WASHINGTON-- In the first case of its kind, a coalition of civil liberties groups today urged a secret appeals court to reject the Justice Department's radical bid for broadly expanded powers to spy on U.S. citizens.
At issue in the case -- which has focused a spotlight on the ultra-secret Foreign Intelligence Surveillance Court -- 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.
""Both the lower court and Congress have now said that Attorney General Ashcroft has gone too far in his interpretation of what the law allows,"" said Ann Beeson, Litigation Director of the Technology and Liberty Program of the American Civil Liberties Union, which filed the brief 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.
""No one is questioning the government's authority to prosecute spies and terrorists,"" Beeson added, ""but we do not need to waive the Constitution to do so.""
In legal papers filed today, the groups said that expanding government surveillance powers ""would also jeopardize other constitutional interests, including the First Amendment right to engage in lawful public dissent, and the warrant, notice, and judicial review rights guaranteed by the Fourth and Fifth Amendments.""
Under the proposed guidelines, ""the Attorney General could 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,"" said James X. Dempsey, Deputy Director of the Center for Democracy and Technology.
As the Supreme Court said when it last considered wiretap limits, the brief noted, ""The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.""
The groups urged the FISC Review Court to uphold the seven-judge panel of the Foreign Intelligence Surveillance Court, which in May unanimously rejected the government's bid for expanded powers. In its decision, the intelligence court documented abuses of such warrants by both the Bush and Clinton Administrations, including serious errors in approximately 75 applications for foreign surveillance.
In another unprecedented move, in August the court released an unclassified version of the ruling in which it explicitly rejected efforts by Attorney General Ashcroft to eliminate federal "bright line"" protections against having prosecutors direct intelligence investigations to use them for criminal prosecutions.
At a hearing last week, the Senate Judiciary Committee, which has oversight of the Justice Department, also condemned the government's latest power grab. ""We need to do our work well and ensure that domestic surveillance is aimed at true national security targets and does not simply serve as an excuse to violate the Constitutional rights of our own citizens,"" said Committee Chairman Patrick J. Leahy (D-VT). ""The abuses of the past are far too fresh simply to surrender to the executive branch unfettered discretion to determine the scope of these changes.""
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.
After the surveillance court's decision was made public in late August, the ACLU and others notified the review court that they planned to file a brief; the court has for the first time set up procedures for such filings. They had hoped to file the brief before the appeals court met to review the case, but on Sept. 9 they learned that the appeals court was meeting that day and that only the government was allowed to present arguments.
The review court's acceptance of the brief is not automatic, but the groups said they hoped that the court would take their arguments into account before issuing a ruling in the matter. In their request to file the brief, the groups said, ""It is critical that the Court hear not only from the government but from those who would protect constitutional rights against Government encroachment.""
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 friend-of-the-court brief is online at http://archive.aclu.org/court/091902FISCRbrief.pdf
A chart comparing criminal & FISA surveillance (filed as an appendix to the brief) is online at http://archive.aclu.org/court/091902FISCRchart.pdf
The groups' request for permission to file the brief is online at http://archive.aclu.org/court/091902FISCRmotion.pdf
A web feature with links to transcripts of the Senate FISA hearings and other background is online at http://archive.aclu.org/issues/privacy/FISA_feature.html