Monday, August 26, 2002; Page A14

THE GOVERNMENT'S appeal of the extraordinary opinion released last week by the Foreign Intelligence Surveillance Court is important, especially when viewed in the context of the powers the Justice Department is claiming across a range of terrorism-related cases. The appeal involves a highly technical question -- what role prosecutors may play in electronic and physical surveillance under the Foreign Intelligence Surveillance Act (FISA) and how that role was changed by the USA Patriot Act passed last year. The government's argument may carry the day. Its brief -- the first ever filed before the special appeals court that was created to review FISA cases but has never before had to meet -- lays out a strong argument that the FISA court erred. Yet if the government prevails, its victory may only show how careless Congress was in some of the changes it made to the FISA in the wake of the Sept. 11 attacks. In combination with other authorities the Justice Department claims, the surveillance powers it now covets for prosecutors under the FISA are troubling.

Traditionally, domestic law enforcement and foreign intelligence have been separate domains, kept apart legally to prevent government from spying on its citizens. In criminal cases, the government must show probable cause to look for criminal activity before it can conduct searches or wiretaps. Under the FISA, however, it can meet a lesser standard -- the theory being that while the evidence obtained may be used in criminal trials, it is being acquired chiefly for intelligence purposes, not for law enforcement. But terrorism and espionage are of legitimate interest to both intelligence officials and prosecutors. So the rise of terrorism in recent years has pressured the wall that separates the two. The judges of the FISA court, which authorizes surveillance under the statute, have historically been careful to make sure that FISA surveillance is being run by the intelligence community, not by prosecutors keen to evade the more difficult standards of the criminal law. But in the USA Patriot Act, Congress changed the FISA -- which had previously required intelligence to be the principal purpose of the surveillance -- to require that it be merely a "significant purpose" of the search or wiretap. The question now is whether that change necessarily implies that prosecutors may run the show. The FISA court said they may not, that the statute's essence is still foreign intelligence collection and that, while prosecutors may consult and be kept informed, they may not direct or manage the use of this intelligence tool.

The Justice Department, in disagreement, argues that collection of evidence for terrorism prosecutions is itself a means of protecting against foreign threats -- because prosecutions can neutralize potential terrorists and deter others: As long as the purpose of the prosecution is to protect national security, the FISA may be used primarily to obtain evidence for that prosecution, and nothing prevents prosecutors from dominating the FISA process. In effect, the wall is gone: Gathering evidence for national security prosecutions and intelligence activity are one and the same.

This reading by Justice represents yet another area in which the department claims power to choose lesser standards in terrorism cases with no penalty for circumventing some basic rules. Having identified a terrorism suspect, Justice wants unbridled choice of the legal regime under which to conduct surveillance; prosecutors can go the normal criminal route, or they can use FISA surveillance, where they benefit from lower standards, diminished accountability, heightened secrecy and the constrained ability on the part of the target to object. If the surveillance generates information, moreover, prosecutors can use it as evidence in a criminal case. If the normal criminal process turns out not to serve the government's ends, the president may choose a military tribunal or simply lock the target up as an "enemy combatant" -- a designation the Justice Department then defends in court with only the most cursory evidentiary presentation.

At every stage, in other words, prosecutors are claiming for themselves maximal flexibility and minimal accountability -- the result being that Americans can be watched and then locked up without any of the protections of the normal criminal justice system. The result is nothing less than an emerging alternative legal system for terrorism cases.

Is this what Congress wanted? We hope not. If this trend is contrary to Congress's intent, then lawmakers must intervene and not leave exclusively to the courts the job of pushing back and establishing where these executive powers finally end.