Spying on Americans is made easier by court Ruling expands U.S. authority

By Shannon McCaffrey Knight Ridder Newspapers Nov. 19, 2002

WASHINGTON - In a decision that will greatly expand the government's authority to eavesdrop on Americans, a federal appeals court panel ruled Monday that the Justice Department has broad powers to use wiretaps and other means to combat terrorism.

A three-judge panel overturned a decision in May by the secret Foreign Intelligence Surveillance Court that certain surveillance provisions in the USA Patriot Act infringed on citizens' privacy.

Monday's decision means the government will face fewer hurdles when it seeks to listen to telephone conversations and read the e-mail of espionage or terrorism suspects. Intelligence agents and criminal prosecutors also will be able to share information more freely.

The special appeals court, which consisted of three federal appellate judges named by Chief Justice William Rehnquist, ruled Monday that the expanded powers sought in the USA Patriot Act are "constitutional because the surveillances it authorizes are reasonable."

Attorney General John Ashcroft called the decision "a victory for liberty, safety and the security of the American people."

Armed with the ruling, Ashcroft announced Monday that the FBI was doubling the number of lawyers in its National Security Law Unit, which handles foreign intelligence wiretap applications, and would add 25 lawyers to the Justice Department's Office of Intelligence Policy and Review.

Ashcroft also announced the development of a computer system to help investigators get quick court approval for surveillance.

Justice Department lawyers who seek authorization for wiretaps or surveillance for suspected spies or terrorists must go to the Foreign Intelligence Surveillance Court. That court was created under the Foreign Intelligence Surveillance Act of 1978 to oversee sensitive law-enforcement activities.

The court typically toils in secret. But it threw open its doors this year when it not only rejected for the first time a government request for broader surveillance powers but also made its opinion public. In that unprecedented and deeply critical decision, the surveillance court said there had been 75 instances of surveillance-warrant abuse during the Clinton administration.

The Justice Department appealed that court's decision to the three-member Court of Review, which swung into action for the first time.

The judges who ruled Monday are Ralph Guy, of the U.S. Court of Appeals for the 6th Circuit in Cincinnati, Edward Leavy, of the U.S. Court of Appeals for the 9th Circuit in San Francisco, and Laurence Silberman, of the U.S. Court of Appeals in the District of Columbia.

Ashcroft said the Justice Department was creating a system so that wiretap and surveillance applications could be processed faster. If they are rejected, Ashcroft or FBI Director Robert Mueller would be informed promptly so they could review the decision.

Monday's ruling was a disappointment to civil liberties groups, which had fought the USA Patriot Act provisions that the appeals panel validated.

"Ordinary American citizens are more likely to become the victims of highly intrusive government surveillance because meaningful judicial oversight has effectively been eliminated," said Jameel Jaffer, staff attorney for the American Civil Liberties Union.

Mikal Condon of the Electronic Privacy Information Center said, "It chips away at what were once incredibly high standards that the government had to meet to monitor U.S. citizens."

The government has the sole right to appeal the ruling under the law. But Jaffer said the ACLU, which filed a friend of the court brief in the case, was exploring ways to get the case to the U.S. Supreme Court.

The Justice Department had argued to the court that the USA Patriot Act, which was passed last year after the Sept. 11 terrorist attacks, gave it new police-surveillance powers.

The secret surveillance court ruled that the Justice Department was trying to tear down the wall between prosecutors, who bring criminal charges, and intelligence agents, who may not bring criminal charges but must cast a wide net to track spies and terrorists.