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Broad U.S. Wiretap Powers Upheld
Secret Court Lifts Bar on Terror Suspect Surveillance

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.

Under yesterday's ruling, they will now be able to obtain those warrants more easily and pass on the information they gather to criminal prosecutors.

Bush administration officials stressed that, in their view, the appeals court was not granting authority to wiretap a wider range of suspects. Rather, Ashcroft and other officials said, the ruling simplifies the process for running such investigations by avoiding the need to halt an intelligence probe once investigators observe evidence of a crime by the suspected terrorist.

"We think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close," the three-judge panel wrote in the ruling, parts of which were classified. "We therefore believe firmly . . . that FISA as amended is constitutional because the surveillances it authorizes are reasonable."

The appeals court also found that government lawyers appear to have been misinterpreting secret wiretap law since the 1980s by construing limitations that did not exist within federal statutes. Many lawmakers and other critics have argued since the Sept. 11, 2001, terror attacks that Justice and FBI attorneys had grown too timid in their pursuit of secret warrants, citing, for example, their failure to seek one in the case of alleged terrorist conspirator Zacarias Moussaoui, who was detained weeks before the strikes on New York and Washington.

Victoria Toensing, who oversaw terrorism prosecutions in the Reagan Justice Department, said the court's ruling was long overdue, and that misinterpretations of surveillance law had severely hampered prosecutors and investigators.

But Ann Beeson of the American Civil Liberties Union said she was "deeply disappointed" in the decision, contending that it sets up the intelligence court as a "rubber stamp" for "intrusive" surveillance warrants.

"As of today, the attorney general can 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," Beeson said.

Because the targets of the intelligence court's warrants do not know they are being monitored, there is no provision for an appeal of yesterday's ruling by anyone other than the government. But leaders of the ACLU and other groups said they were investigating other options to challenge the decision.

Legislative reaction to the ruling was mixed. Sen. Charles E. Grassley (R-Iowa) said the decision "should untie the government's hands and help prevent terrorist attacks." But Sen. Patrick J. Leahy (D-Vt.), who has wrangled with the Justice Department over FISA provisions, cautioned that the ruling still imposes important restrictions on the government's conduct.

The ruling issued yesterday involves two obscure and usually secretive courts: the Foreign Intelligence Surveillance Court, which oversees intelligence warrants sought by the FBI; and the Foreign Intelligence Surveillance Court of Review, a special panel set up to handle any appeals. Both were created by Congress in 1978 as part of FISA, which was approved after revelations of CIA and FBI abuses during the Cold War and civil rights eras.

Appointed by Chief Justice William H. Rehnquist, the current intelligence appeals panel comprises three semi-retired appellate court judges: Ralph B. Guy, Edward Leavy and Laurence Hirsch Silberman. All were originally Reagan appointees to the bench.

The intelligence court had never publicly issued a joint ruling until May, and the appeals panel had never heard a case. The current legal wrangling began six months ago, when the intelligence court ruled against procedures proposed by Ashcroft to allow criminal prosecutors and intelligence investigators to more freely share information.

In arriving at its decision, which was not made public until August, the Foreign Intelligence Surveillance Court outlined dozens of past abuses of the surveillance law and concluded that Ashcroft's proposals "were not reasonably designed" to safeguard the privacy rights of U.S. citizens.

In seeking review, government lawyers wrote in court papers that the intelligence court had "wholly exceeded" its authority in refusing Ashcroft's requests. They argued that Congress had clearly approved broader surveillance authority in the wake of Sept. 11.

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