Secret Surveillance Court That Reviews Patriot Act Surveillance Considers Rule Changes to Better Protect Privacy and Civil Liberties

November 17, 2005 12:00 am

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WASHINGTON – The American Civil Liberties Union today called upon the Foreign Intelligence Surveillance Court to enact changes to its rules that would better protect those affected by its secret search and surveillance orders.

“As government snoops further and further into our personal lives, the role of this secret court has increased exponentially,” said Timothy H. Edgar, an ACLU Legislative Counsel. “The court has taken the right step by opening up its proposed rules changes to public scrutiny for the first time. Now, it should heed the public’s demands for proceedings that respect national security, but are fair and open.”

The Foreign Intelligence Surveillance Act of 1978 established the FISA court and the Patriot Act substantially expanded virtually all of the government powers over which it has oversight. Congress is currently working on legislation that would reauthorize some of the broad new surveillance powers that the court must review. This is the first time that the rules of the secret court have been open to public comment.

Among the proposed changes is Rule 5, which lets non-government attorneys appear before the court for the first time. The ACLU objects to the requirement that any attorney who appears before the FISC have security clearance, noting that in federal courts it is quite common for lawyers to litigate cases implicating classified information without having access to the information itself. The ACLU is involved with several such cases now.

The ACLU also welcomed a change that would require the government to submit technical and legal documents explaining new surveillance technology, saying the court should use the new rule to carefully and independently review new technologies. It also requires the government to immediately correct any misstatements or misrepresentations in its filings before the court, take corrective action, and keep the court updated.

The secret court has come under intense scrutiny in recent years. While surveillance that is reviewed by the secret court has been vastly expanded by the Patriot Act and its decisions now affect the privacy and civil liberties of people in the United States in almost two thousand cases every year, its operations and procedures remain one of the most clandestine in the nation’s legal system. FISA standards do not require the same probable cause of criminal activity that is required for criminal surveillance.

Using the Freedom of Information Act, the ACLU sought to uncover non-classified information about the use of secret surveillance under the Patriot Act and other governmental surveillance and intelligence powers. As part of the settlement of the ACLU’s case, the government agreed for the first time to release a copy of the rules of the court from 2000, which the proposed rules would replace.

“The number of surveillance orders under FISA now exceeds the number of orders for criminal electronic surveillance issued by every other court in the United States, state or federal, combined,” added Edgar. “Proper rules must be put into place that protect against government abuse of these broad powers.”

To read the ACLU’s Comments on Proposed Rules for the Foreign Intelligence Surveillance Court, go to:

To read the Proposed Rules for the Foreign Intelligence Surveillance Court, go to:

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