FISA Court Weighs Handing More Power to Justice

WASHINGTON – A secret appellate court has met for the first time in its 24-year history to consider a request from the Justice Department for more power to wiretap suspected terrorists and spies, according to department officials.

The appeals court, the United States Foreign Intelligence Surveillance Court of Review, convened in a high-security room at the Justice Department in Washington Monday and made no announcement of whether it had made a decision.

But senators immediately asked the court to publicly release its decision and the arguments Justice Department lawyers made in front of it, so lawmakers can know how government prosecutors are using the changes to the Foreign Intelligence Surveillance Act granted after the Sept. 11 attacks last year.

"We need to know how this law is being interpreted and applied," Senate Judiciary Chairman Patrick Leahy, D-Vt. said Tuesday. No answer had been received from the Monday request, Senate officials said.

The appeal stems from a decision from the main court that assesses the legitimacy of Justice Department and FBI requests to spy on people suspected of foreign espionage inside U.S. borders.

Civil liberties groups denounced the secret nature of the court.

"Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy," said Ann Beeson, a litigation director at the American Civil Liberties Union.

When or if the court's ruling on the department's request will ever be made public was not clear.

In August, the secret court struck down a government surveillance request and the government's assertion that national security concerns justify some lessening of previously recognized civil liberties or privacy rights, lawyers said.

The Justice Department had argued that under the new laws, the FBI could use the surveillance law to perform searches and wiretaps "primarily for a law enforcement purpose, so long as a significant foreign intelligence purpose remains."

The USA Patriot Act, passed late in 2001, changed the surveillance law to permit its use when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of such an investigation. Critics at the time said they feared government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.

Senate Republicans and Democrats disagreed on whether the USA Patriot Act loosened the wiretap laws to include criminal investigations.

"It was not the intent of the amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool," Leahy said. "We all wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did not intend to obliterate the distinction between the two, and we did not do so."

But Republicans said that was the exact intent of the law. "It is clear that Congress intended to allow greater use of FISA for criminal purposes and to increase the sharing of intelligence information and coordination of investigations between intelligence and law enforcement officers," said Sen. Orrin Hatch, R-Utah.