Supreme Court Refuses to Review Wiretaps Ruling

[Perry E. Metzger]

>From the New York Times:

Supreme Court Refuses to Review Wiretaps Ruling

March 24, 2003
By DAVID STOUT 




WASHINGTON, March 24 - In a case balancing national
security with civil liberties, the Supreme Court refused to
interfere today with a lower court ruling giving the
Justice Department broad new powers to use wiretaps to
prosecute terrorists. 

The justices declined without comment to review a decision
last Nov. 18 in which a special federal appeals court found
that, under a law passed after the terror attacks of Sept.
11, 2001, the Justice Department can use wiretaps installed
for intelligence operations to go after terrorists. 

That November decision was crucial, because for some two
decades there was presumed to be a "wall" between wiretap
operations for intelligence-gathering and wiretapping in
the course of criminal investigations. 

Obtaining permission for a wiretap to gather intelligence
has generally been easier than getting authorization for a
wiretap in a straightforward criminal investigation. Thus,
prosecutors were admonished not to try to skirt the tougher
standards for a wiretap in a criminal investigation by
claiming it was actually to gather intelligence. 

The landscape changed with the passage of legislation,
shortly after the Sept. 11 attacks, broadening government
surveillance powers. Justice Department investigators
applied last May for permission to wiretap an individual
who was identified in court papers only as a resident of
the United States. 

The department met resistance from the three-member Foreign
Intelligence Surveillance Act Court, which exists solely to
administer a 1978 law allowing the government to conduct
intelligence wiretaps inside the United States. That court
ordered the Justice Department to show that its primary
purpose in applying for the wiretap was intelligence
gathering and not for a criminal case. 

Moreover, the three-member court decreed that prosecutors
in the Justice Department's criminal division could not
take an active role in directing activities of the
department's intelligence division. 

Attorney General John Ashcroft appealed to the United
States Foreign Intelligence Surveillance Court of Review,
which had never met before and which exists, like the lower
court, only to oversee the 1978 law. The court of review
ruled in November that the lower court had erred when it
tried to impose restrictions on the Justice Department.
Furthermore, the court of review said, there never was
supposed to be a "wall" between intelligence gathering and
criminal investigations. 

"Effective counterintelligence, as we have learned,
requires the wholehearted cooperation of all the
government's personnel who can be brought to the task," the
review panel wrote. "A standard which punishes such
cooperation could well be thought dangerous to national
security." 

The review panel criticized the lower court, declaring that
it had improperly tried to tell the Justice Department how
to do its business, in violation of the Constitution's
separation of powers between equal branches of government. 

The Court of Review is made up of Judges Ralph B. Guy of
the United States Court of Appeals for the Sixth Circuit;
Edward Leavy of the Court of Appeals for the Ninth Circuit;
and Laurence H. Silberman of the Court of Appeals for the
District of Columbia Circuit. All were appointed to the
panel by Chief Justice William H. Rehnquist of the Supreme
Court. 

Mr. Ashcroft praised the November decision as one that
"revolutionizes our ability to investigate terrorists and
prosecute terrorist acts." 

But the American Civil Liberties Union, the National
Association of Criminal Defense Lawyers, the American-Arab
Anti-Discrimination Committee and the Arab Community Center
for Economic and Social Services, a Michigan-based
organization, assailed the November decision. "These
fundamental issues should not be finally adjudicated by
courts that sit in secret, do not ordinarily publish their
decisions, and allow only the government to appear before
them," the groups said in asking the Supreme Court to
review it. 

The A.C.L.U. and its allies had only friend-of-the-court
status in the case, since technically the Justice
Department was the only party. Thus, it was not surprising
that the Supreme Court declined today to review the lower
courts' decision. 

http://www.nytimes.com/2003/03/24/politics/24CND-SCOT.html?ex=1049536949&ei=1&en=6cbee835b0f1acbe


-- 
Perry E. Metzger		perry at piermont.com

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