Unprecedented Amicus Brief in the FISA Case

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Barry Steinhardt <BSteinhardt () aclu org>
Date: Sun, 22 Sep 2002 09:45:24 -0400
To: Dave Farber <farber () cis upenn edu>
Subject: Unprecedented Amicus Brief in the FISA Case

Dave,

In the first case of its kind, a coalition of civil liberties groups, urged
a secret appeals court to reject the Justice Department's radical bid for
broadly expanded powers to spy on U.S. citizens.

The brief was filed by the ACLU's Technology and Liberty Program, along with
the Center for Democracy and Technology, the Electronic Privacy Information
Center, the Center of National Security Studies, the Open Society Institute
and the Electronic Frontier Foundation.

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.

In our brief we 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 approximately 75 applications for foreign
surveillance where the government has mislead the Court.

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.

The review court's acceptance of the brief is not automatic, but we are
hopeful that the court will take our arguments into account before issuing a
ruling. We believe it is critical that the Court hear ,not only from the
government, but from those who would protect constitutional rights against
Government encroachment.

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 message of the brief was best summed up by one of its principal authors
Ann Beeson, who is Litigation Director of the ACLU Program ,"(B)oth the
lower court and Congress have now said that Attorney General Ashcroft has
gone too far in his interpretation of what the law allows.

The brief and supporting materials can be found at
http://www.aclu.org/issues/privacy/FISA_feature.html.

Barry Steinhardt



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