Published November 18, 2002
WASHINGTON – The Justice Department moved swiftly Monday to take advantage of a court ruling broadening its ability to track suspected terrorists and spies using wiretaps and other surveillance techniques.
Attorney General John Ashcroft said the ruling by a specially appointed three-judge review panel will let the Justice Department make better use of expanded surveillance powers under the USA Patriot Act, passed by Congress after the Sept. 11, 2001, terrorist attacks.
It was the first time the appeals panel had overturned a ruling by the ultra-secret Foreign Intelligence Surveillance Court, which had sought to impose restrictions on how and when surveillance authority could be used to track foreign agents.
A key part of the ruling removes legal barriers between FBI and Justice Department intelligence investigators and prosecutors and law enforcement personnel.
The ruling, Ashcroft told reporters, "revolutionizes our ability to investigate terrorists and prosecute terrorist acts."
But the American Civil Liberties Union and several other groups contend the ruling will harm free speech and due process protections by giving the government far greater ability to listen to telephone conversations, read e-mail and search private property.
"We are deeply disappointed with the decision, which suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants," said Ann Beeson, who argued the case for the ACLU.
Ashcroft announced a number of immediate steps, including development of a computer system to help investigators get quick court approval for surveillance; doubling of the number of FBI attorneys working with surveillance applications; and designation of one lawyer in each U.S. attorney's office as the local point person for these cases.
FBI Director Robert Mueller also created a new unit to handle cases brought under the 1978 Foreign Intelligence Surveillance Act, which was amended by last year's anti-terrorism Patriot Act to boost surveillance powers. The upshot, Ashcroft said, is improved coordination and cooperation between federal agencies, which have drawn heavy criticism for failing to detect and stop terrorists within the United States.
"This will greatly enhance our ability to put pieces together that different agencies have. I believe this is a giant step forward," Ashcroft said.
The review panel's opinion overturned a May decision by the Foreign Intelligence Surveillance Court on Ashcroft's proposed surveillance guidelines under the Patriot Act.
An appeal to the Supreme Court was unlikely, at least any time soon. The Justice Department is the sole party to the case, and as the winner had no plans to appeal, officials said. The ACLU and others would have to find another option, such as a criminal case involving intelligence surveillance, to ask the high court for a hearing.
"This is a major constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court," Beeson said.
Robert F. Turner, a conservative who is associate director of the Center for National Security Law at the University of Virginia, said the decision will enhance government coordination in the war against terrorism and should not unduly infringe on the constitutional protection against unreasonable searches and seizures.
"The balance we have to make right now is, some decisions might infringe upon some liberties, but on the other hand might cost a lot of lives," Turner said.
Reaction was mixed on Capitol Hill. Rep. John Conyers of Michigan, ranking Democrat on the House Judiciary Committee, called the ruling "despicable" and contended it adds to what liberals consider the Bush administration's sustained assault on civil liberties.
"Piece by piece, this administration is dismantling the basic rights afforded to every American under the Constitution," Conyers said.
But Sen. Charles Grassley, R-Iowa, a senior Republican on the Senate Judiciary Committee, said the decision "should untie the government's hands and help prevent terrorist attacks." Grassley added, however, lawmakers must keep a close watch to guard against possible abuses.
The decision was issued by a trio of judges appointed by President Ronald Reagan: Ralph B. Guy Jr., a semiretired judge on the 6th U.S. Circuit Court of Appeals in Cincinnati; Edward Leavy, a semiretired judge on the 9th U.S. Circuit Court of Appeals in San Francisco; and Laurence Hirsch Silberman, a semiretired judge on the U.S. Court of Appeals for the District of Columbia.
They are sitting as the U.S. Foreign Intelligence Surveillance Court of Review, which is named by Chief Justice William Rehnquist.
The intelligence court, created in 1978, is charged with overseeing sensitive law enforcement surveillance by the U.S. government. The so-called spy court must approve wiretaps and other surveillance specifically for suspected spies, terrorists or foreign agents.
Its May 17 ruling was the first-ever substantial defeat for the government on a surveillance issue, and its unprecedented, declassified public opinion issued in August documented abuses of surveillance warrants in 75 instances during both the Bush and Clinton administrations. It approved 934 applications in 2001.
The spy court concluded that Ashcroft's proposed rules were "not reasonably designed" to safeguard the privacy of Americans.
The three-judge panel found that "the definition of an agent of a foreign power ... is closely tied to criminal activity" and that the 1978 law never specifically banned cooperation between the intelligence and criminal parts of the Justice Department, or between it and the CIA.
The judges found it "quite puzzling" that the Justice Department had limited its use of intelligence surveillance if it intended to actually prosecute the targets for crimes.
The changes permit wiretaps when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of an investigation.
Critics are concerned the government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.
Ashcroft said that won't happen.
"We have no desire whatsoever to in any way erode or undermine constitutional liberties," he said.