Supreme Court urged to restrict spying powers

Wednesday, February 19, 2003

WASHINGTON -- Civil liberties groups are using a long shot approach in an effort to get the Supreme Court to limit the government's power to spy, filing an appeal Tuesday on behalf of people who don't even know they're being monitored.

The American Civil Liberties Union and other organizations hope to draw the justices into their first post-Sept. 11 anti-terror case with a challenge of the Justice Department's surveillance powers.

Congress gave the government broader spying authority after the terrorist attacks. The ACLU argued that a review court misinterpreted the law, making it too easy for the government to get permission to listen to telephone conversations, read e-mail and search private property, and then use the information in criminal cases.

The ACLU and other critics worry there are not enough checks to ensure the government's snooping doesn't stretch to law-abiding citizens.

The Supreme Court may not allow the appeal because the ACLU was not one of the parties in the review court case. The ACLU filed arguments opposing the government but was not directly involved.

The ACLU, joined by American-Arab groups, argue that they represent people who are being monitored under warrants approved by the super-secret Foreign Intelligence Surveillance Court, or "spy court." The court deals with intelligence requests involving suspected spies, terrorists or foreign agents.

"The irony is no one can know for certain whether they are the subject of these secret surveillance orders because they're secret," said Ann Beeson, ACLU's associate legal director.

She said the group has "taken this somewhat radical step" to protect those people.

Scott Silliman, director of Duke University's Center on Law, Ethics and National Security, said the Supreme Court would have to make an extraordinary exception for the ACLU.

"I see no way that they could possibly create an appeal without any standing. Clearly it will be dismissed," he said.

The November ruling by the review court was a huge victory for the Bush administration, which argues that the surveillance is an important component of its war on terror.

The administration was the only participant in the case. The Justice Department had appealed after the spy court turned down a request for a wiretap. The review court overturned that decision. It was the first time the review panel had ever met, or issued a decision.

A key part of the review panel's ruling removed legal barriers between the surveillance operations of the Justice Department's criminal and intelligence divisions. The two had been treated differently because the standard for criminal wiretaps, instead of those granted by the spy court, is considered more difficult because of the constitutional protection against unreasonable searches and seizures.

The decision "opens the door to surveillance abuses that seriously threatened our democracy in the past," justices were told in the filing by the ACLU, the National Association of Criminal Defense Lawyers, the American-Arab Anti-Discrimination Committee and the Arab Community Center for Economic and Social Services.

Other groups also have been concerned that the administration was going too far with surveillance.

Last week, the American Bar Association voted to ask Congress to order more oversight of wiretapping and searches granted by the spy court, which was created in 1978 to oversee sensitive law enforcement surveillance by the government.

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