In the ongoing war on terrorism, freedom took another sucker punch on Monday. A secret appeals court opened the door for increased surveillance of Americans.
The Foreign Intelligence Surveillance Court of Review made the ruling _ a first. Until this year it hadn't been called upon to hear a single appeal since its establishment in 1978. The court was set up to hear appeals by the federal government in cases where the lower level secret court _ the Foreign Intelligence Surveillance Court _ denied the FBI wiretap or surveillance authority in its efforts to track the activities of foreign agents in the United States. But since the lower court had never turned down a government wiretap request for its first 23 years of existence, the court of review didn't have any work.
All that changed in May when, in a decision joined by all seven judges who field Foreign Intelligence Surveillance Act warrant requests, a government application was rejected. In addition to scolding the Justice Department over the 75 times the FBI had abused its authority relative to FISA warrants, the judges unanimously found that the newly passed USA Patriot Act did not dismantle the traditional wall between domestic intelligence and law enforcement.
The Justice Department appealed, and on Monday, the appellate court, its members all hand-picked by U.S. Supreme Court Chief Justice William Rehnquist, found in favor of the department. The court said there is no constitutional bar to allowing criminal prosecutors to direct intelligence investigations. Congress, said the court, intended to encourage this type of coordination under the Patriot Act.
The ruling is destructive of American freedoms. There is a very real danger that prosecutors will use the FISA courts as a way around the Constitution's protections against unreasonable searches.
The FBI under J. Edgar Hoover had unleashed an army of agents to surveil Americans whose only "crime" was involvement in left-wing political causes. These abuses were reined in by limiting wiretapping. Surveillance by the FBI was authorized only if there was evidence the target was intending to or had engaged in criminality. But Congress recognized that there had to be an easier standard for snooping on suspected spies. The FISA courts were established for this purpose.
Now, thanks to the review court, prosecutors can use the FISA courts even when their investigations primarily involve law enforcement matters, not foreign intelligence.
Attorney General John Ashcroft could not have been more pleased by the ruling. He immediately announced a doubling of the number of attorneys handling FISA warrant requests. Ashcroft wants more domestic surveillance and he wants it fast. In announcing the new initiatives, Ashcroft gave some lip service to respecting civil liberties, but it is not to be believed. This is the man who claims he does not have to disclose _ even to Congress _ the names of hundreds of people detained following Sept. 11. This is the man who says deportation hearings can be held in secret and supports the ability of the Defense Department to hold Americans labeled enemy combatants indefinitely and without charge. He has little interest in the Bill of Rights beyond thinking up ways to undermine it.
There is little hope that the Supreme Court will come to the rescue. The case can only be appealed by the Justice Department since it is the only party allowed to appear before the secretive FISA courts. Obviously Ashcroft is not interested in any appeal. Which means the fix lies in Congress. Lawmakers should revisit the Patriot Act, the law that sailed through a cowed Congress only weeks after Sept. 11, and make the necessary clarifications. Strict warrant requirements keep law enforcement in check and guard against abuse. Members of Congress know this in their heart; now the question is whether they have the will to do anything about it.