Appeals panel rejects secret court's limitations on terrorist wiretaps

By Curt Anderson, Associated Press, 11/18/02

WASHINGTON -- The Justice Department has broad discretion in the use of wiretaps and other surveillance techniques to track suspected terrorists and spies, a federal appeals court panel ruled Monday.

In a 56-page opinion overturning a May decision by the ultra-secret Foreign Intelligence Surveillance Court, the three-judge panel said the expanded wiretap guidelines sought by Attorney General John Ashcroft under the new USA Patriot Act law do not violate the Constitution.

The special review court ordered the lower court to issue a new ruling giving the government the powers it seeks. The spy court's restrictions, according to the ruling, "are not required by (the law) or the Constitution."

Ashcroft said the decision "revolutionizes our ability to investigate terrorists and prosecute terrorist acts."

The American Civil Liberties Union and several other groups had argued that Ashcroft's proposed guidelines would unfairly restrict free speech and due process protections by giving the government far greater ability to listen to telephone conversations and read e-mail.

"We're disappointed with the decision, which suggests that (the spy court) exists only to rubber-stamp government decisions," said Jameel Jaffer, an ACLU staff attorney.

Ashcroft said he believes there are adequate safeguards in the act to ensure the government does not overstep its bounds in gathering information.

"We have no desire whatsoever to in any way erode or undermine constitutional liberties," he said.

It was not immediately clear whether the ACLU or other groups will appeal the case to the Supreme Court. The government has sole right of appeal under the law, but attorneys were exploring other ways of getting the case to the high court.

The decision was issued by a trio of judges appointed by President Reagan: Ralph B. Guy Jr., a semiretired judge on the 6th U.S. Circuit Court of Appeals in Cincinnati; Edward Leavy, a semiretired judge on the 9th U.S. Circuit Court of Appeals in San Francisco; and Laurence Hirsch Silberman, a semiretired judge on the U.S. Court of Appeals for the District of Columbia.

They are sitting as the U.S. Foreign Intelligence Surveillance Court of Review, which is named by Chief Justice William Rehnquist.

The intelligence court, created in 1978, is charged with overseeing sensitive law enforcement surveillance by the U.S. government. Its May 17 ruling was the first-ever substantial defeat for the government on a surveillance issue, and its unprecedented, declassified public opinion issued in August documented abuses of surveillance warrants in 75 instances during both the Bush and Clinton administrations.

The Justice Department had argued before the appeals panel that the spy court had "wholly exceeded" its authority and that Congress clearly approved of the greater surveillance authority when it passed the Patriot Act a month after the Sept. 11 terror attacks.

The changes permit wiretaps when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of an investigation. Critics at the time said they feared the government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.

The spy court had concluded that Ashcroft's proposed rules under that law were "not reasonably designed" to safeguard the privacy of Americans.

But the three-judge panel overturned that, saying the new law's provisions on surveillance "certainly come close" to meeting minimal constitutional standards regarding searches and seizures. The government's proposed use of the Patriot Act, the judges concluded, "is constitutional because the surveillances it authorizes are reasonable."