- The Washington Times - Tuesday, November 19, 2002

The Justice Department can use secret wiretaps and other sophisticated surveillance equipment to track terrorism and espionage suspects, a federal appeals court panel said yesterday.
The three-judge panel, in a 56-page order, said the ultrasecret Foreign Intelligence Surveillance Court erred in May when it ruled against an expansion of wiretap and surveillance guidelines sought by Attorney General John Ashcroft under the new USA Patriot Act.
The panel said restrictions imposed by the lower court, which operates under the Foreign Intelligence Surveillance Act (FISA), were "not required by [the act] or the Constitution" and that the government's proposed use of the Patriot Act was "constitutional because the surveillances it authorizes are reasonable."
The unanimous ruling was signed by Judges Ralph B. Guy Jr. of the 6th U.S. Circuit Court of Appeals in Cincinnati, Edward Leavy of the 9th U.S. Circuit Court of Appeals in San Francisco and Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit, all of whom were appointed by President Reagan.
"Not surprisingly, this case raises important questions of statutory interpretation and constitutionality," the panel said. "After a careful review we conclude that FISA, as amended by the Patriot Act, supports the government's position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution."
The special panel, named by Chief Justice William H. Rehnquist to hear this appeal, was sitting as the U.S. Foreign Intelligence Surveillance Court of Review.
Mr. Ashcroft said the ruling "revolutionizes our ability to investigate terrorists and prosecute terrorist acts." He said the Patriot Act already had adequate safeguards to ensure the government does not overstep its authority.
In response to the ruling, Mr. Ashcroft announced the development of a computer system to help investigators get quick court approval for surveillances, a doubling of the number of FBI attorneys who will handle surveillance applications and the appointment of a lawyer at each of the nation's U.S. attorney's offices to serve as the contact person for the cases.
The American Civil Liberties Union, which argued against the broader snooping powers, said it was "disappointed" with the ruling, adding in a statement that the FISA court "exists only to rubber-stamp government decisions."
At the Cato Institute, Robert A. Levy, senior fellow in constitutional studies, and Timothy Lynch, director of Cato's project on criminal justice, said the ruling undermines Fourth Amendment privacy protections.
They argued that the ruling means foreign intelligence need only be "a significant purpose" of an investigation rather than the sole purpose.
"That sounds like a trivial change, but it isn't," they said in a statement. "FISA requires probable cause only that a target is connected to a foreign power or terror group, but not probable cause that crimes are being committed. Now because FISA now applies to ordinary criminal matters if they are dressed up as national security inquiries, the new rules could open the door to circumvention of the Fourth Amendment's warrant requirements."
In August, the Justice Department said the FISA court misinterpreted the Patriot Act when it ordered the department to alter its guidelines in pursuing wiretap and surveillance warrants. The department said the court wrongly ruled that the law did not justify new investigative techniques, including federal agencies' sharing information and surveilling people in cases where law enforcement was the primary interest.
In an appeal argued by Solicitor General Theodore B. Olson, the department said that under the new law it could undertake searches and wiretaps "primarily for a law-enforcement purpose, so long as a significant foreign intelligence purpose remains."
Justice Department spokeswoman Barbara Comstock said at the time that the court's ruling, as a practical matter, limited the department's ability to engage in the kind of cooperation "both helpful and necessary" to protect national security.
The appeal was the first time the Justice Department had challenged a ruling by the FISA court and the first time an appeals court panel had overturned a ruling by the court.
On May 17, the FISA court said the Justice Department's revised guidelines were "not reasonably designed" to safeguard the privacy of Americans and that they allowed the misuse of information in criminal investigations.
The court's rulings, signed by U.S. District Judge Royce C. Lamberth, were sent to the Senate Judiciary Committee, which had raised questions about the department's use of wiretaps.
The court, made up of seven federal district court judges appointed by the chief justice of the Supreme Court, reviews applications by the Justice Department for authorization of secret surveillance warrants under the 1978 Foreign Intelligence Surveillance Act.
The court's records and files are sealed and may not be revealed even to people being prosecuted based on evidence obtained under a FISA warrant. FISA rules have no provision for the return of an executed warrant, much less with an inventory of items taken, or for certification that the surveillance was even conducted.
The 1978 law was aimed at regulating the collection of "foreign intelligence" data in U.S. counterintelligence efforts, whether or not any laws had been broken. It defined counterintelligence as information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations by or on behalf of foreign governments, organizations, people or international terrorists.
The law was criticized after the August 2001 arrest of Zacarias Moussaoui, charged as a conspirator in the September 11 attacks on the World Trade Center and the Pentagon.
FBI agents in Minneapolis, told that Moussaoui was seeking flight lessons, sought a FISA warrant to search his computer, but FBI officials in Washington refused, saying there was insufficient probable cause. The agents already had information, including intelligence from officials overseas, that Moussaoui was tied to terrorism suspects.


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