- The Washington Times - Tuesday, March 25, 2003

The Supreme Court yesterday rejected an unprecedented emergency challenge by the American Civil Liberties Union to the Bush administration's anti-terrorist surveillance practices.
The high court denied without comment the ACLU request concerning wiretapping and surveillance and did not request a government response. The move effectively prevents the ACLU from arguing its position in court.
Attorney General John Ashcroft welcomed the court's rebuff to what he called "a challenge of the government's lawful actions to detect and prevent international terrorism and espionage within our borders."
The ACLU, which called its filing "somewhat radical," joined four other organizations in asking permission to challenge a decision by a special review court on a case in which the ACLU filed a friend-of-the court brief but was not a party. The groups claimed to act on behalf of unknown people or groups being wiretapped or watched without their knowledge.
The government was the only party in lower-court closed hearings, so the ACLU sought permission to intervene.
"These fundamental issues should not be finally adjudicated by courts that sit in secret, do not ordinarily publish their decisions, and allow only the government to appear before them," said the emergency motion.
The review court decision would "open the door to surveillance abuses that seriously threatened our democracy in the past," said the ACLU, the National Association of Criminal Defense Lawyers, the American-Arab Anti-Discrimination Committee, the Arab Community Center for Economic and Social Services, and the Bar Association of San Francisco.
The Supreme Court's rejection strengthened, at least temporarily, Justice Department investigations involving spies, terrorists and other foreign agents.
"It is vitally important that the government's intelligence and law-enforcement officials coordinate their efforts to protect America from foreign threats to our national security," Mr. Ashcroft said.
The Foreign Intelligence Surveillance Court, or "spy court," issued a ruling in May limiting powers exercised under the USA Patriot Act, passed after the September 11 attacks. The spy court said that law did not justify some techniques proposed by the government.
The spy court reportedly has approved thousands of warrants since 1978, when Congress established it through the Foreign Intelligence Surveillance Act. Mr. Ashcroft has approved at least 170 emergency domestic spying warrants, three times the number approved in the previous 23 years, and he told Congress more than 1,000 FISA warrants were requested last year.
Emergency warrants authorized under FISA allow investigators to tap voice and fax telephones and to conduct searches for as long as 72 hours before they must seek review by the spy court. Warrants are issued by the spy court when the government shows a suspect probably is a "foreign power or agent of a foreign power."
That falls short of the "probable cause" standard needed to obtain a wiretapping warrant in an ordinary criminal case.
Mr. Ashcroft appealed the spy court ruling to the Foreign Intelligence Surveillance Court of Review, which had never before met or issued a decision during the 25 years the spy court operated.
Solicitor General Theodore Olson argued to the review court that secrecy is indispensable for anti-terrorism investigations. The court agreed on Nov. 18 in a decision that overruled the spy court and allowed government officials to monitor domestic intelligence sources and use the evidence in criminal prosecutions.
Ann Beeson, ACLU associate legal director, said the Supreme Court should "reject the extreme notion that Attorney General Ashcroft can suspend the ordinary requirements of the 14th Amendment to listen in on phone calls, read e-mails and conduct secret searches of Americans' homes and offices."

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide