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RIGHTS AND THE NEW REALITY

Shine Light on Secret Court

September 16, 2002

A special federal appeals court met in secret last week to hear the Justice Department argue that it needs still more latitude to spy on suspected terrorists. The three-member court heard only from lawyers for Atty. Gen. John Ashcroft on why the expanded powers Congress gave him in the USA Patriot Act to tap phones, scrub computers and search homes are not enough. No one was allowed to be present to argue against Ashcroft, not even members of the Senate Judiciary and Intelligence committees who asked to attend.

The next day, Judiciary Committee members--obviously troubled by the potential for civil liberties abuses in these secret, one-sided proceedings--began discussing the outlines of a possible legislative response. Their concern is more than warranted.

Congress created the Foreign Intelligence Surveillance Act court to keep government from snooping on its political opponents, as Richard Nixon had done. The seven judges rule on requests for national security-related wiretaps or searches. Congress let the court operate behind closed doors to keep foreign spies in the dark. But it directed that, though the information gathered in these searches could be used to try a suspected spy for espionage, it could not be passed to local police to bring criminal charges for, say, grand theft or drug possession. That's because FISA courts can approve search warrants on a lower threshold of suspicion than the "probable cause" standard enshrined in the 4th Amendment that governs criminal cases. Under the Patriot Act, investigators can get a warrant even if there's no evidence of wrongdoing.

Nonetheless, in an unprecedented opinion, the FISA court last May rebuked Ashcroft for having gone too far in letting criminal investigators press for secret searches. The court's concern mirrors the worries of many that the war on foreign terrorists is leading to civil liberties abuses at home. Ashcroft last week appealed to the three judges who review FISA court decisions, a trio that had never before been convened. The panel's ruling is pending.

Meanwhile, Congress would do well to shine a judicious bit of light on the FISA court. Congressional proposals to require more reporting from the court--on the number of people targeted in these searches, the prosecutions that result and the legal arguments the court adopts--make sense. So do clearer limits on the attorney general's unfortunate tendency to see the Constitution as more an obstacle than a guide to his anti-terrorism efforts.

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