ACLU Condemns Secret Review of Wiretap Court's Ruling on Government Abuse of Surveillance Powers

Document Date: September 9, 2002


NEW YORK-The American Civil Liberties Union today condemned as undemocratic a first-ever secret meeting of a special federal appeals court in which only the government was allowed to present arguments about whether Attorney General John Ashcroft had overstepped constitutional bounds in conducting surveillance and searches.

“”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, Litigation Director of the ACLU’s Technology and Liberty Program.

“”As a federal appeals court judge said recently in rejecting the government’s attempt to close off certain immigration hearings, ‘Democracy dies behind closed doors,'”” she added.

Today’s hearing was the result of a decision by the Foreign Intelligence Surveillance Court, made public last month, that new surveillance procedures proposed by the Attorney General are not consistent with the law.

The ACLU said it would this week file a brief supporting the lower court’s historic ruling – the only ruling ever made public in the history of the court’s existence.

The hearing today is of enormous public interest, the ACLU said, because it concerns the first time a FISA court has rejected a government warrant and because it is the appellate court’s first opportunity to consider new surveillance rules proposed by the government in the USA PATRIOT Act.

The government argued in the lower court for new rules to allow the use of foreign intelligence warrants when its purpose is primarily criminal investigations. The court rejected that argument, holding that the law does not authorize criminal prosecutors to direct counterintelligence surveillance and gather information from what the judges describe as “highly intrusive FISA surveillances and searches.” Because the Fourth Amendment requires a higher showing of probable cause to approve surveillance in criminal cases, the ACLU argues that the government’s new proposed rules also violate the Constitution.

In its decision, the intelligence court documented abuses of such warrants, including serious errors in approximately 75 applications for foreign surveillance. These errors, the court said, led to a special meeting of the court’s judges in which the panel decided not to accept inaccurate affidavits from FBI agents and not to allow one FBI agent to appear before the court.

Noting that the FISC court’s ruling was made public with certain sensitive portions redacted, Beeson said that the appeals court could have held a public hearing but closed portions touching on sensitive national security matters and investigations.

At the very least, Beeson added, the secret appeals court should now issue transcripts of today’s arguments with whatever redactions it deems necessary.

Beeson also noted that although the ACLU and other organizations last week wrote to the appeals court saying that they intended to file a friend-of-the-court brief in the matter, none of the groups were notified of today’s hearing, and by all accounts no public announcement was made. The ACLU and others learned of the hearing through an online column by ABC News Justice Department correspondent Beverley Lumpkin.

On Tuesday, the Senate Judiciary Committee will hold oversight hearings on the foreign intelligence wiretaps and the USA Patriot Act. “The FISA court sent a clear message to Congress that instead of repeatedly expanding intelligence surveillance, it must first determine how the Justice Department is using — or abusing — the expanded authority it was granted in the USA Patriot Act,” said Gregory T. Nojeim, Associate Director of the ACLU’s Washington National Office. “Tomorrow’s hearing should be seen as the first step of what must be a comprehensive review.”

Today’s hearing was conducted by a special three-judge panel appointed by Chief Justice William H. Rehnquist in accordance with provisions of the Foreign Intelligence Surveillance Act. The judges are: Hon. Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit; Hon. Edward Leavy, U.S. Court of Appeals for the Ninth Circuit and Hon. Ralph B. Guy, Jr., U.S. Court of Appeals for the Sixth Circuit.

The ACLU’s Sept. 4 letter to the appeal court, also signed by the Center for National Security Studies, the Center for Democracy and Technology, the Electronic Privacy Information Center and the Open Society Institute, is attached:

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