ALAWON v11n0095 (November 25, 2002) URL = http://www.infomotions.com/serials/alawon/alawon-v11n0095.txt ALAWON: American Library Association Washington Office Newsline Volume 11, Number 95 November 25, 2002 In This Issue: Special Appeals Court Grants FBI Enhanced Surveillance Powers A three-judge special appeals court, called the United States Foreign Intelligence Surveillance Court of Review, ruled on November 18th that the Justice Department has broad new powers under the USA PATRIOT Act enacted last year to use wiretaps obtained for intelligence operations to prosecute terrorists. The Court found that the USA Patriot Act allows intelligence investigators and criminal prosecutors to more easily share information about ongoing terrorism and espionage cases. In issuing its first opinion ever, it said that the lower court, the Foreign Intelligence Surveillance Act Court, had erred when it tried to impose restrictions on the Justice Department. In May, the FISA Court, which decides whether to grant intelligence authorizations for wiretaps, ruled on an application submitted by government investigators. The three members of the court had ordered the Justice Department to show that the primary purpose of the application was for intelligence gathering and not a criminal case. Moreover, the court had ruled that prosecutors in the Justice Department's Criminal Division could not take an active role in directing the activities of the intelligence division. After the FIS Court of Review ruling, 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. Criminal prosecutors had been prohibited, for more than 20 years by Justice Department guidance, 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. Attorney General John Ashcroft 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. In a statement on the FIS Court of Review ruling, Senator Patrick Leahy (D-VT) said, "In listening to some of the Justice Department's interpretation of this decision you would think that the review court had thrown out the constitutional restraints and thrown open everyone's door to government snooping. That is not the case, and it would be wise for the Justice Department to read the decision more closely.... This opinion does underscore the importance of increased oversight in the future, and also of enhanced reporting of unclassified information so that Congress has at least basic information about how well or poorly the law is working." It is unclear whether anybody is in a position to appeal the FIS Court's ruling to the Supreme Court. The only party was the Justice Department, which won. While the American Civil Liberties Union and the National Association of Criminal Defense Lawyers filed briefs, they were afforded only friend-of-the-court status, which does not entitle them to appeal. For more information and a link to the ruling, see http://www.nytimes.com/2002/11/19/national/19COUR.html ****** ALAWON (ISSN 1069-7799) is a free, irregular publication of the American Library Association Washington Office. All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. To subscribe to ALAWON, send the message: subscribe ala-wo [your_firstname] [your_lastname] to listproc@ala.org or go to http://www.ala.org/washoff/alawon. To unsubscribe to ALAWON, send the message: unsubscribe ala-wo to listproc@ala.org. ALAWON archives at http://www.ala.org/washoff/alawon. ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite 403, Washington, D.C. 20004-1701; phone: 202.628.8410 or 800.941.8478 toll-free; fax: 202.628.8419; e-mail: alawash@alawash.org; Web site: http://www.ala.org/washoff. Executive Director: Emily Sheketoff. Office of Government Relations: Lynne Bradley, Director; Camille Bowman, Mary Costabile, Don Essex, Patrice McDermott and Miriam Nisbet. Office for Information Technology Policy: Rick Weingarten, Director; Jennifer Hendrix, Carrie Russell, Claudette Tennant. ALAWON Editor: Bernadette Murphy.