Spies and Cops

Tuesday, September 25, 2001; Page A22

FOR DECADES, this country has sought to separate domestic law enforcement from the world of intelligence. The reason is as sound today as it ever was: Government should not be spying on Americans. The results, when it has done so, have been terrible. But the simple and profound notion that spies should not be cops and cops should not be spies depended on the state-to-state nature of international relations during the Cold War. Gathering intelligence against the Soviet Union had little to do -- except in espionage cases -- with enforcing the law at home.

International terrorism, however, sorely tests this premise. The American government must gather intelligence on terrorist groups. But it also seeks to arrest and try terrorist operatives in this country. And when an individual comes under suspicion, it often isn't clear which interest predominates -- whether the goal of the investigation is ultimately a criminal prosecution or learning where to bomb in Afghanistan. Too dogmatic an insistence on separating intelligence and law enforcement can hinder both by keeping information too isolated within the government.

The Justice Department's request for expanded surveillance powers contains numerous provisions, but one of its core effects would be to significantly lower the wall separating the two communities. It would allow grand jury information and the fruits of criminal wiretaps to be given to intelligence agencies, for example. It would also enable the laxer standards under which intelligence surveillance is conducted to be used in more law enforcement probes with national security dimensions. In the wake of the attacks on Sept. 11, such ideas should neither be hastily enacted nor reflexively opposed.

Legal barriers should be loosened where they prevent important exchanges of information between intelligence and law enforcement -- a matter that the prior administration worked hard to address. Any reforms, however, must minimize the possibility of intrusive domestic surveillance. The Justice Department needs to justify the changes it is requesting, some of which pose significant constitutional problems. Specifically, it needs to show that counterterrorism investigations have been harmed by the existing rules and that its changes fix real problems that encumber real investigations. This is no time for wish lists of new powers for which the department has long been clamoring and now sees opportunity.

At the same time, civil liberties advocates need to be open to altering the relationship between spies and cops. The goal should be to craft legislation that both preserves the principle that the government does not spy on Americans and facilitates the war we are now fighting.