NEW YORK - In an unprecedented legal move, a coalition of civil liberties and Arab-American groups today urged the U.S. Supreme Court to review an extraordinary decision by a secret appeals court that broadly expanded the government's powers to spy on U.S. citizens.
The case offers the first opportunity for the Justices to consider government actions in the wake of September 11 that severely restrict civil liberties in the name of national security.
"On behalf of all Americans, we are urging the Supreme Court to reject the extreme notion that Attorney General Ashcroft can suspend the ordinary requirements of the Fourth Amendment to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices," said Ann Beeson, Associate Legal Director of the American Civil Liberties Union.
The ACLU filed the appeal together with the National Association of Criminal Defense Lawyers (NACDL), the American-Arab Anti-Discrimination Committee (ADC) and the Arab Community Center for Economic and Social Services (ACCESS), a Michigan-based organization.
At issue in the case - which has focused a spotlight on the ultra-secret Foreign Intelligence Surveillance Court - is whether the Constitution and the USA PATRIOT Act adopted by Congress permit the government to use looser foreign intelligence standards to conduct surveillance in criminal investigations in the United States.
Today's request also gives the U.S. Supreme Court the opportunity to review for the first time the constitutionality of the Foreign Intelligence Surveillance Act (FISA), originally enacted in 1978.
The groups said in legal papers that they believe their members and many other Americans are currently subject to illegal surveillance, noting that the FBI has already targeted its members in numerous ways. For example, the FBI recently ordered its field offices to count the number of mosques and Muslims in their areas in order to establish their surveillance priorities.
"We do not enter into this litigation lightly; we firmly believe that these expanded powers erode the functionality and checks and balances of our judicial system," said Ziad J. Asali, M.D., President of ADC.
The FISA court and the Court of Review were created under a federal law intended to authorize government wiretaps in foreign intelligence investigations. Under FISA procedures, all hearings and decisions are conducted in secret. The government is normally the only party to FISA proceedings and the only party that can appeal to the Supreme Court.
In a separate motion that accompanied the request for a review of the lower court decision, the groups argued that they should be allowed to appeal the historic decision even though they were not parties in the lower court proceedings.
"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," the groups said in their papers.
The FISA Court of Review's November 2002 ruling - the first in its history - overturned an earlier unanimous decision of the lower FISA court rejecting the Justice Department's bid for broader surveillance powers. In its May 2002 decision, the FISA court documented numerous surveillance abuses, including serious errors in approximately 75 applications for foreign surveillance.
Today's legal challenge comes just days after reports that the Justice Department is seeking yet another massive legislative expansion of its powers. The proposed legislation goes even further than the USA PATRIOT Act in eroding checks and balances on Presidential power and encouraging police spying on political and religious activities.
Attorneys in the case are Beeson, Jameel Jaffer and Steven Shapiro of the ACLU and Joshua L. Dratel, John D. Cline and Tom Goldstein of NACDL, acting on behalf of their organizations and as counsel to ADC and ACCESS.
The case is In Re: Sealed Case Of The Foreign Intelligence Surveillance Court Of Review No. 02-001.