After High Court Denies Appeal on Ashcroft Spy Powers, ACLU Urges Oversight in Courts and Congress

March 24, 2003 12:00 am

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NEW YORK – The American Civil Liberties Union today said it was disappointed by the Supreme Court’s rejection of a request to review an extraordinary secret appeals court decision that broadly expanded the government’s powers to spy on U.S. citizens, and vowed to continue to counter such efforts.

“We will continue to press Congress and the courts to curb abuse of government spy powers,” said Ann Beeson, Associate Legal Director of the ACLU, noting that today’s action was not a ruling on the merits of the challenge.

Beeson said that the ACLU has expressed strong support for a bipartisan bill that would require the Department of Justice to formally disclose information about its use of the controversial secret intelligence court established under the Foreign Intelligence Surveillance Act.

In today’s case, the ACLU had asked the Supreme Court to review 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.

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.

The groups said in legal papers that they believe some of their members and many other Americans are currently subject to illegal surveillance, noting that the FBI has already targeted its members in numerous other ways.

The FISA court and the Court of Review were created in 1978 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.

“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 appeal.

In a related development, recent documents obtained by the ACLU suggest that Attorney General Ashcroft is aggressively wielding a disturbing power that – without the approval of a judge – allows the government to force banks, Internet service providers, telephone companies, and credit agencies to turn over their customers’ records.

According to Beeson, this and other recent government initiatives such as the Total Information Awareness program, airline passenger profiling and Operation TIPS, the failed plan to get citizens to spy on each other, “sound an ominous note for the future of privacy in America, in which ordinary citizens are treated like suspects and the courts are treated like an obstacle, rather than a path, to justice.”

Attorneys in the FISA 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.

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