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Secret Court Poses Challenges

Non-Government Litigants Lack Access, Ways to Influence Cases

By Dan Eggen
Washington Post Staff Writer
Monday, August 30, 2004; Page A21

The Justice Department has argued in a recent court case that librarians, booksellers and other businesses can easily challenge a controversial provision of the USA Patriot Act by appealing to a super-secret court that approves surveillance of terrorists and foreign intelligence agents.

The only problem, according to a document released last week, is that the same court does not allow anyone but government attorneys and agents inside its doors.

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The rules governing the Foreign Intelligence Surveillance Court also do not include procedures for outside litigants to file memorandums or otherwise influence a case, according to a copy of the rules obtained by the American Civil Liberties Union.

Jameel Jaffer, an ACLU staff lawyer, said the court rules "do not seem to contemplate the possibility that anyone other than a government attorney may appear before the court," nor do they allow for outside attorneys to file motions to quash the subpoenas the court issues.

The surveillance court was established as part of the Foreign Intelligence Surveillance Act (FISA) of 1978 and has operated in almost total secrecy since then. Justice Department statistics provided to Congress indicate the court approved more than 1,700 searches and seizures last year, eclipsing the number of traditional criminal wiretaps authorized by local and federal courts.

The five-page list of rules gives a rare glimpse into the inner workings of the FISA court, outlining the powers available to each judge and the procedures for applying for warrants and other operational details. The rules were provided to the ACLU by the FBI, which indicated they were the most recent FISA court rules in the agency's possession, Jaffer said.

A duty of the court is to oversee one of the most controversial provisions of the Patriot Act, Section 215, which allows the FBI to obtain "tangible things" from businesses during counterterrorism and counterintelligence investigations. The broadly worded section has raised the ire of librarians, in particular, because it would allow the FBI to seize library records while forbidding the library to publicly reveal the search.

Attorney General John D. Ashcroft said in September that the section had never been used, but recent court filings indicate the FBI may since have sought to use it.

In a Michigan lawsuit filed by the ACLU, Justice attorneys have argued that anyone targeted under the provision would have the ability to contest the issue. "If and when a Section 215 order is served on these plaintiffs, they will have ample opportunity to challenge it before the court that issues the order (i.e. the FISA Court)," the attorneys wrote in a July brief.

But the court's rules say that only attorneys empowered by the attorney general or government agents may appear before it, and there is no mention of accepting outside motions or briefs.

A Justice Department spokesman declined to comment last week, citing ongoing litigation.

Patrice McDermott, deputy director of government relations for the American Library Association, said the government's arguments "appear to be a red herring."

"They keep saying you can challenge it, but they have never indicated how anyone could actually do so," she said.

© 2004 The Washington Post Company