Broad U.S. Wiretap Powers Upheld

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By Dan Eggen
Washington Post Staff Writer
Tuesday, November 19, 2002

A secretive appeals court yesterday cleared the way for the Justice Department to use broad new authority to conduct wiretaps and other surveillance of terrorism and spying suspects in the United States, overturning a lower court that had blocked Attorney General John D. Ashcroft's efforts out of fear the new powers would be abused.

The special three-judge panel, issuing its very first ruling, found that the USA Patriot Act -- enacted in the wake of the Sept. 11, 2001, attacks -- allows intelligence investigators and criminal prosecutors to more easily share information about ongoing terrorism and espionage cases.

The decision represents a clear legal triumph for Ashcroft, who has aggressively attempted to implement new procedures governing Foreign Intelligence Surveillance Act (FISA) wiretaps and search warrants, which are never revealed to suspects and are approved by a special court that meets in secret at Justice Department headquarters.

The appeals court's action "revolutionizes our ability to investigate terrorists and prosecute terrorist acts," Ashcroft said at a Washington news conference. "The decision allows the Department of Justice to free immediately our agents and prosecutors in the field to work more closely and cooperatively in achieving our core mission -- the mission of preventing terrorist attacks."

In a sign of the ruling's potential reach, Ashcroft yesterday announced a slate of new actions designed to intensify the use of secret surveillance in the United States, including the designation of special intelligence prosecutors in every federal court district and the creation of a new FBI unit that will seek intelligence warrants.

Civil libertarians and defense attorneys described the 56-page ruling as a tremendous setback, arguing that it would allow the government to aggressively spy on innocent U.S. citizens with few restrictions and little oversight. The lower court ruling that had rejected the new guidelines proposed by Ashcroft accused the FBI of misleading the special intelligence court in 75 separate cases, all of them under then-FBI Director Louis J. Freeh.

"Having found out that the fox has eaten half the chickens, the court has decided the fox should have more authority over the chicken coop with virtually no oversight," said Joshua L. Dratel, who argued against Ashcroft in a brief filed by the National Association of Criminal Defense Lawyers. "When you start expanding authority like this to where there's no standards, all you increase are the number of innocent people who are surveilled unnecessarily."

Yesterday's ruling comes amid preparations to thwart domestic terror strikes if the United States goes to war with Iraq, including ongoing efforts by the FBI to monitor and interview Iraqis in the United States.

"This is a very big win for this administration," Stewart Baker, a former general counsel for the National Security Agency, said of the ruling. "It is going to be the definitive statement on this issue for years to come."

The decision came on the same day that a San Francisco-based federal appellate court blocked a challenge to the detention of more than 600 suspected terrorists and Taliban fighters at the U.S. Naval Base in Guantanamo Bay, Cuba. The U.S. Court of Appeals for the 9th Circuit ruled that a group of clergy and professors has no legal standing to represent Afghan war prisoners, effectively ending that attempt to mount a court challenge on their behalf.

In a third case yesterday, the government told a federal appeals court in Washington that releasing the names of hundreds of domestic detainees in the terrorism investigation could help the al Qaeda terrorist network. The Justice Department is appealing the ruling of a U.S. District Court judge, who ordered the names released.

Under the rules that govern surveillance of terror and spy suspects, Justice Department lawyers applying for authority to use wiretaps and conduct searches face less formidable legal obstacles than they would in seeking similar measures in regular criminal courts. In essence, they must persuade the FISA court only that there is probable cause to believe that the suspect is an agent of a terrorist group or foreign power.


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© 2002 The Washington Post Company

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