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Secret court meets to consider Justice Department appeal

By The Associated Press

09.11.02

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Editorís note: The Associated Press reported on Sept. 13 that the U.S. Foreign Intelligence Surveillance Court of Review had assured senators that it would reveal to them its decision on whether the Justice Department should have more power to wiretap suspected terrorists and spies. In a letter dated Sept. 11, U.S. Appeals Court Judge Ralph Guy, a member of the review court, told the Senate Judiciary Committee that the court would send senators an unclassified copy of its decision on whether the Justice Department had gone beyond the limits of the Foreign Intelligence Surveillance Act in its wiretapping requests.

WASHINGTON — A secret appellate court has met for the first time in its 24-year history to consider a request from the Justice Department for more power to wiretap suspected terrorists and spies, according to department officials.

The appeals court, the U.S. Foreign Intelligence Surveillance Court of Review, convened Sept. 9 in a high-security room at the Justice Department in Washington and made no announcement of whether it had made a decision.

But senators immediately asked the court to publicly release its decision and the arguments Justice Department lawyers made in front of it, so lawmakers can know how government prosecutors are using the changes to the Foreign Intelligence Surveillance Act granted after the Sept. 11 attacks last year.

"We need to know how this law is being interpreted and applied," Senate Judiciary Chairman Patrick Leahy, D-Vt., said yesterday. No answer had been received from the Sept. 9 request, Senate officials said.

The appeal stems from a decision from the main, lower court that assesses the legitimacy of Justice Department and FBI requests to spy on people suspected of foreign espionage inside U.S. borders.

Civil liberties groups denounced the secret nature of the courts.

"Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy," said Ann Beeson, a litigation director at the American Civil Liberties Union.

When or if the appeals court's ruling on the department's request will ever be made public was not clear.

The lower court, the U.S. Foreign Intelligence Surveillance Court, ruled May 17 that the USA Patriot Act did not justify the use of certain investigative techniques. In that ruling, made public in August, the court struck down a government surveillance request and the government's assertion that national security concerns justify some lessening of previously recognized civil liberties or privacy rights, lawyers said.

The Justice Department had argued that under the new laws, the FBI could use the surveillance law to perform searches and wiretaps "primarily for a law enforcement purpose, so long as a significant foreign intelligence purpose remains."

The USA Patriot Act, passed late in 2001, changed the surveillance law to permit surveillance when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of such an investigation. Critics at the time said they feared government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.

A Justice Department official argued to senators yesterday that the agency still could only use espionage wiretaps against people considered to be foreign spies or working for foreign countries. But Associate Deputy Attorney General David Kris said that there may be times where law enforcement needs to be involved with their work to stop foreign spies and terrorists.

"When we identify a spy or a terrorist, we have to pursue a coordinated, integrated, coherent response," Kris said in written remarks to the Senate Judiciary Committee. "We need all of our best people, intelligence and law enforcement alike, working together to neutralize the threat."

Senate Republicans and Democrats disagreed on whether they intended the USA Patriot Act to loosen the wiretap laws to include criminal investigations.

"It was not the intent of the amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool," Leahy said. "We all wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did not intend to obliterate the distinction between the two, and we did not do so."

But Republicans said that was the exact intent of the law. "It is clear that Congress intended to allow greater use of FISA for criminal purposes and to increase the sharing of intelligence information and coordination of investigations between intelligence and law enforcement officers," said Sen. Orrin Hatch, R-Utah.

Related

ACLU, other groups seek information about government surveillance
Lawsuit claims Justice Department has provided no data on parts of Patriot Act that have 'obvious and serious implications for individual privacy and the freedom of speech.'  10.25.02

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