Secret Wiretap Court Exposes Ashcroft Plans to Circumvent the Constitution

August 23, 2002
FOR IMMEDIATE RELEASE

WASHINGTON - The American Civil Liberties Union today said that the newly released decision from the secret Foreign Intelligence Surveillance Court marks the latest rebuke to the government's response to last year's terrorist attacks and shows that Congress must decisively reject current proposals to lessen wiretap standards.

"The secret court finally went public. In doing so, it exposed Attorney General John Ashcroft's efforts to use intelligence powers to circumvent the Constitution," said Gregory T. Nojeim, Associate Director and Chief Legislative Counsel of the ACLU's Washington National Office. 

"This strong opinion from the intelligence court proves once again that in this country, when the government is investigating crime, it must be able to show a judge strong evidence of wrongdoing before it is allowed to search a home or record telephone conversations," Nojeim added. 

The court's central concern in its 27-page decision is whether criminal prosecutors should be allowed to direct counterintelligence surveillance and gather the information from what the judges describe as "highly intrusive FISA surveillances and searches." In its decision, the court openly questions whether having criminal prosecutors direct the intelligence searches is necessary to obtain and produce foreign intelligence information and concludes that new procedures proposed by the Justice Department this year are not consistent with the law. 

The seven-judge panel therefore explicitly rejected efforts by Attorney General John Ashcroft to eliminate federal "bright line" protections against having prosecutors direct intelligence investigations to use them for criminal prosecutions. Although the decision says the Justice Department expended "considerable effort justifying deletion of that bright line," it emphatically added, "the Court is not persuaded." 

Nojeim said the decision, which was released on Thursday by the Senate Judiciary Committee, decisively demonstrates that Congress should reject two proposals pending at the Senate Intelligence Committee to reduce the level of proof the government must provide the surveillance court to get an intelligence warrant. 

"The intelligence court's opinion shows that the Department of Justice has abused the intelligence powers it already has and should not be showered with more until it addresses the problems the court identified," Nojeim said. 

Barry Steinhardt, Director of the ACLU's Technology & Liberty Program, noted that the secret nature of the intelligence court makes it difficult to know what procedures apply to the government's appeal. Nonetheless, "the ACLU is actively exploring the possibility of filing a friend-of-the-court brief, or supporting the lower court's decision in some other manner," he said. 

In its decision, the intelligence court also said that it had been notified by the government about errors in approximately 75 applications for foreign surveillance wiretaps, errors that included "misstatements and omissions of material facts." 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. 

The Court's decision can be found at:
http://news.findlaw.com/cnn/docs/terrorism/fisa51702opn.pdf

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