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Los Angeles Times - latimes.com

By Richard B. Schmitt, Times Staff Writer

WASHINGTON -- The Justice Department has stepped up use of a secretive process that enables the attorney general to personally authorize electronic surveillance and physical searches of suspected terrorists, spies and other national-security threats without immediate court oversight.

Atty. Gen. John Ashcroft told the Senate Judiciary Committee on Tuesday he has authorized more than 170 such emergency searches since the Sept. 11 attacks -- more than triple the 47 emergency searches that have been authorized by other attorneys general in the last 20 years.

A 1978 law, the Foreign Intelligence Surveillance Act, enables the FBI and other investigators to conduct intelligence operations under the supervision of a secret federal tribunal known as the Foreign Intelligence Surveillance Court. Over the years, the number of such FISA applications has grown -- and civil liberties' groups and defense lawyers have complained that the law has become a tool to dilute suspects' constitutional rights.

Now, Justice Department officials are pushing the law's limits even further. Since the Sept. 11 attacks, officials have seized on a provision that allows them to launch emergency searches signed only by the attorney general. The department must still persuade the secret court that the search is justified -- but officials have 72 hours from the time the search is launched, and such requests are almost always granted.

Ashcroft's tally was more fuel for critics of the law who contend that it already operates in the shadows.

"That is a startling increase," said Timothy Edgar, a legislative counsel for the ACLU.

Edgar and others are concerned that law-enforcement officials are pursuing run-of-the-mill criminal cases under the guise of national security. The trouble, they say, is that defendants' customary 4th Amendment rights against unreasonable searches don't apply in FISA cases. Others point to the fact that the number of search warrants obtained by federal investigators in intelligence cases in recent years has started to outstrip the number in criminal cases.

The process "is getting attenuated from any kind of effective judicial oversight," said Joshua Dratel, a New York lawyer who helped represent the National Assn. of Criminal Defense Lawyers in a challenge to FISA last year. "The question now becomes, 'How much can a court tolerate before it reins this in?' "

Currently, the Justice Department is only required to report publicly how many FISA search applications it pursues annually and how many are approved. Several members of Congress have introduced legislation that would expand the reporting requirements -- to detail the number of searches of U.S. citizens, for instance.

"The bare numbers cry out for further scrutiny," said James X. Dempsey, executive director of the Center for Democracy and Technology, a Washington civil-liberties group.

Separately, Ashcroft announced the unsealing of charges in Brooklyn, N.Y., federal court against two Yemeni citizens, Mohammed Al Hasan Al-Moayad and Mohammed Mohsen Yahya Zayed. Ashcroft said the men stand accused of conspiring to provide material support to the Al Qaeda and Hamas terrorist groups through a worldwide fund-raising operation that netted Osama bin Laden $20 million.

According to Ashcroft, a portion of the funds came from the Al Farouq mosque in Brooklyn, a onetime gathering place for Egyptian cleric Sheik Omar Abdel Rahman, known as the blind sheik, and other men, all of whom were convicted in the 1993 World Trade Center bombing.

The men were arrested Jan. 10 in Frankfurt, Germany; the U.S. is seeking their extradition. A Justice Department spokesman said announcement of the arrests was delayed for "operational reasons."

In a related development, U.S. counter-terrorism officials confirmed Tuesday that the second man arrested Saturday in a predawn raid in Rawalpindi, Pakistan, is Mustafa Ahmed Al-Hawsawi, one of Al Qaeda's top paymasters. Hawsawi was captured with Khalid Shaikh Mohammed, an Al Qaeda leader believed to be plotting additional attacks on the United States and elsewhere.

The Justice Department has accused Hawsawi of funding the Sept. 11 attacks by wiring more than $100,000 to the hijackers for their living expenses, flight lessons and airline tickets after they arrived in the United States. Just before they embarked on their deadly journeys, several of the hijackers wired the money they had not spent back to Hawsawi in the United Arab Emirates.

Federal law enforcement officials described the arrest as "extremely significant."

"This is a huge catch," one official said Tuesday. "Not as huge as Mohammed, obviously, but one of the more significant arrests we've made since the Sept. 11 attacks."

After he was captured, Hawsawi, a native of Saudi Arabia, initially gave authorities a false name and nationality, claiming he was Somali.

Several senior counter-terrorism officials have described Hawsawi as far more than just a conduit, portraying him as a senior financial operative for Bin Laden and the entire Al Qaeda network.

"Every time we can have any success in cracking the financial network of Al Qaeda brings us much closer to breaking the back of the network itself," one official said.

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Times staff writer Josh Meyer contributed to this report.