Controversy undermines effort to strengthen FBI's investigation powers
WASHINGTON (AP) -- The political fallout over Justice Department missteps has sidetracked fledgling discussions aimed at helping the FBI establish itself as a pre-eminent domestic intelligence agency.
A classified FBI report said last year that existing laws on electronic surveillance are inadequate to investigate homegrown Islamic extremists. In little-noticed testimony, FBI Director Robert Mueller raised the issue before the Senate several months ago.
And, in a recent interview just before the turmoil at the Justice Department erupted, the head of its new national security division said congressional aides have had early discussions about whether the FBI needs new tools to investigate U.S.-born terror suspects who lack links to foreign organizations.
"These homegrown terrorists sort of occupy a middle ground," Assistant Attorney General Kenneth Wainstein told The Associated Press. "They don't necessarily have a connection to international terrorism. ... On the other hand, they are not just quintessential criminals, where all we are concerned about is developing evidence of crimes they have already committed."
The question, Wainstein said, is "should there be some sort of middle ground, where you have a tool -- let's say the wiretapping context -- that you can use more for national security investigative purposes?"
He said officials were still looking for an answer. But several government and congressional officials, who recently spoke on condition of anonymity given the already tense political situation, said Congress won't support giving the department any new powers soon.
In fact, the administration is giving up power rather than asking for more. Reversing a change made one year ago, Congress has voted to strip the attorney general's authority to appoint U.S. attorneys without Senate confirmation, after the Bush administration fired eight people in those positions. And the FBI has been admonished following an inspector general's report about bad bookkeeping and other abuses involving its USA Patriot Act powers to secretly demand Americans' e-mail, travel, financial and other personal records.
The House Intelligence Committee is scheduled to hold a hearing Wednesday into the misuse of these administrative subpoenas, called national security letters. On Tuesday, Mueller urged the Senate Judiciary Committee to let him fix the process and keep the power.
"The statute did not cause the errors," Mueller said. "The FBI's implementation did."
That didn't impress some lawmakers. "Last year the administration sought new powers in the Patriot Act to appoint U.S. attorneys without Senate confirmation and to more freely use national security letters," said committee chairman Patrick Leahy, D-Vt. "The administration got these powers, and they have badly bungled both."
Justice Department officials said any of the early discussions with Congress about the FBI's authorities to investigate homegrown terror suspects were only about concepts, and no legislation was drafted.
The FBI can't use its intelligence tools to investigate U.S. citizens and permanent residents on their home turf unless those suspects are linked to al-Qaida or other foreign powers. In those cases, the bureau has to use tools established for traditional criminal investigations.
In December, Mueller told senators that the intelligence tools are a faster way for investigators to access suspicious communications.
Proposing a dramatic departure from current practice, Mueller said he would like to explore using the process set up under Foreign Intelligence Surveillance Act to obtain secret warrants for searches and wiretaps for suspects who do not meet the law's current requirements but still present that type of intelligence threat.
Civil liberties advocates say the Justice Department and FBI already have plenty of power to investigate intelligence cases.
Kate Martin, head of the Center for National Security Studies, noted that the Justice Department has prosecuted a number of people who haven't done anything yet but have been in the early stage of planning attacks. "That is evidence that the FBI has the tools they need," she said.
Rep. C.A. Dutch Ruppersberger, D-Md., and others in Congress are weighing whether the government needs to update its surveillance laws in an era of cell phones, the Internet and other emerging technologies. For instance, the Justice Department wants to require Internet providers to retain more records for longer periods to help trace Internet activity back to suspects in child pornography and terrorism cases.
"We very quickly have to stand the FBI up in the area of intelligence," said Ruppersberger, a former prosecutor and chairman of the House Intelligence Committee's panel on technical and tactical intelligence.
He said the Justice Department, the Intelligence Committee and other panels are working to review electronic surveillance laws to ensure that the FBI and other agencies have enough legal authorities. He plans to issue a report, he hopes followed by a bill, but he declined to offer any specifics.
"It's (about) bringing us to the modern age," he said. "This is a bipartisan issue."
At a hearing in January, Ruppersberger noted that a recent FBI intelligence report suggested existing laws on electronic surveillance are inadequate to investigate homegrown Islamic extremists.
Many members of Congress believe they already gave the FBI enough wiggle room when, in 2004, they amended the FISA law to allow the FBI to go after so-called "lone wolves" -- people who may be plotting to attack the United States but are not tied to a foreign power.
But Mueller has said that provision only gave them new powers to investigate foreign-born individuals. If a U.S. citizen is inspired to start a domestic jihad, officials worry their investigative tools may not be nimble enough.
"We are trying to get intelligence to prevent them from undertaking the next attack," Wainstein said.
(Copyright 2007 by The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)