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Wednesday | September 04, 2002

Spy court travails

Apparently feeding from Ashcroft's talking points, Time Magazine assails a recent ruling by the previously secret "Spy Court" (Foreign Intelligence Surveillance Court ):

The court ruled that the Justice Department and FBI could not take advantage of several key liberalizations of FISA included in the U.S.A. Patriot Act, passed after the Sept. 11 attacks. Attorney General John Ashcroft wanted criminal prosecutors and counterintelligence agents to share information in a coordinated manner, and Congress agreed by legalizing such information sharing in the act; but the court now insists that Justice continue to observe the pre-Sept. 11 FISA restrictions. As a result, the Administration says its war on terrorism hangs in the balance. As the FISA law stands, an FBI intelligence squad and criminal squad, both assigned to watch potential terrorists, cannot freely talk to each other. If the intelligence squad finds out through a wiretap that a bomb is about to be set off, it cannot instantly tip off a criminal squad, so the would-be villains can be rounded up. Also, the "spitting on the sidewalk" strategy is undermined; evidence produced by FISA wiretaps cannot be used to support an arrest for a mundane crime like credit-card fraud. Ashcroft and his aides regard the situation as silly and dangerous.
Aside from the fact that Ashcroft finds the entire U.S. Constitution "silly and dangerous", Time's take on the issue is effectively and comprehensively rebutted by TalkLeft. In short, despite what Time might think, Congress crafted language to explicitly prevent the secret court from issuing surveillance warrants for "mundane" criminal acts (which require a higher standard of proof before judges can grant them).
Along comes the draft of the Patriot Act. Ashcroft initially requested that the requirement that intelligence gathering be the primary purpose of the application be reduced to simply "a purpose" from "the primary purpose."

Congress balked and a compromise was worked out. The final Patriot Act language (which is now law) requires FISA court warrants be issued only for applications that allege intelligence gathering is a "significant purpose" of the request.

Ashcroft, unhappy with the Patriot Act's language, then tried an end-run against Congressional intent by declaring that law enforcement purposes (rather than counter-intelligence or counter-terrorism) can be a primary purpose of a Spy Court surveillance request.

As Time would have it, the Spy Court is suddenly a bastion of liberal, pro-terrorist judges attempting to subvert Ashcroft's heroic efforts to secure the Homeland against foreign aggression. But as TalkLeft notes, the Spy Court has approved 13,000 surveillance requests since its inception, and turned down just one.

Fact is, the court has made a ruling consistent with Congressional intent, and the administration is furious. They are appealing the case (the first appeal in the court's history), but due to the court's bizarre nature, the appeals court will hear one argument -- that of Ashcroft's Justice Department. No other groups are allowed to argue or even submit amicus briefs.

This is indeed a complex issue, but one with sweeping ramifications for our freedoms. And the whole process will be conducted behind close doors, with no participation from interested parties beyond the Justice Department.

Depressing. No wonder I'm looking forward to baseball tonight.

Posted September 04, 2002 02:00 PM | Comments (0)


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