not strictly "a federal appeals court," as the Times states) decision reverses procedural restrictions placed by the FISA Court on FBI surveillances relating to foreign intelligence investigations, but upholds the pre-PATRIOT Act distinction that "the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes." -- Jennifer Van Bergen is TruthOut's legal analyst.)

t r u t h o u t | Statement

Congressman John Conyers, Jr.

Ranking Member, Committee on the Judiciary

Conyers Condemns Today's FISA Court Decision

Monday, 18 November, 2002

Congressman John Conyers, Jr., Ranking Member of the House Judiciary Committee and Dean of the Congressional Black Caucus, issued the following statement regarding today's decision by a secret appeals court to give the Justice Department broad authority in conducting wiretaps and other surveillance on terrorism suspects within the United States:

"The Administration's race down the slippery slope of eroding constitutional safeguards seems to have no end in sight. Today's disappointing decision constitutes an embarrassing step backwards for civil liberties in this country. Piece by piece, this Administration is dismantling the basic rights afforded to every American under the Constitution.

"Not only is this a despicable ruling, it is a ruling that was decided in secret behind closed doors. What the public does not know is that the court heard only a one-sided argument by the Justice Department and FBI, which have repeatedly lied and misinformed the lower FISA court when seeking authorizations for secret wiretaps and physical searches. And just this week, the Inspector General of the Justice Department reported there is a double standard of discipline, a lenient one for management and a strict one for employees.

This ruling does not at all counter the lower court's ruling that federal prosecutors had lied to the court and last week's disclosure that the fbi gives preferential treatment to upper level mgt in disciplinary matters. The Justice Department may have won this round, but it cannot use these small victories to block a much-needed overhaul of the FBI."

Go To Original

Appeals Panel Reverses Limits Placed on Justice Dept. Wiretaps

By David Stout

New York Times

Monday, 18 November, 2002

WASHINGTON, Nov. 18 -- The Bush administration won approval today for wider use of surveillance against terror and espionage suspects when a federal appeals court declared that such surveillance does not violate the Constitution.

The ruling by a three-judge panel sitting as the Foreign Intelligence Surveillance Court of Review upheld the argument of the Justice Department that a lower court was wrong to deny it the authority to expand wiretapping and other surveillance -- especially in view of what happened on Sept. 11, 2001.

The three-judge panel appointed by Chief Justice William H. Rehnquist noted, among other things, that the standard of evidence required to open a wiretap for national security purposes is generally much lower than that needed for domestic criminal cases.

Today's ruling overturned one last May by the highly secret Foreign Intelligence Surveillance Court, which considers wiretap requests in terror and espionage cases.

In the May ruling, the surveillance court unanimously rejected a request from the Bush administration to break down many barriers to cooperation between criminal prosecutors at the Justice Department and counterintelligence agents at the Federal Bureau of Investigation. That procedural "wall" is intended in part to prevent intrusions into privacy and civil rights in the name of national security.

In appealing that ruling, the Justice Department argued that it need not always be blocked by that wall in view of new authority that it was granted in an antiterrorism bill enacted by Congress after the Sept. 11 attacks.

Today, the appeals court accepted much of the Justice Department's position. The tribunal said it recognized the bedrock importance of the Fourth Amendment against unreasonable searches and seizures and emphasized that it was not ready "to jettison Fourth Amendment requirements in the interest of national security."

But the appeals panel went on to say that it also recognized the validity and importance of the Foreign Intelligence Surveillance Act of 1978, which imposed a formal court process on wiretaps in national security investigations.

The general purpose of the 1978 law, "to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from `ordinary crime control,' " the appeals court wrote. "After the events of Sept. 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date."

The American Civil Liberties Union was among the organizations arguing against the expanded surveillance powers. Jameel Jaffer, an A.C.L.U. lawyer, told The Associated Press that he was disappointed with today's ruling, which he said suggested that the surveillance court "exists only to rubber-stamp government decisions."

The appeals court said that in cases of terrorism or espionage a broad approach was warranted. "Effective counterintelligence, as we have learned, requires the wholehearted cooperation of all the government's personnel who can be brought to the task," the appeals court wrote. "A standard which punishes such cooperation could well be thought dangerous to national security."

Attorney General John Ashcroft said the ruling would help in the pursuit of terrorists without subjecting law-abiding people to intrusions. "We have no desire whatsoever to in any way erode or undermine Constitutional liberties," Mr. Ashcroft said.

It was not immediately clear whether today's ruling would be appealed to the Supreme Court.

Examining the language in the 1978 law, and later comments by members of Congress, the appeals court said it seemed clear that both the Senate and House intended that the so-called wall between intelligence gathering and criminal prosecution should not always be insurmountable.

The court cited comments by Senator Dianne Feinstein, Democrat of California, who said last fall that there could easily be cases "where the subject of the surveillance is both a potential source of valuable intelligence and the potential target of a criminal prosecution."

"Many of the individuals involved in supporting the Sept. 11 attacks may well fall into both of these categories," Senator Feinstein said.

Today's decision was issued by Judges Ralph B. Guy Jr., a semiretired member of the United States Court of Appeals for the Sixth Circuit in Cincinnati; Edward Leavy, a semiretired member of the Court of Appeals for the Ninth Circuit, in San Francisco, and Laurence Hirsch Silberman, a semiretired member of the Court of Appeals for the District of Columbia Circuit.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

--------------------------------------------------------------------------------