Court stiff-arms privacy challenge

Posted on Tue, Mar. 25, 2003
Court stiff-arms privacy challenge
By David G. Savage
LOS ANGELES TIMES

WASHINGTON - The Supreme Court on Monday turned away a preliminary challenge to the government's expanded powers to wiretap and search people who are suspected of having links to foreign terrorists.

The justices refused to allow the American Civil Liberties Union to appeal on behalf of Arab Americans and others who believe they may be being secretly monitored.

Monday's dismissal leaves open a possible future legal challenge brought by someone who says he was wrongly wiretapped and had his house searched.

But the move nonetheless left ACLU lawyers disappointed and frustrated.

"This is a strange situation where you have a broad ruling and no one can appeal it," said Ann Beeson, an ACLU lawyer who represented the American-Arab Anti-Discrimination Committee.

Last year, in an unusual court hearing behind closed doors at the Justice Department, Attorney General John Ashcroft won the legal authority to merge the FBI's crime-fighting and spying units to track suspected terrorists.

"It is vitally important that the government's intelligence and law enforcement officials coordinate their efforts to protect America from foreign threats to national security," Ashcroft said Monday.

Before last year, the FBI had maintained a "wall" between spying and criminal probes, a legacy of the Watergate era.

The Foreign Intelligence Surveillance Act, or FISA, allowed the attorney general to obtain secret warrants to spy on suspected foreign agents or international terrorists.

The warrants were authorized by a judge inside the Justice Department. But until last year, the government said, it kept these spying operations separate from ordinary criminal probes.

Ashcroft said that the separation was outdated and hampered the FBI in its pursuit of terrorists operating in the United States. He argued, and the special FISA review court agreed, that the new USA Patriot Act authorized closer coordination between the government's crime fighters and intelligence agents.

Civil libertarians protested the move on two counts.

First, they said, the government may be violating the Constitution's ban on "unreasonable searches and seizures." Normally, the police and federal agents can obtain a search warrant to enter a home or tap a phone only when they have evidence of criminal wrongdoing.

Federal agents do not need such evidence to obtain a search warrant under FISA. They need only show evidence indicating the target is linked to a foreign terrorist group. "FISA was supposed to apply to a narrow category of intelligence investigations. Under Ashcroft's interpretation, they can use FISA in ordinary criminal cases," said Beeson.

Justice Department lawyers deny that charge. They say they use FISA warrants only against foreigners who are believed to have ties to terrorist organizations.

Secondly, civil libertarians also object to the closed-door legal hearings on FISA. Since these intelligence probes must be kept secret, the Justice Department was authorized to seek warrants in secret hearings within its building.

When one FISA judge said Ashcroft was exceeding his legal authority, a special appeals court met to review the dispute and to rule on the matter. Outside attorneys, including the ACLU, were barred.

Still, the civil liberties advocates believe they will have a chance to challenge the sweep of Ashcroft's order in a future case.

"At some point, the government will introduce evidence in a criminal case that came from a FISA wiretap. The lawyers can challenge that as illegal, and the issue can be appealed," Beeson said.

But that will offer a remedy only for people who are indicted for crimes, she noted.

"We are most concerned about innocent victims of this surveillance," Beeson said. "Since they won't be charged with anything, they will have no opportunity to challenge it."