. Arian with pay after he appeared on a television talk show after Sept. 11, 2001, and was confronted with accusations that he supported terrorism. Backed by Florida Gov. Jeb Bush, administrators have taken steps to fire him, a complicated process for a tenured professor. -- ----------------- R. A. Hettinga <mailto: [EMAIL PROTECTED]> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to [EMAIL PROTECTED]