Independent Perspective News

By NEIL A. LEWIS

A special federal appeals court ruled today that the Justice Department has broad new powers under the antiterrorism bill enacted last year to use wiretaps obtained for intelligence operations to prosecute terrorists. The immediate effect of the ruling by the three-member panel is that criminal prosecutors may now take an active role in deciding how to use wiretaps authorized by a special intelligence court and should have greater access to information obtained from them. For more than 20 years, prosecutors have been prohibited from making decisions on which intelligence wiretaps to apply for because the standards of proof are widely believed to be lower than for regular criminal wiretaps.

But the judges today said that the passage of the legislation, the USA Patriot Act, ensured that there is no wall between officials from the intelligence and criminal arms of the Justice Department. In fact, the judges asserted that the 20-year-old practice of keeping the two largely separate was never required and was never intended by Congress.

"Effective counterintelligence, as we have learned, requires the wholehearted cooperation of all the government's personnel who can be brought to the task," the panel wrote. "A standard which punishes such cooperation could well be thought dangerous to national security." [Excerpts, Page A19.]

Today's unanimous ruling was a significant victory for Attorney General John Ashcroft, who announced immediately that he would use it to greatly expand the use of the special intelligence court by prosecutors to obtain wiretaps of people suspected of involvement with terrorists.

"This is a giant step forward," Mr. Ashcroft said at the Justice Department, adding that he would swiftly increase the number of lawyers both at the Federal Bureau of Investigation and in prosecutors' offices around the country to seek authorization for new wiretaps and surveillance orders to combat terrorism.

"This revolutionizes our ability to investigate terrorists and prosecute terrorist acts," he said.

The ruling also adds momentum to the Bush administration's determination to shake off restrictions on how investigators have operated since the Sept. 11 attacks, including the lifting of restrictions on investigators using the Internet to compile databases for combating terrorists. It may also oblige the F.B.I. to share information gathered by its counterintelligence agents more readily.

Both the appeals court and the court whose opinion it overturned today were created solely to administer a 1978 law allowing the government to conduct intelligence wiretaps inside the United States. The three-member appeals court, the United States Foreign Intelligence Surveillance Court of Review, in issuing its first opinion ever, said that the lower court, the Foreign Intelligence Surveillance Act Court, had erred when it tried to impose restrictions on the Justice Department.

The Court of Review, which had never met before and essentially existed on paper, 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.

Because of the unusual nature of the law on which the case was decided it is unclear whether anybody is in a position to appeal today's ruling to the Supreme Court. The only party was the Justice Department, which won; the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, who filed briefs, were afforded only friend-of-the-court status, which does not entitle them to appeal.

Ann Beeson, a litigation director at the civil liberties union, said her group was exploring whether to seek to be allowed to intervene as a party.

The case arose in May when the lower court, which decides whether to grant intelligence authorizations, ruled on an application submitted by Mr. Ashcroft's investigators. At the time, the court ordered the government to meet certain conditions to obtain the authorization to wiretap an individual who is identified in court papers only as a resident of the United States who is working as an agent of a foreign power.

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