March 25, 2003

Since the 9/11 attacks, the Justice Department and FBI have dramatically increased the use of two little-known powers that allow authorities to tap telephones, seize bank and telephone records and obtain other information in counterterrorism investigations with no immediate court oversight, according to officials and newly disclosed documents.

The FBI, for example, has issued scores of "national security letters" that require businesses to turn over electronic records about finances, telephone calls, e-mail and other personal information, according to officials and documents. The letters, a type of administrative subpoena, may be issued independently by FBI field offices and are not subject to judicial review unless a case comes to court, officials said.

Attorney General John D. Ashcroft has also personally signed more than 170 "emergency foreign intelligence warrants," three times the number authorized in the preceding 23 years, according to recent congressional testimony.

Ashcroft told lawmakers earlier this month that Justice made more than 1,000 applications for FISA warrants to the secret court in 2002, including more than 170 in the emergency category. In the previous 23 years, only 47 total emergency FISA warrants were issued.

The Justice Department and FBI refuse to provide summary data about how often the letters are used. Several lawmakers have proposed legislation that would require the department to provide that kind of data.

The Justice Department has expanded its use of FISA warrants since a favorable court ruling last year, which determined that the Patriot Act gave federal officials broad new authority to obtain them.

The warrants, cloaked in secrecy and largely ignored by the public for years, have become a central issue in the ongoing debate over missteps before the Sept. 11 attacks. Even less well known are provisions that allow the Attorney General to authorize these secret warrants on his own in "emergency situations". The Justice Department then has 72 hours from the time a search or wiretap is launched to obtain approval from the FISA court, whose proceedings and findings are closed to the public.

Officials said that Ashcroft can use his emergency power when he believes there is no time to wait for the FISA court to approve a warrant. There are no additional restrictions on emergency warrants, other than the rules that apply to all FISA applications, officials said.

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