New court evidence in the Cuba spy case reveals the United States used wiretaps for years before agents arrested an FIU professor and his counselor wife.

BY JAY WEAVER

Federal agents planted a bug in the bedroom of a Florida International University a couple of years ago, netting evidence to charge them as unregistered agents for the Cuban government, according to court records.

The FBI also wiretapped the home phones of Professor Carlos Alvarez and his counselor wife, Elsa Alvarez, from at least late 2001 until last summer, collecting electronic evidence on practically all of their conversations.

The reams of intercepts included mundane exchanges and even the private musings between husband and wife.

The FBI's eavesdropping of the couple's home goes far beyond what was first known about evidence in the case, which included alleged ''confessions'' to federal agents last summer and the confiscation of the Alvarezes' home and FIU computers. The surveillance evidence surfaced as part of their lawyers' efforts to revoke the couple's detention before their scheduled May 8 trial.

It's unclear from the court record how these thousands and thousands of surveillance intercepts will help the U.S. attorney's office prosecute the couple, who are suspected of reporting on the exile community and its leaders to Cuban leader Fidel Castro's government.

According to sources familiar with the case, the FBI had hoped the electronic intercepts would provide leads on alleged spying activity on behalf of the Cuban government. The evidence led only to the Alvarezes' arrests in January. It's unclear why prosecutors chose to charge them at that time.

The couple's lawyers say prosecutors have produced ''about 200 supposedly pertinent conversations'' recorded by the FBI, court records show. The evidence remains sealed from the public. But the Alvarezes' lawyers say the ''majority deals only with mundane activities of daily life'' -- such as conversations about the Alvarezes' dinner plans, the tenting of their South Miami home for termites and meetings at their Catholic church.

THE DEFENSE STANCE

The couple's lawyers, Steven Chaykin and Jane Moscowitz, argue their clients would not leave for Cuba if released because they have strong ties to the community, including five children and elderly parents.

They are challenging whether the FBI lawfully obtained warrants to conduct the electronic surveillance. The FBI obtained the warrants under the Foreign Intelligence Surveillance Act, which allows the government to wiretap people in the United States suspected of being agents for a foreign government or involved in terrorist activity overseas.

In the war on terror, the Bush administration has attracted sharp criticism for authorizing warrantless domestic wiretaps without approval from the secretive FISA court -- an issue that doesn't apply to the Alvarez case.

It is not clear from court records how long the FBI conducted electronic surveillance of the couple's home. But it appears the FISA wiretaps of the Alvarezes may have begun years before the Sept. 11, 2001, terrorist attacks. Post-9/11, Congress approved the USA Patriot Act that allows federal agencies to use foreign intelligence wiretap evidence for criminal investigations, such as the Alvarezes' case.

'On March 6, 2006, the government produced summaries of allegedly `pertinent' recorded conversations produced by that surveillance starting in December 2001 and ending July 4, 2005, although the government states that the eavesdropping began earlier and continued until the defendants' arrest on Jan. 6, 2006,'' the Alvarezes' lawyers wrote.

The attorneys, in their motion, asked the government to disclose the documents related to the wiretap warrants. They are trying to challenge evidence that could affect their clients' case before a jury.

They cited constitutional protections for Carlos Alvarez, 61, a psychology professor, and his wife, Elsa, 55, a psychology counselor, both U.S. citizens.

Referring to the FISA law, the attorneys said: No U.S. citizen ``may be considered an agent of a foreign power solely upon the basis of activities that are protected by the First Amendment. . . .''

For example, they argued, more than 40 of the ''pertinent'' FISA recordings are telephone conversations between Carlos Alvarez and an unidentified colleague regarding legally licensed culture-exchange programs between the United States and Cuba.

PROTECTIVE ORDER

This month, federal prosecutors refused to turn over documents for the FISA warrants to the Alvarezes' attorneys.

So far, U.S. District Judge K. Michael Moore has issued a protective order that allows only members of the legal teams and their staffs to review the declassified FISA intercepts for the upcoming trial.

Prosecutors apparently disclosed evidence about the FISA wiretaps to show the judge that the Alvarezes are a ``serious risk of flight.''

Assistant U.S. attorney Brian Frazier cited Magistrate Judge Andrea Simonton's January ruling in which she said the couple would receive ''a hero's welcome'' in Cuba.

The prosecutor said the couple used their cover at FIU to infiltrate the exile community, spying on the university's president, Mitch Maidique, and other exile leaders. He said they secretly communicated with the Cuban intelligence directorate, using five-digit code in short-wave radio transmissions.

Once the messages were received, they would input them into their home computer, equipped with decryption technology.

Prosecutors say the couple traveled to Cuba, Mexico and other countries to exchange information with their handlers from the Cuban Directorate of Intelligence.

According to court filings, the Alvarezes reported on ''community attitudes'' after the FBI's 1998 arrests of 10 Cubans charged with spying. That high-profile espionage case was linked to the Cuban government's shoot-down of two Brothers to the Rescue exile planes over the Florida Straits that killed four Miami men two years earlier.