In First-Ever Ruling, Secret Appeals Court Allows Expanded Government Spying on U.S. Citizens

November 18, 2002 12:00 am

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WASHINGTON – Ruling for the first time in its history, the ultra-secret Foreign Intelligence Surveillance Court of Review today gave the green light to a Justice Department bid to broadly expand its powers to spy on U.S. citizens.

“We are deeply disappointed with the decision, which suggests that this special court exists only to rubberstamp government applications for intrusive surveillance warrants,” said Ann Beeson, litigation director of the Technology and Liberty Program of the American Civil Liberties Union.

“As of today,” she said, “the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans’ homes and offices.”

At issue is whether the Constitution and the USA PATRIOT Act adopted by Congress after the Sept. 11 terrorist attacks permit the government to use looser foreign intelligence standards to conduct criminal investigations in the United States.

Last May, in a historic first, the Foreign Intelligence Surveillance Act court (FISA) made public a unanimous decision rejecting the government’s bid for expanded spying powers. After the Justice Department appealed, the ACLU was granted permission to file a friend-of-the-court brief in the appeals court, together with the Center for Democracy and Technology, the Center for National Security Studies, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the Open Society Institute.

The ACLU and its coalition partners are examining today’s decision and considering a number of options, including requesting an appeal to the Supreme Court and asking Congress to clarify through legislation that it did not authorize the Justice Department to use FISA’s looser surveillance standards in ordinary criminal cases.

“This is a major Constitutional decision that will affect every American’s privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court,” Beeson said. “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,” she added.

The FISA court and the Court of Review were created under a law passed by Congress in 1978, which authorizes government wiretap requests in foreign intelligence investigations. Under these procedures, all hearings and decisions are conducted in secret.

Although the ACLU and its coalition partners were allowed to file a friend-of-the-court brief in support of the lower court ruling, they were not allowed to participate in the oral argument before the Review Court that resulted in today’s decision, and they are not automatically entitled to submit an appeal to the U.S. Supreme Court.

Today’s decision comes on the heels of a White House announcement of a new system being developed at the Pentagon that would be able to track every American’s activities. The so-called “Total Information Awareness” program will create — according to Pentagon officials — the infrastructure for the most extensive electronic surveillance system in history. Conservative New York Times columnist William Safire has dubbed the program “a supersnoop’s dream.”

The FISC Review Court is 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 court’s decision is online at http://www.cadc.uscourts.gov/common/newsroom/02-001.pdf

A feature with documents related to the case is online at http://archive.aclu.org/issues/privacy/FISA_feature.html

An ACLU news release on the Total Information Awareness program is online at /node/11471

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