Seeking Public Record of Landmark Hearing

Bellows writes, "This system appears to have worked quite satisfactorily while Mary Lawton was the head of OIPR, both from the perspective of the Criminal Division and from that of the FBI." But when she died, she was replaced by another career prosecutor, Richard Scruggs, who was horrified by the lack of written guidelines governing contacts between prosecutors and FBI agents conducting intelligence investigations. Scruggs told Bellows, "It was a really sloppy operation under Mary."

Scruggs' elevation to chief of OIPR "coincided with issues arising from the investigation of Aldrich Ames." In short, Scruggs was concerned that contacts between the agents and prosecutors "could be used by defense counsel to cast doubt upon the 'primary purpose' of the FISA surveillance and thereby jeopardize the prosecution." He told AG Reno that she might even be called as a witness at trial since she had authorized the questionable searches. He "ginned her up," in the words of one Criminal Division official, Mark Richard. The Ames matter worked out; the former CIA officer pleaded guilty to espionage charges in order to obtain a better deal for his wife. But Reno ordered Scruggs to "make sure this did not happen again."

The result was the 1995 guidelines which all now seem to believe swung the pendulum way too far in the other direction.

What’s 20 Years?

DOJ's witness at the hearing was career prosecutor David Kris, who's considered so valuable in these matters he's actually handled them for both Reno and Ashcroft. Technically, he's an associate deputy attorney general. In both his testimony before the committee, and in the department's appeal brief, which he largely drafted, Kris maintained that under FISA the definition of "foreign intelligence information" includes information needed to protect against espionage and terrorism. And one way to protect is to prosecute; "[p]rosecution is not the only way, but it's one way to protect the country. As a result, information needed as evidence in such a prosecution is itself 'foreign intelligence information' …"

But he may have gone one step too far in quoting Leahy as having supported the idea that, as Leahy put it, "there is no longer a distinction between using FISA for a criminal prosecution and using it to collect foreign intelligence. That was not and is not my belief. Had the Justice Department taken the time to pick up the phone, I would have told them that is not my belief! … We sought to amend FISA to make it a better foreign intelligence tool. But it was not the intent of these amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool."

And when Leahy accusingly said to Kris, you're trying to change 20 years' way of doing things, Kris was in complete agreement: Yes, he replied equably, I do think we're trying to change — and we're pretty overt about it — 20-plus years; I do think that's what the Patriot Act allows.

Stay tuned!

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice normally appears every Saturday, but will not appear for the next two weeks.

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