Court ruling gives feds more surveillance power

Tuesday, November 19, 2002

WASHINGTON -- In a decision that will greatly expand the government's authority to eavesdrop on Americans, a federal appeals court ruled Monday that the Justice Department has broad powers to use wiretaps and other means to combat terrorism.

A special three-judge panel overturned a decision by the secret Foreign Intelligence Surveillance Court in May that certain surveillance provisions in the USA Patriot Act infringed on citizens' privacy.

Monday's decision means the government will face fewer hurdles when it seeks to listen to telephone conversations and read the e-mail of people who are suspected of espionage or terrorism. Intelligence agents and criminal prosecutors also will be able to share information more freely.

The special appeals court, which consisted of three federal appellate judges named by William Rehnquist, the chief justice of the Supreme Court, ruled Monday that the expanded powers sought in the USA Patriot Act are "constitutional because the surveillances it authorizes are reasonable."

Attorney General John Ashcroft called the decision "a victory for liberty, safety and the security of the American people." He said it "revolutionizes our ability to investigate terrorists and prosecute terrorist acts."

Armed with the ruling, Ashcroft announced Monday that the FBI was doubling the number of lawyers in its National Security Law Unit, which handles foreign intelligence wiretap applications, and would add 25 lawyers to the Justice Department's Office of Intelligence Policy and Review.

Usually secret court

Justice Department lawyers who seek authorization for wiretaps or surveillance for suspected spies or terrorists must go to the Foreign Intelligence Surveillance Court. That court was created under the Foreign Intelligence Surveillance Act of 1978 to oversee sensitive law-enforcement activities.

The court typically toils in secret. But it threw open its doors earlier this year when it not only rejected for the first time a government request for broader surveillance powers but also made its opinion public. In that unprecedented and deeply critical decision, the FISA court said there had been 75 instances of surveillance-warrant abuse during the Clinton administration.

The Justice Department appealed the FISA court's decision to the three-member Court of Review, which swung into action for the first time. The judges who ruled Monday are Ralph Guy, of the U.S. States Court of Appeals for the Sixth Circuit in Cincinnati, Edward Leavy, of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, and Laurence Silberman, of the U.S. Court of Appeals in the District of Columbia. President Ronald Reagan appointed all of them to the bench.

Ashcroft said the Justice Department was creating a streamlined system so that wiretap and surveillance applications could be processed faster. If they are rejected, Ashcroft or FBI director Robert Mueller would be informed promptly so they could review the decision.

Monday's ruling was a bitter disappointment to civil liberties groups, which had fought the USA Patriot Act provisions that the appeals panel validated.

"Ordinary American citizens are more likely to become the victims of highly intrusive government surveillance, because meaningful judicial oversight has effectively been eliminated," said Jameel Jaffer, staff attorney for the American Civil Liberties Union.

'Chips away' at standards

Mikal Condon, of the Electronic Privacy Information Center, said, "It chips away at what were once incredibly high standards that the government had to meet to monitor U.S. citizens." The government has the sole right to appeal the ruling under the law. But Jaffer said the ACLU, which filed a friend of the court brief in the case, was exploring ways to get the case to the U.S. Supreme Court.

The Justice Department had argued to the court that the USA Patriot Act, which was passed last year in the weeks after the Sept. 11 terrorist attacks, gave it new police-surveillance powers.

The FISA court ruled that the Justice Department was trying to tear down the wall between prosecutors, who bring criminal charges, and intelligence agents, who may not bring criminal charges but must cast a wide net to track spies and terrorists.

Accordingly, prosecutors who want court permission to conduct wiretaps have to persuade judges that there is "probable cause" to believe the suspect was involved in criminal activity. Intelligence agents appearing before the FISA court have a lower burden of proof, so traditionally there have been bars to sharing information between agents working on espionage cases and those working on criminal cases.

The Court of Review said in its 56-page decision Monday that the "wall" based on the difference in agents' functions was a fiction.

"We think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government's use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in criminal prosecution," the unanimous ruling said.

"This idea of a wall is dangerous," said Robert Turner, associate director of the Center for National Security Law at the University of Virginia. "Yes, we have to protect civil liberties, but one of our civil liberties is to stay alive."

The review court sent the case back to the FISA court with instructions to grant the applications as requested.

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