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[This media release redistributed with permission by EFF
as a courtesy to the media professionals on the EFF presslist.
EFF joined the ACLU and other organizations in this court filing.
Available for comment on this issue is EFF Senior Staff Attorney
Lee Tien, tien@eff.org, +1 415 436 9333 x102
EFF resources on this issue:
http://www.eff.org/Privacy/Surveillance/20020919_eff_FISCR.html
]
Rights Groups Urge Secret Appeals Court to Reject Ashcroft's
Radical Bid For Broadly Expanded Powers To Spy on U.S. Citizens
FOR IMMEDIATE RELEASE
Friday, September 20, 2002
CONTACT: Emily Whitfield, National ACLU, (212) 549-2566
or 2666
James Dempsey, CDT, (202) 637-9800 x112
WASHINGTON -- In the first case of its kind, a coalition of
civil liberties groups today urged a secret appeals court
to reject the Justice Department's radical bid for broadly
expanded powers to spy on U.S. citizens.
At issue in the case -- which has focused a spotlight on
the ultra-secret Foreign Intelligence Surveillance Court --
is whether the Constitution and the USA PATRIOT ACT adopted
by Congress after the Sept. 11 terrorist attacks permit the
government to use looser foreign intelligence standards to
conduct criminal investigations in the United States.
"Both the lower court and Congress have now said that
Attorney General Ashcroft has gone too far in his
interpretation of what the law allows," said Ann Beeson,
Litigation Director of the Technology and Liberty Program
of the American Civil Liberties Union, which filed the
brief together with the Center for Democracy and
Technology, the Center for National Security Studies, the
Electronic Privacy Information Center, the Electronic
Frontier Foundation, and the Open Society Institute.
"No one is questioning the government's authority to
prosecute spies and terrorists," Beeson added, "but we do
not need to waive the Constitution to do so."
In legal papers filed today, the groups said that expanding
government surveillance powers "would also jeopardize other
constitutional interests, including the First Amendment
right to engage in lawful public dissent, and the warrant,
notice, and judicial review rights guaranteed by the Fourth
and Fifth Amendments."
Under the proposed guidelines, "the Attorney General could
suspend the ordinary requirements of the Fourth Amendment
in order to listen in on phone calls, read e-mails, and
conduct secret searches of Americans homes and offices,"
said James X. Dempsey, Deputy Director of the Center for
Democracy and Technology.
As the Supreme Court said when it last considered wiretap
limits, the brief noted, "The price of lawful public
dissent must not be a dread of subjection to an unchecked
surveillance power."
The groups urged the FISC Review Court to uphold the
seven-judge panel of the Foreign Intelligence Surveillance
Court, which in May unanimously rejected the government's
bid for expanded powers. In its decision, the intelligence
court documented abuses of such warrants by both the Bush
and Clinton Administrations, including serious errors in
approximately 75 applications for foreign surveillance.
In another unprecedented move, in August the court released
an unclassified version of the ruling in which it
explicitly rejected efforts by Attorney General Ashcroft to
eliminate federal "bright line" protections against having
prosecutors direct intelligence investigations to use them
for criminal prosecutions.
At a hearing last week, the Senate Judiciary Committee,
which has oversight of the Justice Department, also
condemned the government's latest power grab. "We need to
do our work well and ensure that domestic surveillance is
aimed at true national security targets and does not simply
serve as an excuse to violate the Constitutional rights of
our own citizens," said Committee Chairman Patrick J.
Leahy (D-VT). "The abuses of the past are far too fresh
simply to surrender to the executive branch unfettered
discretion to determine the scope of these changes."
The FISA court and the Court of Review were created under a
law passed by Congress in 1978 which authorizes government
wiretap requests in foreign intelligence investigations.
Under these procedures, all hearings and decisions are
conducted in secret.
After the surveillance court s decision was made public in
late August, the ACLU and others notified the review court
that they planned to file a brief; the court has for the
first time set up procedures for such filings. They had
hoped to file the brief before the appeals court met to
review the case, but on Sept. 9 they learned that the
appeals court was meeting that day and that only the
government was allowed to present arguments.
The review court's acceptance of the brief is not
automatic, but the groups said they hoped that the court
would take their arguments into account before issuing a
ruling in the matter. In their request to file the brief,
the groups said, "It is critical that the Court hear not
only from the government but from those who would protect
constitutional rights against Government encroachment."
The FISC Review Court is a special three-judge panel
appointed by Chief Justice William H. Rehnquist in
accordance with provisions of the Foreign Intelligence
Surveillance Act. The judges are: Hon. Laurence H.
Silberman of the U.S. Court of Appeals for the District of
Columbia Circuit; Hon. Edward Leavy, U.S. Court of Appeals
for the Ninth Circuit and Hon. Ralph B. Guy, Jr., U.S.
Court of Appeals for the Sixth Circuit.
Links:
The friend-of-the-court brief is online at
http://www.aclu.org/court/091902FISCRbrief.pdf
A chart comparing criminal & FISA surveillance (filed as an
appendix to the brief) is online at
http://www.aclu.org/court/091902FISCRchart.pdf
The groups' request for permission to file the brief is
online at
http://www.aclu.org/court/091902FISCRmotion.pdf
A web feature with links to transcripts of the Senate FISA
hearings and other background is online at
http://www.aclu.org/issues/privacy/FISA_feature.html
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