A court's troubling secrecy
© St. Petersburg Times
published September 15, 2002
It is troubling that the first-ever hearing of a special federal appellate court, whose function is to review decisions on the extent of the government's wiretap authority, was conducted in secret and without input from any source outside the Justice Department.
Earlier this month, the department went before the Foreign Intelligence Surveillance Court of Review -- a special three-member court whose members are chosen by U.S. Supreme Court Justice William Rehnquist -- seeking to overturn a lower court ruling limiting its ability to use foreign intelligence wiretaps for criminal prosecutions. For the sake of our constitutional traditions, the department should lose its appeal.
Because the Fourth Amendment's prohibition on unreasonable searches could potentially hamper counterintelligence efforts, government agents conducting surveillance to unearth a spy or terrorist have been able to operate under far looser rules. Unlike a criminal probe, wiretaps sought for the purpose of foreign intelligence gathering are granted without the government's having to make a showing of probable cause. Civil liberties problems arise when the process of investigating espionage becomes entwined with criminal prosecutions. When that happens, the lower standard for wiretaps can look less like a necessary concession for the purpose of protecting national security and more like a convenient way for prosecutors to skirt the Constitution.
This danger was highlighted in an unprecedented ruling released recently by a secret lower court established by Congress in 1978 for the sole purpose of fielding foreign intelligence wiretap and other surveillance requests. For the first time since its inception -- after approving more than 10,000 wiretap applications and rejecting none -- the court balked at a government request. The court said it had been misled by the FBI and Justice Department for years and found serious errors in more than 75 foreign surveillance applications. It refused to grant the department's request to interpret the new USA Patriot Act as further dissolving the division between counterintelligence operations and domestic law enforcement.
The department appealed this ruling to the special Court of Review -- a body that also was created in 1978 but never before had a reason to convene.
Unfortunately, its first appellate proceeding was no model of fairness. It was conducted in secret, and no party other than the government was able to present arguments. Civil liberties groups tried to send briefs and supporting information, but all their efforts were rebuffed.
The Court of Review has the power to determine the extent of Americans' privacy. The public has a substantial interest in seeing that both security and liberty are protected. It behooves the court to hear from the liberty side of the argument before deciding whether privacy is expendable.
With such high stakes, the public should have been allowed to observe as much of the proceeding as possible. If there was a point at which classified information was exchanged, the judges could have considered it privately.
As a small consolation, the court has informed the Senate Judiciary Committee that it will be provided with an unclassified copy of the judgment and transcript when it becomes available. Those documents should be made public as well.
The gravity of this decision cannot be overstated. The Justice Department wants to dismantle one of the most valued guarantees of the Constitution: protection from abusive and arbitrary intrusions by government. It should not be allowed to go down this road any further than it already has.
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