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Court comes alive { August 27 2002 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2002/08/27/national/27COUR.htmlhttp://www.nytimes.com/2002/08/27/national/27COUR.html
August 27, 2002
Court Comes to Life Over Ruling on Post-9/11 Police Powers
By PHILIP SHENON
WASHINGTON, Aug. 26 — Almost no one has ever heard of this court before. It has never met to issue a ruling.
But almost a quarter-century after its creation, the nation's super-secret intelligence appeals court has been asked to make a critical ruling on the extent of the police powers that should be granted to the Justice Department in the aftermath of the Sept. 11 attacks, government officials said.
The three-judge court, the United States Foreign Intelligence Surveillance Court of Review, was created in 1978 to review decisions from another secret tribunal, the Foreign Intelligence Surveillance Court, that was established under the same law.
Until now, the Justice Department had never appealed a decision by the Foreign Intelligence Surveillance Court, an 11-member panel that is responsible for authorizing wiretaps and other surveillance of suspected spies and terrorists. In its 24-year history, the lower court had never turned down a wiretap request from the Justice Department.
As a result, the Court of Review, which is made up of three semiretired federal appellate-court judges appointed on a rotating basis by Chief Justice William H. Rehnquist, has essentially existed only on paper.
The court is now made up of Judge Ralph B. Guy of the United States Court of Appeals for the Sixth Circuit, in Cincinnati; Judge Edward Leavy of the United States Court of Appeals for the Ninth Circuit, in San Francisco; and Judge Laurence H. Silberman of the United States Court of Appeals in Washington.
The Court of Review's inactivity came to an end last week, when the Justice Department, under Attorney General John Ashcroft, appealed a decision of the lower court, which had ruled against the department's secret request for broad new authority to allow criminal prosecutors and counterintelligence investigators to work together.
The department has argued that it is entitled to the new powers under the U.S.A. Patriot Act, the sweeping antiterrorism bill that Congress passed after the Sept. 11 attacks.
Specifically, the department wanted the court to approve secret regulations that would allow criminal prosecutors at the Justice Department to give advice to F.B.I. counterintelligence agents and to help direct the use of wiretaps against people suspected of spying.
The lower court rebuffed the request, ruling that the department was improperly trying to tear down the "wall" that was supposed to exist between criminal prosecutors, who are responsible for bringing criminal charges, and F.B.I. counterintelligence agents, who are responsible for ferreting out foreign spies in the United States.
The wall was erected by Congress in the late 1970's, largely in response to the domestic surveillance scandals of the Nixon administration, in an effort to prevent prosecutors from using counterintelligence wiretaps to conduct criminal investigations.
It is generally more difficult for prosecutors to gain court permission for wiretaps under criminal law, since the Constitution requires prosecutors seeking a criminal wiretap to show "probable cause" that a suspect is involved in a crime.
Civil liberties groups have long asserted that when criminal investigators lack probable cause to conduct electronic surveillance of a suspect, they improperly label a case as counterintelligence, making it easier to obtain court permission for a wiretap. The surveillance court, known by the acronym FISA, had not denied a single one of more than 10,000 applications it had received since 1978.
"The bottom line is that they use FISA because the procedures are so much looser," said James X. Dempsey, deputy director of the Center for Democracy and Technology.
The ruling made public last week was the first time in its history that the surveillance court, which operates from a windowless, high-security courtroom on the top floor of the Justice Department, had allowed a decision to be released.
It was also the first time the court has ever suggested that there had been widespread abuses of the court-review system by the Justice Department and the F.B.I.
The court cited more than 75 cases — all in the Clinton administration — in which the F.B.I. acknowledged filing misleading applications to the court to conduct wiretaps or other surveillance.
The misstatements, the court said, often resulted from the improper sharing of information between counterintelligence officers and criminal prosecutors.
Senator Patrick J. Leahy of Vermont, the chairman of the Senate Judiciary Committee, said the surveillance court's ruling might "save the Justice Department from overstepping constitutional bounds in ways that could have dire consequences in our most serious national security cases."
In the appeals papers it filed last week, the Justice Department noted — and civil liberties groups acknowledge — that the U.S.A. Patriot Act was intended to make it far easier for prosecutors and counterintelligence investigators to cooperate.
The act amended the 1978 foreign-surveillance law to remove the requirement that investigators seeking a wiretap show the court that the sole purpose of the surveillance was to obtain foreign intelligence information, not evidence to be used in a criminal case
Under the U.S.A. Patriot Act, investigators are required to show only that the gathering of intelligence is just a "significant purpose" of the wiretap.
In its appeal to the Court of Review last week, the Justice Department said that the surveillance court had ignored the act in its decision. The lower court's holding, the department said, "was plainly wrong — the U.S.A. Patriot Act provides expressly for increased cooperation and was clearly intended" to end that previous limitations on their coordination.
Justice Department officials say they have no idea when the Court of Review might reach a decision on the appeal. If the department is unhappy with that ruling, it still has one avenue of appeal: the Supreme Court.
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