Court may limit feds' power to spy

WASHINGTON -- The Bush administration's latest courtroom setback in the post-Sept. 11 hunt for terrorists came from an unlikely source: a secretive panel of federal judges that until now had always given the government what it wanted.

The rebuff by the Foreign Intelligence Surveillance Court may test the limits of the government's power to spy on terror suspects in the United States, and prompted a strongly worded appeal from the government.

The Justice Department released an edited version of the appeal Friday, minus the details about a secret international terrorism investigation.

It apparently was the first time the government has gone to the Foreign Intelligence Surveillance Court of Review to overrule the special espionage panel, created nearly 25 years ago as a check on the government's power to conduct domestic spying.

"It's a shock, and a reminder of something the attorney general in particular seems to need reminding on -- that there is another branch of government here that has more than an advisory role to play," said Peter Raven-Hansen, who teaches national security law at George Washington University.

Judges have clipped the government's wings in a handful of rulings in recent months dealing with secret detentions and deportations of potential terror suspects and rules for holding or prosecuting those whose names are public.

'Win-win-win' record

The intelligence court's ruling, like those in other recent cases, takes issue with the government's assertion that national security concerns justify some lessening of previously recognized civil liberties or privacy rights, lawyers said.

"They have overreached and they have not been sufficiently sensitive to legal requirements," Raven-Hansen said. "If you've been accustomed to win-win-win, you tend to forget there's a legal structure that is being applied."

The legal structure at issue in this case involves the court that assesses the legitimacy of Justice Department and FBI requests to spy on people suspected of foreign espionage inside U.S. borders.

"For years the court never turned down an application, but my sense is that was not because the court was a rubber stamp," said Robert Turner, associate director of the Center for National Security Law at the University of Virginia. Instead, he said, it forced government lawyers to heed the legal restrictions.

The court has been a valuable filter, ensuring that FBI agents had proper legal justification for installing wiretaps or other electronic surveillance, or for conducting clandestine searches of the homes or property of espionage suspects, Turner and others said.

The court rejected a wiretap request in May, saying the government had previously misled the court or provided bad information and suggesting the government was now seeking power that would allow it to misuse intelligence information for criminal prosecutions. This was revealed Thursday by the Senate Judiciary Committee.

The court was "plainly wrong" in turning down the request, Justice Department lawyers wrote in the appeal dated Wednesday and released Friday.

The court misinterpreted the law governing such domestic investigations and ignored the breadth of new surveillance powers Congress granted to investigators immediately after the Sept. 11 jetliner attacks, the Justice Department wrote.

In passing the new law enforcement powers known as the USA Patriot Act, Congress recognized "that the country and its people can no longer afford a fragmented, blinkered, compartmentalized response to international terrorism and espionage," the government lawyers wrote.

The case involves an ongoing investigation by both anti-terrorism agents and criminal investigators. The government wanted to conduct electronic surveillance of an unidentified person, and make the information available for both national security and law enforcement uses.

"The consultations envisioned in this case are all intended to coordinate these intelligence and law enforcement efforts to investigate and protect against international terrorism," the Justice Department wrote.

It is unclear whether the case involves any suspected links to al-Qaida.

Separately, the House Judiciary Committee's top Democrat rebuked the Justice Department over the espionage court ruling.

"What your department suggested, and the court properly rejected, was the idea that absent probable cause that a crime has been committed, a law enforcement official could direct our nation's spies to conduct surveillance on someone they claim is a criminal suspect," Rep. John Conyers, D-Mich., wrote Friday to Attorney General John Ashcroft.